In an article regarding the two U.S. Attorneys, Ronald C. Machen Jr. and Rod J. Rothstein, who have been appointed to run joint independent investigations into the leaking of classified information regarding drone strikes and cyber warfare to The New York Times, Jim Geraghty makes the following observation:
The Department of Justice describes the 93 U.S. Attorneys as “the nation’s principal litigators under the direction of the Attorney General.” Each one manages investigations and prosecutions in a given state or a portion of a state. Forty-seven of these attorneys have not donated any money to any candidates for office in the past six years, according to records available from the Center for Responsive Politics.
Collectively, the remaining 46 have donated $235,651 to President Obama, the DNC, and Democratic candidates since January 1, 2007. Not one has donated to any Republican candidate. Of the 46 who donated, 36 donated to President Obama’s presidential campaign in 2008, or his reelection campaign this year, or both, for a total of $77,782.
So, approximately 1/2 of the 93 U.S. Attorneys, all but 5 of whom were appointed by a Democratic President (the other 5 are holdover’s from the Bush Administration, have been politically active enough in the past six years to contribute to a campaign or political organization. In and of itself, this isn’t that much of a surprise if only because it’s because of political connections that most of these positions end up getting filled in the manner that they do. Nor is it surprising that these 46 would be contributing to Democrats given that they were being appointed by a Democratic President. Is it a problem? I’m not sure. One would prefer that the chief on-the-ground legal representatives of the Federal Government be apolitical, but this is the real world and in the real world it’s always been politics that gets you ahead in, well, politics.
The problem arises, some on the right are saying in the person of Robert Machen, Jr., one of the two attorneys appointed to investigate the leaks story, an investigation that will, of necessity, include investigating people with close ties to the President. Is there a conflict of interest in having someone who’s donated money to the candidate and his political party investigating members of that politician’s inner circle? As a matter of law and legal ethics, the answer is no but I can certainly see why there would be an appearance of impropriety here. Situations like this, of course, are one of the reasons why, ever since Watergate there have been attempts to create a mechanism for some kind of independent counsel that would be able to investigate the Executive Branch free of the obvious conflict of interest that develops when the Justice Department attempts to do so. Indeed, as the infamous Saturday Night Massacre showed, even an outside counsel appointed by the Attorney General isn’t necessarily independent enough if the President is determined to try to shut an investigation down. In 1978, Congress passed the Ethics In Government Act, which included a provision allowing for the appointment of an Independent Counsel that would be selected by a panel of Federal Judges when the need for such a counsel arises. The Supreme Court upheld the Constitutionality of the Independent Counsel in 1988, but the controversy that came to surround the office during the Clinton Era led to Congress agreeing to let that portion of the law lapse in 1999 rather than renewing it. Since then, we’ve been back in the world of Watergate Era “Special Prosecutors” such as Patrick Fitzgerald, who investigated the Valerie Plame matter.
Perhaps we need to return to something modeled on the Independent Counsel Act so that we avoid conflicts like this in the future. With respect to the leaks investigation it does help somewhat that a parallel investigation is being run by Rod Rothstein, who is a holdover from the Bush Administration, but we still have a situation where the Obama Administration is essentially investigating itself on the question of who may have leaked potentially classified material to The New York Times. At the very least that’s an appearance of impropriety.
