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.