Could Fitzpatrick's game be called on Constitutional Technicality? It very well could be. It seems as laid out in this artical in the New York Sun, that there has been a "slight" mistake made regarding the "appointment" as "special prosecutor". Could this sink the Fitzpatrick ship?

Libby's First Defense
New York Sun Editorial, February 24, 2006


The last time we checked in on the criminal case of the man who served as Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, it was an editorial of December 8, 2005, "A Season for Giving." We offered a series of reasons why our readers might see fit to donate to the legal defense trust set up for Mr. Libby's defense. "One could be a neo-conservative who believes that the Iraq war spread freedom. One could be a defender of the freedom of the press who believes that government officials in America should be free to talk to the press without fear of being thrown in prison by a prosecutor. One could be a Clinton loyalist who remembers how special prosecutors were used against the previous administration. One could be a believer in a strong presidency who thinks the whole idea of criminalizing policy differences has a tendency to sap the boldness of the president. Finally, one could just be a believer in the underdog and want Mr. Libby to have a fair fight against the special prosecutor."

Yesterday, a federal court filing by Mr. Libby's team before Judge Reggie Walton raised another good reason in Mr. Libby's favor - the appointments clause of the Constitution. It was a well-crafted, and by our lights, persuasive shot across the bow of the prosecutor. The motion to dismiss filed yesterday signaled that Mr. Libby is on offense, prepared to fight the constitutional issues in this case all the way to the Supreme Court. The argument is that the indictment should be dismissed "on the ground that it was obtained, approved and signed by an official - Special Counsel Patrick Fitzgerald - who was appointed and exercised his powers in violation of the appointments clause of the Constitution."

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