Just Say No To Special Prosecutors
Republicans should reject the calls to call for a Special Prosecutor to investigate the unfolding scandals in Washington.
As the attention of Washington, D.C. and the pundit class remains focused on the various “scandals” floating around the Obama Administration, we’re starting to hear for calls from some corners for the appointment of a Special Prosecutor to investigate the scandals, the Obama Administration’s involvement in the same, and the question of what, if any, laws may have been broken. It’s a familiar call in Washington that stretches back to the Watergate Era, when the Justice Department appointed Archibald Cox to investigate the unfolding scandal. When Cox was fired, under President Nixon’s orders in the legendary Saturday Night Massacre and replaced with Leon Jaworski, it was the beginning of the end for the Nixon Administration, and the start of a new era where advocates of government ethics called for creation of a position independent of the Attorney General to investigation wrongdoing in the Executive Branch. That effort paid off in 1978 with the passage of the Ethics In Government Act, a law that among other things established an Office of Independent Counsel that continued in existence until 1999 when Congress failed to renew that portion of the law. During the time that the Independent Counsel was active, we saw the office utilized a total of fourteen times. The first time was during the final year of the Carter Administratoin when an Independent Counsel was appointed to investigate charges that Presidential Aide Hamilton Jordon had used cocaine on multiple occasions in and around Washington, D.C. There were several appointed during the Reagan, Bush 41, and Clinton Administrations, but the most famous, or infamous depending on your point of view, were clearly Laurence Walsh, who was appointed to investigate the Iran/Contra affair, and Ken Starr, who was appointed to investigate several allegations against Bill and Hillary Clinton, and whose investigation ultimately ended with President Clinton becoming only the second President to be impeached. How you felt about these investigations often depended upon which side of the political aisle you were on and who was being investigated. There were several observers, though, who expressed concern about the idea of a prosecutor with a virtually unlimited mandate and an effectively unlimited budget who was completely outside the control of the Executive Branch, which is charged with enforcing the nation’s laws. Those concerns were voiced quite strongly by Justice Antonin Scalia in his dissent in Morrison v. Olson 487 U.S. 654 (1988), a decision in which the Supreme Court upheld the Constitutional of the Ethics in Government Act. In his dissent, though, Scalia had this to say:
Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable [487 U.S. 654, 729] sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors “pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted,” if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, “[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility.” Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas “one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility.” Id., at 427.
That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are “no reasonable grounds to believe” that further investigation is warranted, a process is set in motion that is not in the full control of persons “dependent on the people,” and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a [487 U.S. 654, 730] panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him”? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad – and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was “reasonable basis to believe” that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same [487 U.S. 654, 731] independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result – the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration – there would be no one accountable to the public to whom the blame could be assigned.
I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution – a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.
The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations:
“The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel – specifically, her isolation from the Executive Branch and the internal checks and balances it supplies – is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests.” Brief for Edward
H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11.
It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile – with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.
Indeed, some would say that the dangers that Scalia notes in his dissent would come to exist in less than a decade when the Independent Counsel under Kenneth Starr took on an increasingly expanding investigatory mandate to the point where the one thing that his investigation is, in the end, most remembered for is something that was entirely unrelated to any of the controversies that he was appointed to investigate. Along the way, following in the footsteps of other Independent Counsel’s before him, he utilized tactics that often intimidated witnesses and went beyond what prosecutors in normal cases would do. The ability of Independent Counsel’s to do a lot of damage during their investigations is well document, and summed up in the question posed by former Reagan Administration Labor Secretary Raymond Donovan after he was acquitted of charges brought by an Independent Counsel, “Where do I go to get my reputation back?” These concerns are one of the reasons Members of Congress have mixed feelings about the idea of calling for a Special Prosecutor to investigate the current scandals, and why some Republicans are expressing doubts about the whole idea. Over at National Review, meanwhile, Andrew McCarthy makes quite a forceful argument against the entire idea of appointing a Special Prosecutor:
Let’s put law and atmospherics aside and try to be completely practical. The imperative in the IRS scandal is not criminal prosecution. It is political accountability: to lay bare what corrupt officials have done, for the purpose of swiftly determining whether they are unfit to hold offices of public trust and whether the system in which they operate tends to corruption. The appointment of a special counsel would undermine that goal.
