## Facts

- A federal grand jury indicted I. Lewis “Scooter” Libby, a senior Executive Branch official, on five counts of obstruction of justice, making false statements, and perjury arising from statements to the FBI and grand jury during an investigation into disclosure of a CIA employee’s identity.
- The Attorney General recused from the investigation, and the Deputy Attorney General issued letters appointing Patrick J. Fitzgerald, a Senate-confirmed U.S. Attorney, as Special Counsel for the matter.
- The appointment letters delegated to Fitzgerald “all the authority of the Attorney General” for the investigation and related prosecutions and described his work as independent of ordinary Department of Justice supervision.
- Libby moved to dismiss the indictment, arguing the delegation violated federal statutes governing the Attorney General’s litigating and supervisory authority and violated the Appointments Clause because Fitzgerald functioned as a principal officer.

## Issues

1. Whether the Deputy Attorney General (acting for the recused Attorney General) could lawfully delegate the Attorney General’s functions in this matter to a Department of Justice officer under 28 U.S.C. § 510, consistent with 28 U.S.C. §§ 509, 516, and 519.
2. Whether the scope of Fitzgerald’s appointment made him a principal officer requiring presidential appointment and Senate confirmation under the Appointments Clause, rather than an inferior officer.

## Decision

- The court denied the motion to dismiss the indictment.
- The court held the delegation was authorized by statute, including 28 U.S.C. § 510, because Fitzgerald was an officer within the Department of Justice.
- The court held Fitzgerald was an inferior officer because his jurisdiction and duties were limited to a specific matter, his tenure was temporary, and he was removable by superior Executive Branch authority.

## Legal Principles

- 28 U.S.C. § 510 permits the Attorney General (and an Acting Attorney General for a recused matter) to delegate Attorney General functions to other Department of Justice officers, operating as an exception to otherwise broad vesting and supervision provisions in 28 U.S.C. §§ 509, 516, and 519.
- Statutory requirements that litigation be conducted “under the direction” of the Attorney General are satisfied where a superior Department official retains ultimate authority to define, limit, and revoke a special delegation and to remove the delegate for cause; day-to-day oversight is not required.
- For Appointments Clause purposes, an officer is “inferior” when the officer’s work is ultimately directed and supervised at some level by a Senate-confirmed superior, including through limits on jurisdiction and duties, temporary tenure, and removability.

## Conclusion

The court refused to dismiss the indictment, concluding that the Deputy Attorney General validly delegated prosecutorial authority to a Department of Justice officer under § 510 and that the Special Counsel’s limited, removable role made him an inferior officer whose appointment complied with the Appointments Clause.


United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006)