Before we get too carried away with glee (as did the New York Times) about Scooter Libby’s reported testimony that he was authorized by the president to leak classified information, let’s remember one non-trivial fact: the executive branch is the part of our government that has the authority to classify — or declassify — information. So, as we’ve talked about before, the whole Libby case should fail. For any number of reasons. Not the least of which, as Libby’s lawyers arued last week, Fitzgerald’s appointment, by which he was delegated all the powers of the Attorney General, is improper. And a violation of the Constitutional advice and consent provision. Can’t delegate the AG’s powers to someone who hasn’t gone through that wonderful Senate confirmation process.