Opinion

United States v. Libby

498 F. Supp. 2d 1
2007 U.S. Dist. LEXIS 44663
2007 WL 1810109

Court: District Court, District of Columbia
Filed: Jun 21, 2007
Status: Published
Author: Walton
On the bench: Walton
Cited by: 24 cases
Authority: More cited than 84.2%

“In enacting § 3143(b), Congress placed the burden as to all elements bearing on whether to grant bail pending appeal on the defendant.” (quotation marks, brackets, and citations omitted)

How later courts described this case

“In enacting § 3143(b), Congress placed the burden as to all elements bearing on whether to grant bail pending appeal on the defendant.” (quotation marks, brackets, and citations omitted)

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION

WALTON, District Judge.

On March 6, 2007, the defendant was convicted on four counts of obstruction of justice, perjury, and making false statements to federal investigators. On June 5, 2007, as a consequence of these convictions, the defendant was sentenced,

inter alia,

to a term of thirty months imprison

ment.

Upon the imposition of the sentence, the defendant requested that he be released on bond pending his appeal pursuant to 18 U.S.C. § 3143 because one or more of the issues he plans to raise on appeal constitute “substantial question[s] of law or fact likely to result in [a reversal of his convictions or an order for a new trial].” 18 U.S.C. § 3143 (b) (2000);

see also

I. Lewis Libby’s Motion for Release Pending Appeal (“Motion”) at 2-5; I. Lewis Libby’s Reply in Further Support of His Motion for Release Pending Appeal (“Reply”) at 1. The government opposes the defendant’s request. Government’s Response in Opposition to Defendant’s Motion for Release Pending Appeal (“Opp.”) at 1. For the following reasons, and in accordance with the Court’s oral orders issued at the June 14, 2007 motions hearing, the defendant’s motion for release pending appeal is denied.

I. Legal Standard

The United States Code requires that a federal criminal defendant “who has been found guilty of an offense and sentenced to a term of imprisonment” be detained during the pendency of his appeal, unless the Court finds (1) that the person does not pose a flight risk or a danger to the community;

and

(2) “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in ... reversal[ ][or] an order for a new trial.”

18 U.S.C. § 3143 (b)(1). Thus, under § 3143(b), “[t]he law has shifted from a presumption of release to a presumption of valid conviction,”

United States v. Perholtz,

836 F.2d 554, 556 (D.C.Cir.1988) (citation omitted), and the defendant bears the burden of rebutting this presumption and “demonstrat[ing] that he has a substantial question to present [upon appeal] before he may be admitted to bail,”

United States v. Shoffner,

791 F.2d 586, 589 (7th Cir.1986);

see United States v. Colon Berrios,

791 F.2d 211 , 214 n. 4 (1st Cir.1986) (stating that “[i]n enacting § 3143 [(b)], Congress placed the burden as to all elements bearing on whether to grant bail pending appeal on [the] defendant ]”) (emphasis in original) (citations omitted);

see also

Reply at 1 (stating that “[t]he government is correct that it is the defense’s burden to show that Mr. Libby will raise substantial issues on appeal”).

United States v. Perholtz,

the District of Columbia Circuit held that an issue is “substantial” for the purposes of § 3143(b) if it “is a close question or one that very well could have been decided the other way.”

Perholtz,

836 F.2d at 555 (internal quotation marks and footnote omitted);

see also id.

at 45 n. 17 (noting that “[t]he Deputy Attorney General ... set forth explicit parameters in which the Special Counsel could operate”); and (4) Fitzgerald’s tenure is limited in that his authority expires “[a]s soon as [he] has completed his assigned task,” id. at 45;

see also id.

(concluding that the Special Counsel “has no ongoing responsibilities that extend beyond the accomplishment of the mission that [he] was appointed for and authorized to undertake”) (quoting

Morrison,

487 U.S. at 672 , 108 S.Ct. 2597 ) (internal quotation marks, bracketing, and ellipsis omitted). The Court therefore held that “just as the independent counsel in

Morrison

was deemed to be an inferior officer, the same is true for Special Counsel Fitzgerald.”

Id.

The defendant asserts that the District of Columbia Circuit could very well rule that, under

Morrison ,

the Special Counsel is a principal officer within the meaning of the Appointments Clause because one or more of the

Morrison

factors do not apply.

See

Reply at 3 (contending that “[b]ecause the office[s] at issue in

Morrison

and in this case differ in several significant respects ... it is at least a close question whether

Morrison

applies at all”). For the reasons articulated in its April 27, 2006 Memorandum Opinion and during the June 14, 2007 hearing, the Court is unconvinced that this case is a close question under

Morrison .

Not only are all of the factors present in

Morrison

plainly met in this case as well,

see Libby,

429 F.Supp.2d at 40-45 , but the fact that the Special Counsel is removable

at will

makes the question in this case an even easier one than was presented in

Morrison

— in which the Supreme Court concluded that the independent counsel was “clearly” an inferi- or officer,

Morrison,

487 U.S. at 671 , 108 S.Ct. 2597 — in at least that one important respect.

See id.

at 716 , 108 S.Ct. 2597 (Sealia, J., dissenting) (opining that “[i]f [the independent counsel] were removable

at will

by the Attorney General, then she would be subordinate to him and thus properly designated as inferior”) (emphasis added). The defendant’s points of disagreement with the Court’s application of the

Morrison

factors are predicated on illogical leaps of reasoning and inferences

*10

that no appellate court is likely to draw based on the facts of this case.

