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Debate Club
DEBATE CLUB 12/5/05

What Good Are Special Counsels?

David B. Rivkin and Lee A. Casey debate Katy Harriger.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

To investigate high-profile cases in which federal crimes have allegedly been committed, special prosecutors are appointed in a process designed to keep them free of political influence. Still, these counsels have earned the ire of nearly ever administration since Richard Nixon fired Archibald Cox in 1973. Though the title and rules have changed over time, critics argue that the position has consistently invited abuses of power and sometimes led to little more than smear campaigns that ruined lives. Should we end the use of special counsels?

David B. Rivkin and Lee A. Casey are partners in the Washington D.C. office of Baker & Hostetler. Katy Harriger is Professor of Political Science at Wake Forest University.

Rivkin & Casey: 12/5/05, 09:13 AM
Special Counsel Patrick Fitzgerald's indictment of Scooter Libby should be the final proof that the system of "special prosecutors" or "independent counsels" is bankrupt, and should be abandoned. Fitzgerald, a highly-respected federal prosecutor from Chicago, was originally tasked to investigate whether Bush Administration officials had violated the Intelligence Identities Protection Act by "leaking" the identity of CIA employee Valerie Plame. It is clear that, at least by sometime in January 2004—and probably much earlier—Mr. Fitzgerald knew this law had not been violated. Ms. Plame was not a "covert" agent, but a bureaucrat working at CIA Headquarters. However, instead of closing the case, as would have been done by any normal prosecutor, including himself while wearing the Chicago D.A. hat, Fitzgerald sought an expansion of his mandate, and has charged Libby with offenses that grew entirely out of the investigation itself. In other words, there was no crime when the investigation started, only, allegedly, after it finished. Unfortunately, for Special Counsels, as under the code of the Samurai, once the sword is drawn it must taste blood.

The age of special prosecutors, of course, began with Watergate. Since that time, a series of "independent counsels" and "special counsels" have left behind them a trail of ruined lives, but very few well-founded convictions for serious federal crimes. Republicans were thoroughly disillusioned with the system by the close of Ronald Reagan's second term, and many Democrats came to agree by the time President Clinton left office, largely as a result of the multi-year investigations by Ken Starr. The Independent Counsel statute was not renewed, and is no longer effective. However, the Attorney General may still appoint Special Counsels as an administrative act, and this is how Mr. Fitzgerald took office.

The reasons for the inherent problems with special/independent counsels were ably articulated many years ago, by Justice Robert Jackson, then serving as Franklin Roosevelt's Attorney General. Speaking of the prosecutor's power, Jackson noted the great danger that a prosecutor would choose whom to prosecute:

Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.

By definition, this is what a Special Counsel does. By being tasked to investigate one individual, or a small group, the prosecutor is deprived of normal constraints like resource limitations and the perspective of having to choose from a wide range of cases to pursue. Another vital missing ingredient is supervision. Normal federal prosecutors have political superiors who review their decisions. This is supposed to be the case even with Special Counsels. Contrary to what many post-Watergate reformers came to believe, political involvement, if exercised responsibly and in an accountable manner, is a vital check against prosecutorial overreaching. Unfortunately, for reasons not entirely clear—but which may have involved some buck passing by Justice Department officials—Mr. Fitzgerald was specifically excused from even these minimal checks on his power and, as a consequence, accountable only to himself.

To emphasize, the problem is not with Mr. Fitzgerald, or Mr. Starr, who are people of stature and honor, as well as superb lawyers, or with any of the other numerous independent or special counsels who have been appointed over the last 30 years. The unique genius of the American Framers was to recognize that properly constructed governmental institutions would work well despite the inherent frailties of the individuals who populated them; by contrast, fundamentally flawed institutions could not be salvaged even through the appointment of sagacious persons. There is no doubt that having senior government officials investigated through ordinary DOJ channels may, in some rare circumstances, lead to a preferential treatment. However, the establishment of the institution of independent/special prosecutors is a perfect example of a cure that is worse than the disease. It fosters a draconian justice system, where people in public service are treated far harsher than any similarly situated person in the private sector, ruins numerous lives, and warps the law. (This post draws heavily on the article the two of us have published in the Washington Post on October 29, 2005.)

