Reply #10: Fitz's appointment not "contrary to statute." Fitz was appointed per

[Garbo 2004]

US Code (law), not per Part 600 of the DOJ's regulations. (And fed regulations, which you've cited, are not statutes. Federal regs are drafted and adopted by fed agencies. They are not laws passed by Congress. And in this case statute takes precedence over the regulation you've cited.)

An excerpt from the GAO's General Counsel's 2004 letter to Congress on funding the investigation from a special permanent appropriation clarifies that the AG or Acting AG was not limited by Part 600 in the appointment of Fitzgerald, who was appointed pursuant to statute:

Acting Attorney General Comey appointed Special Counsel Fitzgerald under 28 U.S.C. 509, 510 and 515. <16> The Department has relied upon such authority in the past to appoint regulatory independent counsel from outside the government.. In 1994, the Department first determined that it was authorized to finance the activity of a regulatory independent counsel who was appointed from outside the government pursuant to such authority from the permanent indefinite appropriation. We agree with the Department that the same statutory authorities that authorize the Attorney General (or Acting Attorney General) to delegate authority to a U.S. Attorney to investigate and prosecute high ranking government officials are "other law" for the purposes of authorizing the Department to finance the investigation and prosecution from the permanent indefinite appropriation. It should be noted that we have not objected to the use of the permanent indefinite appropriation to fund the expenses of regulatory independent counsels appointed from outside the government pursuant to such authority. <17>

The remaining issue is whether Part 600 can be waived by the Attorney General or acting Attorney General. We examined Part 600 and found it was issued in 1999 to replace the procedures of the expired Independent Counsel Reauthorization Act of 1994. In our view, Part 600 is not a substantive (legal) limitation on the authority of the Acting Attorney General to delegate departmental functions to Special Counsel Fitzgerald. First, 28 C.F.R. 600.10 states that the regulations are "not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative." Further, in the supplemental information accompanying the issuance of Part 600, the Department explained that the effective date of the rule did not have to be delayed 30 days after publication because it was not a substantive rule, citing 5 U.S.C. 553(d), 552(a)(1)(D). 64 Fed. Reg. 37038, at 37041 (July 9, 1999).

Finally, the only statute cited as authority for 28 C.F.R. Part 600 that expressly authorizes the Department to issue regulations is 5 U.S.C. 301 (2000). It provides that the head of executive agencies may "prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers and property" The power conferred by 5 U.S.C. 301 is administrative and not
legislative. Chrysler Corp. v. Brown , 441 U.S. 281, 309 (1979); United States v. George , 228 U.S. 14, 21-22 (1914). It follows that such regulations governing internal procedures issued under this statute do not have the force and effect of law. See Einhorn v. DeWitt , 618 F. 2d 347 (5th Cir. 1980) (IRS procedural rules issued under 5 U.S.C. 301 governing the internal affairs of the IRS do not have force and effect of law). Thus, 28 C.F.R Part 600 does not act as a substantive limitation on the Attorney General's (or Acting Attorney General's) authority to delegate authority to a U.S. Attorney to serve as a Special Counsel to investigate high ranking government officials and it may be waived. See 60 Comp. Gen. 208, 210 (1981) (an agency could waive its internal guidelines prescribing the specific evidence required to demonstrate a grantee's financial responsibility when the agency was otherwise satisfied that the government's interests were adequately protected). The Department was not limited by 28 C.F.R. Part 600 when it exercised its authority under 28 U.S.C. 508, 509, 510 and 515 and appointed Special Counsel Fitzgerald from within the Department to investigate the alleged unauthorized leak of a CIA employee' identity.

Complete document and footnotes at http://www.gao.gov/decisions/appro/302582.htm#_ftn16