See

Reply at 3-5; Defi’s Mem. at 19-21.

For example, the defendant argues that an appellate court “might well conclude that ... unlike the independent counsel [in

Morrison

], Mr. Fitzgerald is not obligated by any statute or regulation to comply with Justice Department policies and regulations” and that his power to act is therefore unconstitutionally unrestrained. Reply at 3. The defendant’s primary argument in this regard is that the February 6, 2004 letter from Comey to Fitzgerald “expressly relieves Mr. Fitzgerald of any obligation to comply with 28 C.F.R. § 600

et seq.” Id.

at 4. As discussed above, however,

see supra

at n. 12, this regulation, one provision of which does indeed require compliance with Department of Justice policies and procedures, applies only to Special Counsel who have been appointed from positions

outside the federal government.

28 C.F.R. § 600.3 . It therefore has no application when an individual from within the Justice Department — someone who is already obligated to abide by internal Department policies — is delegated the authority to act as Special Counsel, as Fitzgerald clearly was.

Nor is it convincing to claim, as the defendant does, that an appellate court might well decide that Fitzgerald is no longer bound by Department of Justice rules and regulations because he has been “relieved of numerous other requirements otherwise binding on a [United States] Attorney” in his capacity as Special Counsel. Reply at 4. The defendant substantially overstates the plausible breadth of the authority granted to Fitzgerald by the Co-mey letters. They do not confer upon Fitzgerald as Special Counsel the prosecu-torial equivalent of James Bond’s license to kill, and are unlikely to be read by any court as a blank check “permitt[ing][him] to ignore well-established Department of Justice policies without any clear authorization to do so.”

Libby,

429 F.Supp.2d at 41-42 . Rather, the letters delegate to Fitzgerald “all the authority of the Attorney General” within the limited sphere of the Píame investigation, Def.’s Mem., Ex. C at 1, an authority which allows him, in his role as Special Counsel, “to bypass certain approval requirements contained in the regulations and policies, not to ignore them altogether,”

Libby,

429 F.Supp.2d at 42 . As the Court explained in its April 27, 2006 Memorandum Opinion, “the Attorney General himself is obligated to comply with Department of Justice rules and regulations.”

Id.; see, e.g.,

5 C.F.R. §§ 735

et seq.

(2007), 2635

et seq.

(2007) (prescribing standards of ethical conduct for employees of the Executive Branch, including the Department of Justice, and defining “employee” as

“any officer

or employee of an agency, including a special Government employee”) (emphasis added); 28 C.F.R. §§ 45

et seq.

(2007) (applying and supplementing §§ 735 and 2635 with respect to Department of Justice employees), 50

et seq.

(2007) (setting forth statements of policy applicable to “personnel of the Department of Justice”);

cf.

Exec. Order No. 350-65, 30 Fed.Reg. 17,202 (Dec. 31, 1965) (stating that “[presidential appointees shall be deemed employees for the purposes of [Department of Justice rules and regulations]”). By conferring upon Fitzgerald “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,” Def.’s Mem., Ex. C at 1, the Comey letters are not, and cannot be, fairly read to give the Special Counsel more power to flout Department regulations than the Attorney

*11

General in fact possesses.

The Court is therefore confident that its conclusion that Fitzgerald’s “appointment as the Special Counsel, a permissible expansion of his role as an officer of the Department of Justice, did not relieve [him] from continued compliance with [Department] regulations and policies, both as a United States Attorney and as Special Counsel,”

Libby,

429 F.Supp.2d at 41 , is not “one that very well could have been decided the other way,”

Perholtz,

836 F.2d at 555 (internal quotation marks and footnote omitted).

3. Section H of the Classified Information Protection Act

The defendant’s argument regarding Fitzgerald’s exercise of authority under the Classified Information Protection Act (“CIPA”), 18 U.S.C. Appx. Ill

et seq.

(2000), is similarly without merit, albeit for different reasons.

See

Reply at 4-5. The defendant contends that in the course of the CIPA proceedings held during the fall and winter of 2006, Fitzgerald assumed certain duties that could only have been performed “by the Attorney General himself or other specifically enumerated members of the Department” and thus could not lawfully have been delegated to the Special Counsel.

Id.

at 4. Specifically, the defendant argues that Fitzgerald improperly exercised the authority to submit to this Court (1) an affidavit pursuant to § 6(a) of the CIPA requesting that the CIPA proceedings be conducted

in camera,

18 U.S.C. Appx. III § 6(a), and (2) affidavits pursuant to § 6(c) of the CIPA “certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information,”

id.

*12

§ 6(c)(2). The defendant claims that Fitzgerald’s submission of the § 6(c) affidavits, in particular, “is compelling evidence that the Special Counsel, with all of his sweeping powers, qualifies as a principal officer under the Appointments Clause.”