The moment a prosecutor — special or otherwise — takes over, the public flow of information stops. All witnesses will claim that the pendency of a criminal investigation means they cannot discuss the matter “on advice of counsel.” They will cease cooperating with congressional investigators. The prosecutor will claim that grand-jury secrecy rules bar comment about the expansive investigation (a claim the government routinely makes, even though the rules actually bar comment only by the prosecutor, investigative agents, and grand jurors — not the witnesses).
Public disclosure should be the goal here. It is the one thing that has driven the IRS story to this point. Public disclosure of the shockingly intrusive harassment of the president’s political opponents, the prohibitive legal and regulatory expenses imposed on ordinary people for merely exercising their right to participate in the political process, is what has broken through the administration’s Obamedia fortress. Yet public disclosure is precisely what would be lost if Congress were to punt its oversight responsibilities to a special counsel.
Investigative secrecy is the prosecutor’s stock in trade, for good reasons. It is how you build an airtight case. When the most important thing at stake is bringing lawbreakers to justice, it is a shroud of secrecy worth having. In the IRS scandal, however, criminal liability is a decidedly secondary concern. The shroud of secrecy would enable the press to kill the story, and right now it’s the story that matters.
There will be plenty of time later to prosecute wrongdoers. The statute of limitations on most federal crimes is five years. At the moment, what’s called for is a public reckoning for the IRS: an investigation designed to shine the light of day on what actually happened, who was involved (whether or not they are criminally culpable as opposed to just sleazy), who should be pressured to resign — or should be removed — from public office, and how government revenue collection should be restructured to ensure it cannot be used as a partisan weapon. That kind of investigation would demand the media’s continuing attention. It can be done only by Congress — and would be best done, as would the Benghazi investigation, by a select committee that issues subpoenas and holds public hearings.
It’s worth noting, as McCarthy points out that any Special Prosecutor appointed in these matters would not be like the Independent Counsels that existed from 1978 through 1999. As I noted, the Office of Independent Counsel died in 1999 when Congress failed to renew those portions of the law that had created it, and by that point there seemed to be a bipartisan consensus that the institution had become far too powerful and far too out of control. Since then, any investigations that went outside the normal Justice Department procedures were handled by counsel appointed by the Attorney General in a manner similar to the Watergate Special Prosecutor. For example, Patrick Fitzgerald, who was then serving as U.S. Attorney in Chicago, was appointed to investigate the Valerie Plame affair and the leaking for her identity as a covert CIA agent, something that was potentially a violation of the law. Fitzgerald, however, was not “independent” in the sense that Ken Starr or Laurence Walsh were and, potentially, was always subject to recall by the Acting Attorney General who had appointed him (John Ashcroft had recused himself from the matter at an early date.) There have been similar uses of a “Special Prosecutor” since then, including right now in the Justice Department’s investigations of various leaks of classified material to the press. One can argue, perhaps, that the danger exists for another “Saturday Night Massacre” if one of these appointees gets too close for comfort in an investigation, but the political consequences of such an act would likely be quite severe. Nixon suffered greatly or his actions that day, and Robert Bork found himself criticized for the fact that he was ultimately the acting Attorney General who fired Archibald Cox despite the fact that no less a person than Elliot Richardson, who quit when Nixon gave him the order to fire Cox, said that Bork did the right thing by preserving the leadership at the Justice Department. The odds that a future President would survive trying to fire a Special Prosecutor investigating his Administration
McCarthy’s broader point has merit too. Right now, we’re at the point where it is more appropriate for these stories to be investigated rather than for criminal prosecutions to go forward. Congress has a responsibility to conduct appropriate oversight of both the IRS and the Justice Department (vis a vis the whole leak investigations targeting the press issue), and appointing a Special Prosecutor would effectively shut all that down as witnesses scramble to “lawyer up” and, of course, clam up. Of course, Congress could still conduct its investigations by offering witnesses testimonial immunity. As we learned in the Oliver North case, though, that’s a move that has the potential to derail any future criminal prosecution. North was convicted at trial, but his convictions were ultimately overturned because the Independent Counsel could not sufficiently establish that the evidence it used against him was not influenced by or derived from the immunized testimony he gave to Congress in the summer of 1987 (indeed, North was represented in part by the ACLU in his appeal.) If the goal is to get the facts out quickly, then appointing a Special Prosecutor is guaranteed to impede that effort.
You’re citing a Scalia opinion that goes back to 1988, a year when a Republican was POTUS?
He might decide differently under the current circumstances, y’know.