Harriger: 12/5/05, 01:02 PM
There is much to respond to in your first post since it takes on many of the issues in this debate. I thought I might begin the discussion from my end by laying out my general position on the use of special prosecutors without necessarily taking on each of your points. I hope as the week progresses we'll get into more of the nitty-gritty of each of the arguments.

My first point is that I am not an unabashed supporter of all manifestations of the independent counsel. But I do think that critics of the arrangement tend to grossly exaggerate the dangers of special prosecutors while ignoring the reasons that we have them. In the research I have done on the actual uses of special prosecutors throughout the 20th century, I concluded that there were problems with the statutory independent counsel that was created post-Watergate but that expired in 1999. I thought the statute was too easily triggered in minor cases and covered far too many people in the executive branch, for many of whom the problem of conflict of interest when the Department of Justice investigated them was minor at best. I also thought there were real problems with the appointment coming from a panel of judges—not because judges should not do this constitutionally (as some argued) but because it freed presidents and their minions to attack the prosecutor as biased, partisan, "out of control" and the like with little consequence. Had they been responsible for that appointment, it would have been harder to do this. The appointment process also led in later years to a preference by the judicial panel for people who did not have prosecutorial experience. Given the problems with the statute, I shed no tears at its demise in 1999.

Having said that, critics of the arrangement have tended to exaggerate the negatives of independent prosecution and ignored the realities of how it worked in practice. It's simply not true that there were (and are) no constraints on the decision making of special prosecutors—regardless of whether they were appointed by a panel of judges or by the executive branch. The most significant constraint, of course, is that judges oversee their work in any number of ways. There is no room here for the countless examples of this that I documented in my work. But in the most recent case involving Special Counsel Fitzgerald we can see it clearly in the fact that two levels of federal courts reviewed his reasons for seeking testimony from the various reporters he subpoenaed and found it sufficiently compelling to override any presumption of reporter privilege. Further, a decision to indict may be easy to get by a grand jury, but all good prosecutors know that this is only the first stage and that ultimately their case will be reviewed by a jury and by judges. This is surely a disincentive to indict simply to indict and justify your existence. Finally, it is not true that indictments are inevitable in special prosecutor cases. Even in cases where some indictments come down, others have been rejected. But in a number of cases pursued by both special counsels and independent counsels the conclusion of the investigation was that no indictments were warranted. Almost half of the cases that involved independent counsel appointments under the statute between 1978 and 1999 involved no indictments whatsoever.

In later posts, I'd like to pursue why it is we resort to special prosecutors. I see them as symptoms of larger problems in American politics rather than the causes of those problems. But for now, I'll sign off and await your response.

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Rivkin & Casey: 12/6/05, 09:19 AM
Your excellent post makes the best possible case for the special prosecutors, both by arguing that they should be used only in a narrow range of circumstances—e.g., too many covered officials—and suggesting that they are not as "unconstrained" as some critics have suggested. Unfortunately, we believe that both of these arguments do not fully remedy the problem. The real reason for our discontent lies in our firm belief that the only appropriate oversight of the prosecutorial functions, which are, after all, one of the government's most awesome responsibilities is within the politically accountable context of the normal Executive Branch procedures. Unlike many post-Watergate reformers, we believe that politics is not a dirty word and the notion that politics and governmental power ought to be separated is both silly and extra-constitutional. The Framers certainly believed that politics would and should permeate the activities of both of the political branches; all that was required for the good governance to obtain would be to foster accountability within the context of the clearly understood rules of the game.