Id.

at 5.

The Court first notes that this argument has never previously been raised by the defendant or briefed by the parties. At the time the Court issued its April 27, 2006 Memorandum Opinion denying the defendant’s motion to dismiss the indictment on Appointments Clause grounds, the CIPA proceedings had not yet been initiated, and the defendant did not renew his Appointments Clause argument once it became evident to him that Fitzgerald was handling all aspects of the CIPA process on behalf of the government.

Cf. United States v. Libby,

453 F.Supp.2d 35 (D.D.C. Sept.21, 2006) (discussing § 6(a) of the CIPA); 467 F.Supp.2d 20 (D.D.C.2006) (discussing § 6(c) of the CIPA). In addition, because the defendant first raised the CIPA issue in his reply in support of his motion for release pending appeal, the government has had no opportunity to provide a response brief addressing the defendant’s contentions. Nevertheless, the Court has examined the defendant’s argument regarding the CIPA on its merits to determine whether it transforms the Appointments Clause issue into a close question. It plainly does not.

Section 14 of the CIPA provides that “[t]he functions and duties of the Attorney General under [the CIPA] may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and

may not be delegated to any other official.”

18 U.S.C. Appx. III, § 14 (emphasis added). At the June 14, 2007 hearing, the defendant’s attorney argued that (1) the Special Counsel performed certain functions during the CIPA proceedings that could not have been delegated to him; and (2) the fact that the Special Counsel performed those non-delegable functions is an indication of his “sweeping powers” and suggests strongly that he should be considered a principal officer under the Appointments Clause. Reply at 5. It is true that, by the plain language of § 14, the Special Counsel cannot be delegated certain duties under the CIPA that are expressly assigned by Congress to the Attorney General and his duly designated proxies.

See

*13

18 U.S.C. Appx. III, § 14. It is similarly true that the Special Counsel appears to have performed at least some of these duties, in seeming contravention of § 14.

And if the scope of authority given to the Special Counsel by the Comey letters encompassed duties that no inferior officer could possess, this is indeed strong evidence that the Special Counsel is a principal officer for Appointments Clause purposes.

Here, however, the defendant has not demonstrated, nor even credibly argued, that Comey

intended

for his delegation of authority to Fitzgerald under 28 U.S.C. § 510 to include powers expressly declared to be

non-delegable

to United States Attorneys (such as Fitzgerald) under § 14 of the CIPA. It further follows that if the delegation of these duties under the CIPA was not intended — if, by the terms of his appointment as Special Counsel, Fitzgerald never actually possessed the powers to act in the Attorney General’s stead in submitting §§ 6(a) and 6(c) affidavits in the CIPA proceedings — then the Appointments Clause is not implicated at all, and the defect identified by the defendant is one of statutory, rather than constitutional, dimension.

Indeed, standard principles of statutory interpretation support this conclusion. As the Supreme Court has observed, “it is a commonplace of statutory construction that the specific governs the general.”

Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 384 , 112 S.Ct. 2031 , 119 L.Ed.2d 157 (1992);

see also Rodriguez v. Puerto Rico Fed. Affairs Admin.,

435 F.3d 378, 383 (D.C.Cir.2006) (stating that “the canons of statutory construction require that the specific govern the general”);

Nevada v. Dep’t of Energy,

400 F.3d 9, 16 (D.C.Cir.2005) (noting that the Supreme Court has “reiterated repeatedly ... that ‘a more specific statute will be given precedence over a more general one’ ”) (quoting

Busic v. United States,

446 U.S. 398, 406 , 100 S.Ct. 1747 , 64 L.Ed.2d 381 (1980)). Moreover, under the canon of constitutional avoidance, “every reasonable [statutory] construction

*14

must be resorted to, in order to save a statute from unconstitutionality.”

Gonzales v. Carhart,

— U.S. -, -, 127 S.Ct. 1610, 1631 , 167 L.Ed.2d 480 (2007);

see Clark v. Martinez,

543 U.S. 371, 381 , 125 S.Ct. 716 , 160 L.Ed.2d 734 (2005) (stating that the canon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a statutory text, resting upon the reasonable assumption that Congress did not intend the alternative which raises serious constitutional doubts”) (citations omitted). Thus, the only natural conclusion that can be drawn is that “the general statutory provision” of § 510, which permits the delegation of “any function of the Attorney General,” 28 U.S.C. § 510 , “cannot trump the clear language of the more specific” prohibition on delegation of certain functions of the Attorney General in § 14 of the CIPA,

Dep’t of Housing and Urban Dev. v. Rucker,

535 U.S. 125 , 133 n. 5, 122 S.Ct. 1230 , 152 L.Ed.2d 258 (2002) (citation omitted), particularly when such a construction might be constitutionally problematic.