@Surreal American:
Read the dissent, I don’t think he would. This was a pure separation of powers issue for him and since he was on the losing end of an 8-1 decision, it’s not a dissent he had to write. He clearly felt strongly about this issue and, in the end, I think he was right.
I dismiss the concerns of the RW media against SP on the IRS scandal as self-interest. How would having a special prosecutor affect Issa’s ability to demagogue the IRS scandal? Negatively, I reckon.
The IRS is the only one where I think a SP might be wise. It’s the 501 corporate money-laundering machine. The politicians and the press (who collect it in the end) are interested party’s.
@Doug Mataconis: It’s cute how you think Scalia would be consistent and not simply find a way to justify rank partisanship.
@Facebones:
It’s sad how you reject a perfectly valid argument against unrestrained prosectution authority because of your partisan biases.
Scalia’s dissent turns out to have been dead on.
Not only that, especially in light of the ultra-partisanship of he day, Obama would be ill-advised to consent to a Special Prosecutor. Can you imagine how wide Republicans would want the net to be cast? After what Bill Clinton was put through I have a hard time believing that any Democratic president (for the next 50 years or so) should even consider appointing a Special Prosecutor.
Yeah, I recall all the howls of outrage and protests when Patrick Fitzgerald took on the Plame case. Why can’t we just let Holder investigate himself?
I’m no fan of Scalia, but that does not mean that he is never right, or that his motives are suspect each time he renders an opinion.
@Jenos Idanian:
We know one thing with certainty – Eric Holder investigating himself would be a far more honest undertaking than Darrell Issa investigating ANYTHING.
@al-Ameda: As I recall it, Fitzpatrick’s investigation determined very quickly 1) who the leaker was, and 2) no crime was committed. Nonetheless, he kept digging and digging until he got Libby.
I fully expect those who continue to crow over Libby and harp on Plamegate will be supportive if this investigation follows a similar path…
@Jenos Idanian: As I recall it, Fitzpatrick’s investigation determined very quickly 1) who the leaker was, and 2) no crime was committed
. Nonetheless, he kept digging and digging until he got Libby.other than Libby’s lying to cover up the leak.Do you even try to be accurate? Or are you just satisfied with rank stupidity?
@OzarkHillbilly: We’ve heard a lot of lies covering up the IRS, Benghazi, Fast & Furious, and other scandals so far, so the parallel continues just fine…
I’m so excited at the prospect of a Summer of Ken Starr. Republicanists are bound and determined to find something, anything, on Obama. And they will spend as much of the taxpayers money as necessary to do it. Of course the same Republicanists have no problem with one of their own outing a covert operative. It’s team sports to these fool.
Governing? Who needs to govern? It’s all about political points to today’s GOP. Just check out the comments of Jenos…the face of todays Republicanist cult member.
Whitewater, Vince Foster…who knows what make believe scandals they will be able to make up given unlimited resources and time that the silly people with tea bags dangling from their tri-corn hats will devote to it.
What a f’ing idiot…if it was covered up how did you hear any lies?
Especially in your mommies basement where you live?
Oooooh…IRS, Benghazi, Fast & Furious…ooooh.
Jenos the meme machine.
Wind him/her up and he/she can copy and paste that list as many times as it takes.
@Sam Malone: Here’s a little news flash you might have missed Mayday: There’s some pretty hefty evidence that Eric Holder has already committed perjury.
But I already know your answer — he only lied to Republicans, so that doesn’t really count, right?
@al-Ameda: I hate to admit it, because it’s Scalia, but you are absolutely correct. Mr. Scalia saw the Ken Starr debacle coming and tried his best to prevent it. Dissents are almost always more interesting to read than majority opinions, and this is no exception.
Great post Doug.
Jenos…
If there is evidence of perjury, as you claim, then go ahead and put him in jail.
If there isn’t…then keep making wild claims in your conspiracy theory blog comments.
End of story.
Now go eat your cheetos…but don’t get any on your onesy.
Jenos…
Are you as dumb as your comments make you look?
Holder:
Michelle Malkin’s far right wing-nut site currently being run by certified nut-job Ed Morrisey:
Do you understand the difference between prosecution and a search warrant?
Can you grasp the difference?
Or are you just f’ing stupid???
Doug – FYI – you have an incomplete sentence at the end of the second-to-last paragraph.
Otherwise, good post.
So Jenos…
Already today, on this post alone, you have lied about the outcome of Fitzgerald’s Investigation re: Scooter Libby…and about evidence of Holder committing perjury.
Do you have any opinions that are not based on lies, mis-information, and factual error?