These broad principals, as applied to the prosecutorial function, mean that all major investigative and charging decisions, whether involving private persons or sitting government officials, should be ultimately made, and be perceived as made, by the senior Administration politically-accountable officials. Herein, we believe, lies both the checks for overcharging somebody or going easy on the potential target. For example, in the case of Scooter Libby, had the matter been handled by the DOJ career prosecutors, they would have likely concluded relatively early in the process that, whatever one thinks about the policy merits of the administration's attacks on Joe Wilson, no plausible case could be made that either the 1982 IIPA or the 1917 Espionage Act were violated. Because this conclusion would have been reached based upon the objective facts—i.e., Valerie Plame's "non-covert" status at the CIA—nothing could be gained by any other further investigation of any of the White House officials. While this decision would have been made initially by the career officials, it would have been reviewed by the senior political appointees within DOJ, up to and including the Attorney General. There is no doubt that Attorney General Ashcroft would have been criticized for such a decision, but, frankly speaking, such criticisms are an inevitable part of modern political life.

Instead, what we have is a perverse system, which literally encourages all of the senior political officials to duck their responsibilities. Ashcroft delegated this matter to Comey, who, in turn, delegated it to Fitzgerald. Moreover, while the special counsel regulation specifically allow for a substantial degree of political control, Comey chose to divest himself of all further responsibility in the Valerie Plame matter, in effect making Fitzgerald a quasi-independent counsel. (Indeed, one can argue that Fitzgerald was more independent than any independent counsel, because he is responsible to neither the Special Division nor to DOJ.) Meanwhile, Fitzgerald, having received his charge from Comey, was, as is the case with all special and independent counsels, under considerable pressure to conduct the most thorough and probing investigation, literally leaving no stone unturned. Unlike the case with a regular prosecutor, for Fitzgerald to end his prosecution early would have subjected both him and the person who appointed him, Comey, to vigorous attacks in the media. After all, if the matter of Messrs. Libby, Rove, et al's liability was so easy to dispose, why did Comey feel compelled to appoint a special counsel? Herein lies a perfect example of how the special counsel system has warped the behavior of a number of the perfectly honorable and decent public servants.

Significantly, even if one assumes, as you do that the Special Division judges have exercised meaningful supervisory power over independent counsels—and we do not believe this to be the case—the very nature of the federal judiciary makes them politically unaccountable; thus, whatever oversight they provide is not particularly useful. This is even more emphatically the case with the judicial review of Fitzgerald's decision to subpoena various reporters. To emphasize, both the district court and the D.C. Circuit neither did, nor constitutionally could, review the policy wisdom of Fitzgerald's decisions. All they did was to review their legality.

By the way, it is in this area, the one of policy and precedent, that independent and special counsels have done a great deal of damage. In the course of Valerie Plame investigation, Fitzgerald has virtually destroyed the admittedly not absolute, but still substantial reporters' privilege. This privilege under girds the press' ability to expose government corruption and malfeasance in the extreme circumstances and to inform on the ongoing basis the citizenry about the key decisions that affect their life. There is no doubt that, following Fitzgerald's handling of Judith Miller and Matt Cooper, more and more prosecutors will seek to "squeeze" reporters, in cases large or small, national or local.

Harriger: 12/6/05, 12:59 PM
Again, you've given me many good arguments to chew on. And again, I think we don't disagree at some abstract, macro level but that we do disagree on how we should interpret what actually happens. Our biggest problem right now may be what I think is your tendency to conflate statutory independent counsels with special counsels appointed by the Justice Department and the tendency to attribute to special prosecutors unique behaviors that I think are not unique and are more attributable to the general nature of prosecutorial power and white collar defense.

First, I do agree with your theoretical argument that politics is not a dirty word, that political accountability is the key to effective governance, and that "these broad principles" should be applied to the prosecutorial function with the maintenance of executive control over that function. This is why, despite the evidence that much of the criticism of the independent counsel was exaggerated, I thought it was better to let the statute expire and return these cases to control by Justice. But here is where your conflation of the two arrangements in your argument troubles me. The fact is that this case was in the hands of Justice, they could have behaved as you wish they had and kept the decision making completely in-house, and they could have concluded, as you think they should have, that there was no crime here. The fact is that using the political authority they lawfully exercise, they chose not to do this but instead to appoint a special counsel. DOJ decided that they needed someone with the appearance of impartiality and DOJ decided who that person would be. Presumably they picked someone in whom they had confidence that he understood the standard rules of prosecution. DOJ is now accountable for that choice. Mr. Fitzgerald is an employee of the department, both in his "day" job and as the special counsel. So where's the constitutional problem? The president's attorney general made a political choice. It is one you disagree with but I don't see how it violates your (or my) principles of accountability.