Cf. Libby,

429 F.Supp.2d at 33-34 (noting that “any delegation of authority [under § 510] is subject to the constitutional limits set forth in the Appointments Clause”). Therefore, a delegation of “all the authority of the Attorney General with respect to the [Píame] investigation” pursuant to § 510 could not have conferred upon Fitzgerald an array of powers and authorities which included duties deemed non-delegable under § 14 of the CIPA, Def.’s Mem., Ex. C at 1, and absent actual evidence or some persuasive argument (neither of which the defendant has presented here) that the scope of the Special Counsel’s authority at the time of the delegation was intended to encompass all functions relating to CIPA proceedings, Fitzgerald’s failure (if indeed there was a failure) to recognize that § 14 foreclosed him from submitting §§ 6(a) and 6(c) affidavits on behalf of the government amounts, at best, to a procedural error, and one that the defendant did not previously bring to the Court’s attention.

Finally, if it is true that the Comey letters did not delegate, and could not have delegated, any authority to Fitzgerald to exercise those “functions and duties” reserved for the Attorney General under the CIPA, 18 U.S.C. Appx. III § 14, then the Special Counsel’s duties are sufficiently limited that he does not possess “all the authority of the Attorney General” even within the boundaries of his particular demesne, Def.’s Mem., Ex. C at 1, and the correctness of the Court’s conclusion regarding the Appointments Clause issue is, if anything, substantially more certain. Applying the

Morrison

factors, it is therefore resoundingly clear that the constitutional status of the Special Counsel as an inferi- or officer for the purposes of the Appointments Clause is not a close question.

*15

Ip. The Edmond Standard and the Continuing Vitality of Morrison

The defendant next suggests that the factors articulated in

Morrison

have been supplanted, either in whole or in part, by the “straightforward rule” set forth in

Edmond ,

Reply at 3, in which the Supreme Court concluded that judges of the Coast Guard Court of Criminal Appeals were inferior officers under the Appointments Clause because “[their] work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Edmond, 520 U.S.

at 663, 117 S.Ct. 1573 ;

see generally id.

at 658-66, 117 S.Ct. 1573 . This argument fails in three respects.

First, there is nothing in

Edmond

to suggest that the

Morrison

factors do not remain a valid method of determining whether an officer is a principal or an inferior for the purposes of the Appointments Clause.

See United States v. Hilario,

218 F.3d 19, 25 (1st Cir.2000) (finding that “[t]he

Edmond

Court did not overrule

Morrison , ...

but cited it as precedent”) (citation omitted);

see also id.

(stating that “[t]he power to remove officers .., is a powerful tool for control”) (citations omitted), the Court concluded that the appointment of such judges by the Secretary of Transportation “is in conformity with the Appointments Clause of the Constitution, since those judges are ‘inferior [o]ffi-cers’ within the meaning of that provision,”

id.

at 666 , 117 S.Ct. 1573 .

The defendant contends that it is at least a close question whether “the ‘direction and supervision’ test set forth in

[Edmond]”

is now the sole rule that should be applied when evaluating challenges under the Appointments Clause. Reply at 2;

see also

Motion at 6 (arguing that “[t]he Court of Appeals ... could well conclude ... that the generally applicable constitutional test for inferior-officer status is not the multi-factor,

ad hoe

balancing test applied in

Morrison ,

but rather the clear test more recently set forth ... in

Edmond”)

(citation omitted). It need hardly be said, however, that the

Edmond

Court’s accurate observation- that

Morrison

“did not purport to set forth a definitive test” for inferior officer status and its acknowledgment that several of the

Morrison

factors were inapplicable in the ease before it in no way amount to a repudiation of the

Morrison

calculus.

Edmond,

520 U.S. at 661 , 117 S.Ct. 1573 . Moreover, nowhere in

Edmond

does the majority remotely intimate that the “direction] and supervision]” on which it based its conclusion constituted the “exclusive criterion” that had theretofor been lacking from the Supreme Court’s examinations of the issue.

Id.

at 661, 663 , 117 S.Ct. 1573 :

see generally id.

at 658-66, 117 S.Ct. 1573 . Instead, the only conclusion that can logically be gleaned from

Edmond’s

amicable treatment of

Morrison

is that the cases articulate two equally plausible and equally valid methods, once a court has examined the facts of a case, for determining whether an officer rises to the level of principal status under the Appointments Clause.

See United States v. Gantt,

194 F.3d 987 , 999 n. 6 (9th Cir.1999) (examining

Morrison

and

Edmond

and concluding that “supervision by a superior officer is a sufficient but perhaps not a necessary condition to the status of an inferior officer”);

see also id.

at 34-46. Indeed, even the defendant concedes that the Court likely would be required to apply the

Morrison

factors if the scope of the authority of the office at issue was sufficiently similar to that of the independent counsel in that case, as the Court has concluded that they are. Reply at 3 (stating that

“Morrison

might dictate the outcome if a court were confronting a special prosecutor whose authority was identical to that of the independent counsel [in

Morrison

] in all material respects”) (emphasis omitted). Accordingly, because

Morrison

remains the Supreme Court’s only examination of the status that a federally appointed prosecutor specifically tasked with the investigation of high-ranking Executive officials properly holds under the Appointments Clause, and because neither

Edmond

nor any other subsequent Supreme Court decision has cast doubt upon the applicability of the factors employed by the

Morrison

Court as a general matter in assessing such status, the Court’s conclusion that the

Morrison

factors are dispositive of the Appointments Clause issue in this case is surely not “one that very well could have been decided the other way.”

