BTD at TalkLeft demolishes the Libby Amici brief

big tent democrat over at talkleft develops a strong argument for why the amici curiae brief (PDF) filed by the 9 "concern troll"* constitutional lawyers (see my previous post here), contending that fitzgerald's appointment as special prosecutor was unconstitutional because it was, in legal terms, a "special office" that required presidential appointment and senate confirmation, is groundless...

from Weiss v. United States, 510 U.S. 163 (1994)...

[O]fficers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.

it seems perfectly clear to me, even as one who doesn't know law from a bag of apples... as btd states...

Fitzgerald was already an appointed and confirmed United States Attorney when Acting Attorney General Comey appointed him as Special Counsel to investigate the Plame leak matter.

[...]

Fitzgerald was carrying out the exact role for which he was appointed and confirmed. There is nothing new in what Fitzgerald did in the Plame investigation that he did not do every day in his role as U.S. Attorney for the Northern District of Illinois.

The discussion of whether Fitzgerald was appointed to an office requiring appointment is a red herring. The very cases that the amici cite for their argument demonstrate this. Fitzgerald would not need a second appoint and confirmation process to act as Special Counsel.

In short, the amici, who couch their brief in language of law professors expressing Constitutional concern, have merely rehashed a bad argument made by Libby's principal attorneys in poor and incomplete fashion. It is a bad piece of work.

one thing you can go to the bank on... if judge walton rejects this argument, these 9 trolls will seek a higher review...

* i'm deviating from the original definition of the term as contained in dKosopedia...

"Concern Trolls". Marginally more clever, they pretend at being progressive Democrats, but at every turn seem to suggest the most obviously damaging or boneheaded or offensive thing they can. These are easier to catch than you might imagine: since it hardly matters whether someone is an obvious concern troll or just an unmitigated idiot, sometimes it doesn't pay to think about it too hard.

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