Do you think this may point to a major flaw in your charachter?
Do you think perhaps you should re-assess your membership in a cult that requires you to lie in order to support it’s postions?
FYI…right now you are running about one lie per hour…on this post alone.
Pretty good pace…
This is a total word construction failure. A Republican is already a member of a political entity or movement. Adding “-ist” comes off as a poor attempt at implying that an already politically or ideaologically motivated person is politically or idealogically motivated.
I suggest retiring it immediately. Using it only serves to signal that one’s arguments are to be discounted before being read.
@Sam Malone: Oh, Sammy… when was the last time you posted a comment that wasn’t pointless ad hominem?
Apparently Holder only found out that he signed off on the AP warrants when he read about it in the papers. That’s totally plausible for this administration…
Jenos…
An Ad Hominem attack is a personal attack, rather than an attack against your argument.
Calling you a liar is, in fact, an attack against your argument…in other words…your argument is based on a lie.
Also, trying to change the subject does not change the fact that you lied about evidence of Holder commiting perjury, or about Scooter Libby.
I thought I was clear about this when I asked;
Seriously…if you can’t even get the use of Ad Hominem correct…why even try anymore?
You are only showing your rank ignorance.
Agree with Doug and Scalia!
Watch out for blue moons and flying pigs ….
Grommitt…
Thank you for your input.
However, in my opinion, you are mistaken.
The Urban Dictionary defines Republicanist as:
Certainly an apt definition…but it lacks the rigor that I demand.
You are correct that Republicans…think Eisenhower Republicans…are ideologically motivated.
My position, and it is not original by any means, is that Republicans today have moved beyond ideology…they are operating as a religious movement…not what we would consider a political party.
Sullivan on today’s GOP:
So today’s Republican Party has what can only be described in religious terms as a fundamentalist mindset…hence; Republicanist.
But thank you for your interest.
@Sam Malone: While I would prefer that the “Team Blue” folks that post here make higher quality comments than Jay Tea Jones, if you want to insist on undermining the validity of your own arguments by looking like an idiot, Cliffy, I certainly won’t stop you.
Blah, blah, blah. When it’s all said and done we are left with “who watches the watchers” when they can’t be trusted?
@Sam Malone: Oh, Cliffy, you’re such a crapweasel. If it isn’t bad enough that you’re citing the Urban Dictionary as an authoritative source, you’re whitewashing that far more political terrorism in the last, say, 50 years was from the Left, not the right — including quite a few very recent incidents.
But back to the topic at hand… Scooter Libby’s conviction was for lying about telling the truth abouta liar; he wasn’t involved in Armitage’s outing of Libby, which wasn’t a crime at all. And Holder… long-standing Justice Department protocol says the AG signs off on all such warrants as the AP case. So he either broke the rules, or lied about it under oath. We’ll have to see what the actual paperwork shows, once the investigation continues.
And you’re still a total crapweasel.
Jenos…You, like most liars, are expanding your lie…to cover your lying.
1). You said:
Libby was found guilty of obstruction. That is in fact a crime that was commited according to a jury…and it is reasonable to infer that it prevented the investigation from reaching the truth. Fitzgerald himself said a cloud hangs over the VP’s office.
Ipso facto…you lied.
2). Holder did apparently sign off on a warrant…which is not in any way the same as prosecution for anything.
Ipso facto you lied.
3). I did quote the Urban Dictionary…but I also said it was not rigorous. Evidently…based on your comment…you do not understand what that means.
FOAD you ignoramous.
@ Grommitt…
I presented a reasoned defense supported by a Conservative’s description of his own party.
Your response was that I’m an idiot.
It’s you that sounds like Jay Tea to me.
@Sam Malone: I absolutely did not say you were an idiot. I said that can word choice undermine the credibility of your arguments and that poor word choices can make you look like an idiot. Those are two very different statements.
Ugh. I hate it when I catch an error right as I am hitting Post.
“I said that word choice can undermine…”
Grommitt…Yes…that is what you said…I apologize.
If you read my comment you realize I choose the word for very specific reasons.
If you don’t agree with my reasoning…well…you don’t agree.
@Jenos Idanian:
We’ve heard a lot of
lies covering upspeculation concerning the IRS, Benghazi, Fast & Furious, and otherscandalsevents that Republicans have reflexively and falsely deemed as conspiracie, so the parallelcontinues just fine…to the Scooter Libby/Plame incident and investigation has no basis whatsoever.