[JURIST] Defense lawyers for I. Lewis "Scooter" Libby [defense profile], former chief of staff for Vice President Cheney, have asked a federal judge to dismiss the case against him, arguing that Special Prosecutor Patrick Fitzgerald [official website] was improperly appointed to head the investigation in the CIA leak case [JURIST news archive]. In the motion to dismiss [PDF text] the indictment [PDF text], Libby's lawyers argue:

Under the Appointments Clause of the Constitution, no person may assume the power of a principal officer of the United States unless he or she has been appointed to that office by the President with the advice and consent of the Senate. U.S. Const. art. II, §2. Further, 28 U.S.C. §§516 and 519 provide that no federal officer may represent the United States in litigation without the Attorney General's direction and supervision unless the Congress has expressly authorized it. Those constitutional and statutory provisions have been violated in this case.

Libby has pleaded not guilty [JURIST report] to charges [JURIST report] of obstruction of justice, making a false statement and perjury in connection with the investigation into the leak of former CIA operative Valerie Plame's identity. Analysts have expressed skepticism at Libby's motion to dismiss, noting that Fitzgerald was the US Attorney for the Northern District of Illinois, a position which required nomination by President Bush and confirmation by Congress, when he was named special counsel in the leak investigation. The Los Angeles Times has more.