Perholtz,

836 F.2d at 555 (internal quotation marks and citation omitted).

Second, even if the defendant is correct that the

Edmond

formulation should now be considered a necessary (if not by itself sufficient) predicate for concluding that an office is inferior for Appointments Clause purposes, he has still failed to present “a substantial question of law or fact” under § 3143(b). 18 U.S.C. § 3143 (b)(1);

see

Motion at 7 (contending that “[t]he Court of Appeals could well agree ... that ‘having a superior officer is necessary for inferior officer status, but not sufficient to establish it,’ without something more”) (quoting

Edmond,

520 U.S. at 667 , 117 S.Ct. 1573 (Souter, J., concurring)). That is, the Special Counsel’s status as a constitutionally inferior officer is beyond serious question regardless whether the scope of his authority is analyzed under the

Morrison

factors — which remain, as this Court has explained, binding authority which it is obligated to apply in this case — or under “the ‘direction and supervision’ test set forth in

[Edmond].”

Reply at 2;

see also id.

at 668, 117 S.Ct. 1573 (Souter, J. concurring) (opining that courts determining whether an officer is properly considered principal or inferior under the Appointments Clause should take “a detailed look at the powers and duties of [the officer] to see whether reasons favoring their inferior officer status within the constitutional scheme weigh more heavily than those to the contrary”). In striking this balance, the literal connotation of the language of the Comey letters is substantially tempered by an examination of the relationship between Fitzgerald and the Office of the Attorney General throughout the whole of the investigation and prosecution, including Comey’s transfer of his supervisory authority over the Special Counsel to Margolis in August 2005.

See

Def.’s Mem., Ex. B. That transfer, coupled with the Acting Attorney General’s continuing ability to remove the Special Counsel at will and to rescind or refashion the terms of his authority at any time, demonstrates that the Special Counsel was and is clearly a subordinate within the Department of Justice, even if he has not been closely supervised or directed on a day-to-day (or even week-to-week) basis in a manner that might cause his independence and impartiality, so necessary in an investigation of this type, to legitimately be questioned.

III. Conclusion

For the foregoing reasons, and for the reasons stated in its April 27, 2006 Memorandum Opinion and at the June 14, 2007 hearing, the Court concludes that the Appointments Clause issue raised by the defendant does not present “a substantial question of law or fact likely to result in ... reversal.” 18 U.S.C. § 3143 (b)(1). In addition, for the reasons expressed at the June 14, 2007 hearing as well as in its various other Memorandum Opinions addressing the other issues on which the defendant attends to appeal,

see Libby,

453 F.Supp.2d 35 (D.D.C. Sept.21, 2006) (addressing § 6(a) of the CIPA); 461 F.Supp.2d 3 (D.D.C. Nov.2, 2006) (addressing the admissibility of expert memory testimony); 467 F.Supp.2d 20 (D.D.C.2006) (addressing § 6(c) of the CIPA); 475 F.Supp.2d 73 (D.D.C. Mar.1, 2007) (addressing evidentiary rulings), the Court concludes that none of the defendant’s other claims are “close [questions] or one[s] that very well could have been decided the other way,”

Perholtz,

836 F.2d at 555 (in

*21

ternal quotation marks and footnote omitted), requiring the defendant’s release on bond pending the resolution of his appeal.

SO ORDERED this 21st day of June, 2007,

nunc pro tunc

to June 14, 2007.

. The facts of this case have been thoroughly related by the Court in previous opinions, and it is unnecessary to recite them again here.

See, e.g., United States v. Libby,

429 F.Supp.2d 27, 28-29 (D.D.C. Apr.27, 2006) (Appointments Clause issue); 432 F.Supp.2d 81, 82-84 (D.D.C. June 2, 2006) (defendant's third motion to compel); 461 F.Supp.2d 3, 4-5 (D.D.C. Nov.2, 2006) (admission of expert testimony); 475 F.Supp.2d 73, 75 (D.D.C. Mar.1, 2007) (evidentiary issues).

. The government notes in its opposition to the defendant's motion that it “does not contend that [the] defendant poses a risk of flight or danger to the community, or that [the] defendant’s appeal is frivolous[] or brought solely for purposes of delay.” Opp. at 2 n. 1. The Court agrees with this assessment.

.Contrary to the defendant’s suggestion, the Court can find no caselaw which suggests that a given question is “close” merely because there is no “precedent in this Circuit [which] clearly dictate[s] the answer.” Motion at 4.

.In

Quinn ,

the District Court concluded that the § 3143(b) substantiality test was satisfied "where a defendant challenges the Court's ruling on a novel question of law and provides a rationale for a contrary interpretation that is supported by arguably applicable legal authority."

Quinn,

416 F.Supp.2d at 136 ;

see also id.

