http://www.msnbc.msn.com/id/19116347/
WASHINGTON - What happens when a dozen prominent law professors from across the legal spectrum - from Robert Bork to Alan Dershowitz - petition the judge in the Libby case to give credence to the concept that Special Counsel Patrick Fitzgerald's constitutional authority in prosecuting the case is in question?
U.S. District Judge Reggie Walton will have to address the issue next week when he has been asked by Libby's attorneys to consider releasing their client on bond pending appeal of his conviction for perjury and obstruction of an FBI investigation of the leak of CIA agent Valerie Plame's name to reporters.
The 12 professors write, in a joint amicus brief, "The constitutional issue to be raised on appeal is substantial."
"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.
Was Fitzgerald given too much power and too little accountability?
The professors argue the Special Counsel's appointment was unique since he was not appointed by the president or approved by the Senate and exempted from complying to some Justice Department policies.
The legal minds write, "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."
They argue Fitzgerald had "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 was "directed to act 'independent of the supervision or control of any officer of the Department.'"
They also argue that Fitzgerald's appointment and prosecutorial powers were beyond the scope of the constitution, "With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed "superiors" politically accountable for his actions, and it is at the very least a close question whether the mere power of removal does anything to solve the problem."
U.S. District Judge Reggie Walton reluctantly agreed to hold a hearing next Thursday to address the issue of whether to grant bond while the former White House aide awaits his fate in prison. If Walton denies that, Libby would have to surrender to authorities within 45 to 60 days and pay a $250,000.00 fine.
On Tuesday Walton said, "Mr. Libby failed to meet the bar. For whatever reason, he got off course."
