9407f455-0dc5-4c96-920b-b6557183b9d3.gifAs with the run up to the Libby Trial, it seems like a good idea to give you guys some background and foundation in the applicable law so that you will be better able to understand and evaluate the questions and answers you will hear during the Comey testimony.

Let's start with the Constitution, shall we?

Article II, Section 2 of the United States Constitution provides in pertinent part:

The President shall be the commander in chief of the army and navy …………

…..he may require he opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, ……

………..he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may by law vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.

The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session.

[emphasis mine]

Remember back when Team Libby tried to get PatFitz thrown off the case by saying that the delegation of authority to him was unconstitutional? Well, the filings that Team Fitz put in, including affidavits from both PatFitz and Comey demonstrated that Special Counsels, like US Attorneys are "inferior officers"/ So, according to the constitution, Congress may set the terms of their hiring and firing.

And Congress did so. Here is a sampling of some relevant statutes.

You will notice in the statues quoted that the terms "serves at the pleasure of the President" or "subject to removal for any reason or no reason" do not appear. Please rest assured, I did not edit them out. They are not present in the statutory framework, so before we all trip all over ourselves accepting these interpretations as gospel; remember, the folks selling those interpretations are only giving you that: interpretations–which are subject to change.

A few terms to get straight US Attorneys, Assistant US Attorneys and Special Assistant US Attorneys. Title 28 of the US Code defines them and specifies how they are appointed:

 28 USC § 541 United States attorneys

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a Unites States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by he President.

28 USC § 542  Assistant United States attorneys

(a) The Attorney General may appoint one or more assistant United States attorneys in any district when the public interest so requires.

(b) Each assistant Unites States Attorney is subject to removal by the Attorney General.

28 USC § 543  Special Attorneys

(a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires.

(b) Each attorney appointed under this section is subject to removal by the Attorney General.

In 1868 Congress created a method of filling vacancies that might occur is a USA (or US Marshal)left office.

In the case of a vacancies in the office of marshal or district attorney [the old name for US Attorneys, not to be confused with local DAs] in any circuit, the judge of such circuit may fill such vacancy, and the person so appointed shall serve until an appointment shall be made by the President and the appointee has duly qualified, and no longer ….,

This provision was later codified into 28 USC§ 546. That argument that Gonzales keeps trying to float, that they had to slip that provision into the Patriot Act to allow the AG to appoint USAs w/o having to have them confirmed by the Senate because is might be an unconstitutional violation of separation of powers?

Hogwash. Article ii, Section 2 has already told us that inferior officers can be appointed by the courts.  What, they didn't teach that  section in the Constitutional Law class Alberto took in law school?

Anyway, so they insert that ridiculous change into the Patriot Act and recently Congress purportedly changed it back, only not quite. Under the latest version, the AG still has role in appointing interim USAs. It's a compromise.

28 USC § 546 Vacancies

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for a district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of

     (1) the qualification of a United States attorney for such district    appointed by the President under section 541 of this title; or

    (2) The expiration of 120 days after appointment by the Attorney General under this section.

(D) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

I want you to take note of the use of the permissive word "may" and the compulsive word "shall" as it appears throughout these statutes. There is a big difference in meaning between the two under the rules of statutory construction.

First thing tomorrow morning I will have another post up to get you in the mood for the liveblogging.



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.