(stating that "the Court cannot say that the question for appeal is insubstantial or not susceptible to a different answer”). The

Quinn

Court provides no support for its particular interpretation of the

Perholtz

standard, which appears to this Court to be somewhat less "demanding” than was contemplated in

Perholtz

itself.

Perholtz,

836 F.2d at 555 . Rather, the plain language of

Perholtz

seemingly

rejects

the proposition that a question is “substantial” for the purposes of § 3143(b) merely because the issue raised is novel and there is a contrary interpretation of the law that is "arguably applicable.”

Quinn,

416 F.Supp.2d at 136 ;

see Perholtz,

836 F.2d at 555 (holding that an issue is substantial if it "is a

question or one that

very well could have been

decided the other way”) (emphases added) (internal quotation marks and footnote omitted). Indeed, it is easy for this Court to imagine "novel” questions of law to which, after a careful examination of the issues presented therein, it is evident that there is nevertheless only one clear answer, even if the questions might possibly be "susceptible” to differing "arguably applicable” interpretations.

Quinn,

416 F.Supp.2d at 136 . Such questions would not, in this Court’s view, be considered "substantial” under

Perholtz .

. The

less

demanding of the two standards considered by the

Perholtz

Court provides that "a substantial question is one that is 'fairly debatable,’ 'fairly doubtful,’ or 'one of more substance than would be necessary to a finding that it was not frivolous.’ ”

Perholtz,

836 F.2d at 555 (footnote omitted). Only the Third and Ninth Circuits have adopted this standard.

See id.

at 555 n. 2 (citing cases).

. At both the June 5, 2007 sentencing hearing and the June 14, 2007 motion hearing, the defendant adverted to the length of this Court’s opinions on those issues the defendant plans to raise on appeal as an indication that he has presented one or more "substantial question[s] of law or fact” entitling him to release on bond until his appeal can be heard.

See

Motion at 5 (arguing that “the difficulty of the issues [is] evidenced by the Court’s own lengthy writings”);

see also id.

(noting that "[t]o answer [the Appointments Clause] question” (and a closely related statutory question), this Court wrote a 31-page opinion (20 pages in the Federal Supplement)) (citation omitted). It should be evident, of course, that the fact that this Court has taken the time to explore the issues before it in a careful and thorough manner is in no way reflective of the closeness of the questions presented. It is the habit of this Court — confirmed by a cursory examination of the collective corpus of its published opinions — to evaluate

every

legal issue, however close, to the fullest extent merited by, among other things, the novelty of the

question in this Circuit, the complexity of the facts, the import of the case, and the quality of each party’s legal representation. Indeed, each of the foregoing factors was abundantly present here. Accordingly, the Court’s desire to decide an issue completely and correctly to the best of its ability should not be taken as an indication that the issue is "one that could very well have been decided the other way.”

Perholtz,

836 F.2d at 555 (internal quotation marks and footnote omitted).

Similarly, the defendant quotes liberally from dicta within the Court’s opinions in an apparent attempt to prove to the Court that it believed the defendant’s proffered issues to be close at the time that it decided them.

See, e.g.,

Motion at 6 (citing the Court's statement that the parties had come to “differing conclusions” on the Appointments Clause issue and stating that "[t]he Court then engaged in its own interpretation ..., but indicated that the task was not particularly straightforward and that its own research did not 'reveal[] any case law that clearly addresses th[e] point' ”) (citations omitted), 12 (stating that "[t]he Court described the CIPA § 6(c) process as a ‘tedious and complex expedition’ through terrain 'largely uncharted by written precedent’ ”) (citations omitted). This "[T]al-mudic dissection[]” of the Court’s word choice and phrasing scissors the language of the Court out of its memorandum opinions in a manner that deprives it entirely of context,

see

Opp. at 33 (observing that “[the] Court's statements that it was 'not sure' whether to exclude a portion of the testimony or that it was 'a tough call' must be put in context”), and does not befit a considered and searching analysis of the defendant’s claims on their own merits, in accordance with the circumstances of the case and all relevant precedent, to determine whether a substantial question of law or fact has or has not been raised by the defendant.

Church of Scientology of Calif. v. IRS,

792 F.2d 153, 157 (D.C.Cir.1986).

. The Appointments Clause provides that:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

. The Court articulated its grounds for denying the defendant’s motion as to each of the other issues he plans to raise upon his appeal at the conclusion of the June 14, 2007 hearing. Here, the Court concludes that it is appropriate to fully memorialize its ruling as to the defendant's constitutional challenge to ensure that the Circuit Court has a clear record of this Court's conclusion and reasoning when considering the defendant’s appeal of the denial of his § 3143 motion. The remaining issues presented by the defendant need no further explanation.

. The defendant also argues, albeit in extremely perfunctory fashion, that the Court's conclusion that the Special Counsel's appointment comported with the relevant federal statute authorizing the Attorney General to delegate “any function” of his position to a

Department of Justice subordinate, 28 U.S.C. § 510 (2000), is similarly a substantial question of law or fact entitling the defendant to release pending his appeal. Motion at 5; Reply at 2 n. 2;

see Libby,

429 F.Supp.2d at 31-34 (examining statutory question). For the reasons articulated in its April 27, 2006 Memorandum Opinion,

see id.,

the Court is convinced that the defendant’s statutory argument does not "raise[] a substantial question of law or fact” under § 3143(b).

