A dozen prominent law professors are questioning whether Special Counsel Patrick Fitzgerald had constitutional authority in the CIA-leak trial that this week sentenced former White House aide I. Lewis “Scooter” Libby Jr. to prison.
The push comes as Libby’s lawyers, who make the same argument, prepare to appeal his 2½-year sentence.
“The constitutional issue to be raised on appeal is substantial,” conservative Robert Bork, liberal Alan Dershowitz and 10 other professors wrote in their nine-page brief filed Thursday at U.S. District Court in the District of Columbia.
“To our knowledge, the special counsel appears to occupy virtually a ‘class of one’ in the history of special prosecutors,” the professors wrote.
The professors argue that Mr. Fitzgerald may have been given too much power with too little accountability because he was not appointed by the president or approved by the Senate. Moreover, they say, Mr. Fitzgerald was exempt from complying with Justice Department policies — even though he was appointed by the attorney general.
“It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch,” the professors wrote.
Libby could have a better chance of release if his supporters can convince the judge that the constitutional question is a close call.
Mr. Fitzgerald was appointed special counsel in 2003 by his former colleague and friend, then-Deputy Attorney General Jim Comey.
By Andrew P. Napolitano
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