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Plenary Powers


Commentor Bob Schacht asked a question a while back about why Special Counsel Patrick Fitzgerald cannot use his "plenary powers" to expand his investigation into other kinds of wrongdoing. I was on my way out of the threads at the time and merely said that "plenary powers" didn't mean what he thought it meant and I would maybe do a post on that because it seemed to be source of confusion for a lot of folks who would like to see the tall man take on the Walter Reed scandal, "Purgegate" and a whole host of other problems right up to and probably including rescuing a kitten stuck up a tree.

Recently, Bob reminded me that I have yet to make good on that promise:

Are we into EPU already? I send a shout to looseheadprop, who a week or more ago promised a post on Fitzgerald's plenary powers, and why they are not as far reaching as one might think after reading Comey's scope of powers commission. Did I miss it? I am interested in this subject.

Fitzgerald derives his plenary powers from the initial letter appointing him as Special Counsel which reads in pertinent part:

…delegate you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any offices of the Department…

You see, the plenary powers relate only to the narrow subject matter of "the alleged unauthorized disclosure of a CIA employee's identity." This was further clarified by a subsequent letter where the famous "plenary powers" language crops up:

"all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosre of a CIA employee's identity" is plenary and inclused the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committees in the course of and with intent ot interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue….

Please note that by the very language of this letter that the "plenary powers" are related solely to violations of law "related to the underlying alleged unauthorized disclosure" and to obstructions of the investigation in the unauthorized disclosure. Shorter version, Fitz had very narrowly drawn subject matter jurisdiction. This was made even more clear during the litigation of a motion offered by the Libby defense team in which they asserted that Fitz’s appointment was improper. Fitzgerald and Comey were able to establish that Fitz was indeed an "inferior officer" because although he had all the powers of the Attorney General with respect to this one narrow area of inquiry, it was limited solely to that one narrow area.

Consequently the repeated calls in some parts of the blogosphere for the tall man in the rumpled suit to dive in and investigate this scandal or that are completely without legal foundation. He simply does not have the power to do that. He cannot unilaterally expand his mandate. Shorter version: he's just a lawyer, not a superhero; wears a rumpled suit, not tights and a cape.

He also has exhibited none of the over ambition nor unseemly self aggrandizement of some of the other special prosecutors who have come before him. There have been no daily impromptu press conferences in his driveway while he hauls out a Heftybag full of household trash, no requests to expand his subject matter jurisdiction involve himself in other people's civil litigations, no swanning about on talk shows.

This is real life folks, and this was simply a profession criminal investigation (which was, ahem, obstructed from reaching its ideal conclusion) followed by a professional criminal trial and conviction on more than ample evidence of the crimes for which legally sufficient admissible evidence existed, not some comic book with "kerpow" in the text balloon.

We should not try to convert a serious somber event (please remember that Scooter Libby is looking at going to jail for a significant period of time, even if he deserves every minute of it, it is still a very sad thing for him and his family to deal with), done by a serious person into some silly call for one guy who is supposed to single handedly right every wrong, solve every mystery, fix every problem for us.

The thing about participatory democracy is, we get to solve our own problems.

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In rugby, the looseheadprop is the player in the front row of the scrum, who has the ability to collapse the scrum, pretty much at will and without the referee knowing who did it.
While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
Consequently, playing this position makes you understand your responsibility to put doing the right thing ahead of winning, and to think beyond your own wants and desires. It also makes you very law and order oriented.