. As the Court notes in its April 27, 2006 Memorandum Opinion, then-Attorney General John Ashcroft "recused himself from all matters involving the [Píame] investigation” and designated Comey as Acting Attorney General with respect to the delegation of authority to Fitzgerald and to the investigation generally.

Libby,

429 F.Supp.2d at 28 .

. It is the Court’s understanding, undisputed by the defendant, that Fitzgerald did not relinquish any of his duties as United States Attorney upon accepting the appointment as Special Counsel, and that he has continued to serve in both capacities — and always as a Department of Justice employee — during the pendency of this investigation and throughout the prosecution of the defendant. See

Libby,

429 F.Supp.2d at 41 (stating that Fitzgerald "has continued to occupy [his] position [as United States Attorney] throughout his tenure as Special Counsel”).

. The letter further stated that the "conferral [upon Fitzgerald] of the title 'Special Counsel' in this matter should not be misunderstood to suggest that [his] position and authorities are defined and limited by 28 C.F.R. Part 600.” Def.'s Mem., Ex. D at 1. The defendant contends that this reference to 28 C.F.R. Part 600 is an indication that Fitzgerald is not bound by the policies and procedures of the Department of Justice in the course of his appointment as Special Counsel.

See

Motion at 4 (arguing that "[t]hose regulations give a special counsel a degree of independence appropriate where high-ranking executive officials are under investigation ... without wholly abdicating the Department’s supervisory obligation”); Reply at 4 (stating that "[t]hose regulations require all other Special Counsel to comply with Department policies and regulations”) (emphasis omitted). However, 28 C.F.R. Part 600 is specifically directed at individuals who, unlike Fitzgerald, are not already Department of Justice employees at the time of their appointment as Special Counsel. 28 C.F.R. § 600.3 (2007) (stating that "[t]he Special Counsel shall be selected from outside the United States [g]overnment”). Accordingly, these regulations were not, and could not be, applicable to the Special Counsel in this case, and his exemption from them cannot plausibly be construed as an implicit waiver of the obligation to follow Department of Justice polices and procedures that was imposed upon Fitzgerald in his capacity as United States Attorney.

. As the Court discusses below, this letter clearly, although not conclusively, indicates that the Special Counsel was, at the very least, subject to "some level” of supervisory authority throughout the course of his investigation by officials within the Department of Justice.

Edmond,

520 U.S. at 663 , 117 S.Ct. 1573 .

. As the

Morrison

Court explained, "the Constitution for purposes of appointment divides all its officers into two classes.... Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.”

Morrison,

487 U.S. at 670 , 108 S.Ct. 2597 (internal bracketing, quotation marks, citations, and ellipses omitted).

. In dissent, Justice Scalia disagreed with the

Morrison

majority’s elicitation of the relevant Appointments Clause factors.

Morison,

487 U.S. at 716-723 , 108 S.Ct. 2597 . Among other points of contention, Justice Scalia noted that the independent counsel is "removable only for 'good cause’ or for physical or mental capacity,” a factor which he concluded "lends no support to the view that [Morrison] is an inferior officer.”

Id.

at 716 , 108 S.Ct. 2597 (Scalia, J., dissenting) (citation omitted). The dissent stated, however, that "[i]f [the independent counsel] were removable

at will

by the Attorney General, then she would be subordinate to him

and thus properly designated as inferior." Id.

(emphases added);

see also id.

at 719, 108 S.Ct. 2597 (stating that "the independent counsel is not an inferior officer because she is not

subordinate

to any officer in the Executive Branch”) (emphasis in original). Later in his dissent, Justice Scalia appears to qualify his conclusive statement that an officer who is removable at will by somebody other than the President is “properly designated as inferior,”

id.

at 716 , 108 S.Ct. 2597 , explaining that "it is not a

sufficient

condition for ‘inferior officer' status that one be subordinate to a principal offi

cer[J ... [b]ut it is surely a

necessary

condition,”

id.

at 722 , 108 S.Ct. 2597 (emphases in original). The Court does not, and need not, attempt to reconcile this conceivably contradictory language.

. The Court also notes, contrary to the defendant’s suggestion, that the Supreme Court in

Monison

found that the independent counsel was only expressly obligated to comply with Department of Justice policies “to the extent possible.”

Morrison,

487 U.S. at 672 , 108 S.Ct. 2597 (citation omitted);

see

28 U.S.C. § 594 (f) (stating that ”[a]n independent counsel shall, except to the extent that to do so would be inconsistent with the purposes of this chapter, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws”);

see also

Opp. at 14 n. 11 (representing that "as a member of the Department [of Justice], the Special Counsel was obligated to follow [Department] policies to the extent possible”).

. In addition, the obligation of the independent counsel in

Morrison

to comply with Department of Justice rules and regulations was only one of the factors which, taken together, led the Supreme Court to conclude that her duties were limited and that she therefore “clearly [fell] on the ‘inferior officer’ side of the line.”

