In a court filing, lawyers for I. Lewis "Scooter" Libby said his indictment violates the Constitution because Special Counsel Patrick Fitzgerald was not appointed by the president with the consent of the Senate.
The defense attorneys also said Fitzgerald's appointment violates federal law because his investigation was not supervised by the attorney general. They said only Congress can approve such an arrangement.
"Those constitutional and statutory provisions have been violated in this case," Libby's lawyers wrote.
Furthermore, the filing warns that because Fitzgerald acts "without any direction or supervision," he "alone" decides where U.S. interests lie in an investigation involving "national security, the First Amendment, and important political questions."
Fitzgerald was appointed in December 2003 after former Attorney General John Ashcroft recused himself from the investigation because of his close relationships with White House officials. Then-Deputy Attorney General James Comey, acting in Ashcroft's place in the matter, selected Fitzgerald.
Comey gave Fitzgerald sweeping power to conduct the investigation into the leak of CIA operative Valerie Plame's identity, exempting the special counsel from following rules that apply to all U.S. attorneys throughout the nation.
Unlike every other federal prosecutor, Fitzgerald did not have to seek approval from senior Justice Department officials to grant immunity or subpoena reporters and news organizations. Nor did he have to advise senior Justice officials before he sought Libby's indictment.
"The attorney general may delegate powers but he may not abdicate responsibility," Libby's lawyers wrote.