Morrison,

487 U.S. at 671 , 108 S.Ct. 2597 . That is, the

Morrison

Court found that the independent counsel was "empowered ... to perform only certain, limited duties” because (1) her role was "restricted primarily to investigation and ... prosecution for certain federal crimes”; (2) her “grant of authority [did] not include any authority to formulate policy for the Government or the Executive Branch”; (3) she had no “administrative duties outside of those necessary to operate her office;” and (4) her grant of authority “specifically provides that in policy matters [she] is to comply to the extent possible with the policies of the Department.”

Id.

at 671-72 , 108 S.Ct. 2597 (citations omitted). Thus, even if it were a close question whether Fitzgerald was exempted by the Comey letters from strict compliance with Department policies in his capacity as Special Counsel, which it is not, it does not inexorably follow that it is therefore a close question whether the Special Counsel is a constitutionally inferior officer, or even whether the Special Counsel’s duties, like those of the independent counsel in

Morrison ,

are circumscribed and limited. Indeed, it cannot seriously be disputed that all three of the other factors cited by the

Morrison

Court in support of its conclusion that the independent counsel possessed "only certain, limited duties” apply with equal force in this case as well.

Id.

at 671 , 108 S.Ct. 2597 ;

see Libby,

429 F.Supp.2d at 44 .

. In this regard, the Court observes that Fitzgerald’s submission of the § 6(a) affidavit on September 5, 2006, was a matter of public record which'was placed on the docket and transmitted electronically to the defendant at that time.

See

Petition for

In Camera

Hearing, D.E. # 134 (Sep. 5, 2006) (stating that "[t]he United States of America, by its attorney, Patrick J. Fitzgerald, Special Counsel, pursuant to Section 6(a) of CIPA, respectfully requests that this Court conduct an

in camera

hearing”).

. There are three relevant "functions and duties” under the CIPA that are identified as being the sole province of the Attorney General. 18 U.S.C. Appx. Ill § 14. First, the Attorney General is empowered to certify to the Court that a public proceeding under § 6 of the CIPA "may result in the disclosure of classified information.”

Id.

§ 6(a). If the Attorney General so certifies, the Court is required to conduct the § 6 proceedings

in camera. Id.

The Court is similarly required to hold

in camera

proceedings under § 6(c) of the CIPA "at the request of the Attorney General.”

Id.

§ 6(c)(1). Second, in connection with a § 6(c) motion, the government is entitled to "submit to the [C]ourt an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information.”

Id.

§ 6(c)(2). Finally, in the event that the Court denies the government's motion for a § 6(c) order directing the substitution or summary of specific identified classified material for use by the defendant, the government may "file[ ] with the Court an affidavit of the Attor

*13

ney General objecting to the disclosure of the classified information at issue.”

Id.

§ 6(e)(1). The Court is then obliged to “order that the defendant not disclose or cause the disclosure of such information.”

Id.

In the present case, the defendant represents, and the government does not dispute, that the Special Counsel submitted affidavits pursuant to the above provisions in §§ 6(a) and 6(c). However, because the Court did not deny the government's motion for a § 6(c) order, there was no occasion for the submission of an affidavit under § 6(e) of the CIPA by the Special Counsel or anyone else.

. At the June 14, 2007 hearing, the government argued that (1) the functions at issue here — specifically, the §§ 6(a) and 6(c) affidavits submitted by the Special Counsel during the CIPA proceedings — are purely

pro forma

and ministerial; and (2) accordingly, no harm was done even if the Special Counsel was precluded

de jure

from performing those actions under § 14. Because the Court concludes that

any

arguably improper exercise of CIPA authority in this instance would constitute, at worst, a violation of § 14 of the CIPA, and would not cast doubt upon the Special Counsel's status as an inferior officer under the Appointments Clause, it is unnecessary to decide whether submission of the §§ 6(a) and 6(c) affidavits would properly be classified as ministerial.

. The Deputy Attorney General, the Associate Attorney General, and the several Assistant Attorneys General are all appointed by the President and confirmed by the Senate. 28 U.S.C. §§ 504 (2000) (Deputy Attorney General), 504(a) (2000) (Associate Attorney General), 506 (2000) (Assistant Attorneys General). Although to the best of this Court's knowledge the constitutional status of these positions under the Appointments Clause has never been resolved (nor even addressed) by any court, the Court assumes, for the sake of the defendant’s argument, that they are all properly considered principal, rather than inferior, officers.

. The defendant does not contend that he was specifically prejudiced by the Special Counsel’s ostensibly improper submission of §§ 6(a) and 6(c) affidavits, nor does he argue that a violation of § 14 of the CIPA — as opposed to a violation of the Appointments Clause,

see

Reply at 5-6 — is an error that is "so fundamental and pervasive that [it] required] reversal without regard to the facts or circumstances of the particular case,”

Delaware v. Van Arsdall,

475 U.S. 673, 681 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) (citations omitted). Although the issue has not been briefed, it is this Court's strong belief that such a statutory violation would be subject to harmless error review only.

See id.

(stating that "[t]he harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error”) (citations omitted);