My second concern has to do with the oft made argument that special prosecutors, in their desperation to justify their existence, (a) charge for secondary crimes like perjury, false statements, and obstruction of justice when they conclude they can't charge for the original crime, and (b) press, through the courts issues, like the reporter's privilege, that do damage to other important legal principles. Let me take each of those separately. Perhaps you are aware of data that show that regular prosecutors don't use these tools (perjury, obstruction, etc.), but I am not. Right off the top of my head I can think of several high profile white collar crime cases involving corporate fraud, where these were the charges ultimately brought by regular prosecutors. They strike me as essential prosecutorial tools in every situation because the ability to get at the facts of the originally identified crime depends on people telling the truth and not conspiring to keep the prosecutor from getting to it. I thought Fitzgerald's analogy in his press conference to the player throwing sand in the umpire's eye was an apt one.

As for the matter of pressing the issue of privilege in a way that damaged it, I have several comments. First, I do think as a First Amendment matter this is a cause for concern but one easily remedied by Congress. Second, at a larger level, I think one cannot place the blame for this legal "brinksmanship," if you will, solely on the shoulders of Mr. Fitzgerald. Every case takes two to tango. The legal precedent in this case was clear but the Times decided to push nonetheless—and, as it turns out—with less than admirable behavior on the part of some of the reporters implicated (I am a fierce advocate of the First Amendment but I am because I want the press to hold public officials accountable, not become pawns in their efforts to shape public opinion). Finally, given the nature of the facts in this case, I am hard pressed to figure out how the prosecutor could find out what happened without subpoenaing reporters.

Enough for now. I look forward to your response.

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Rivkin & Casey: 12/7/05, 09:55 AM
First, we have never argued that there are constitutional problems with the special counsel procedures; even with regard to the independent counsel statute, whatever our personal views may be, the matter of constitutionality has been adjudicated and affirmed by the Supreme Court. Our point, however, is that there are profound policy problems, inherent in the use of any procedures that deviate from the normal prosecutorial setup. Let's get back to the Fitzgerald appointment; technically, you are absolutely right; Justice could have handled the Plame investigation through the normal channels. Unfortunately, given human nature (and we would spare you from being subjected to the recitation of numerous quotes from the Federalist Papers), the existence of special counsel procedures exerts an almost irresistible pull—instead of making tough political calls and catching the inevitable flack, officials are bound to use it.

To put it differently, had the special counsel procedures been abolished, Mr. Ashcroft and Mr. Comey would have had to make the ultimate decision on whether to continue the Plame "leak" investigation, once it became clear that the 1982 IIPA was not implicated and the 1917 Espionage Act did not apply. While they would have been guided by the recommendations of the DOJ prosecutors, the call would have been theirs, publicly and politically. To the extent that they chose to delegate the choice to Mr. Fitzgerald, who, constitutionally speaking, is a subordinate executive branch official, but, as a practical matter, has been completely independent in his actions, Messrs. Ashcroft and Comey got themselves completely off the hook. To emphasize, while there are no constitutional problem with this choice, we would not call it an exercise in political accountability. The fact that Mr. Comey chose, in his February 6, 2004 letter to Patrick Fitzgerald to stipulate that Fitzgerald would have "plenary" powers and that he would not be in any way limited by the existing special counsel procedures, which contemplate continued supervisory/review authority by senior DOJ officials, merely illustrates our point about the irresistible pull to dump the power and accountability when dealing with tough political issues. Had Lord Acton been around when the special/independent counsel procedures were created, he would have undoubtedly come up with some witty aphorism to describe this phenomenon.

Second, as far as Fitzgerald's behavior is concerned, let's stipulate that he is a scrupulously and thoroughly honorable individual, with no political axe to grind. Yet, it would have required a super-human level of probity and guts to call the investigation off within a few weeks of being appointed. For Fitzgerald to do so, would have implicitly told the world that Comey, who by all accounts is his close friend, had dumped a simple, nothing-much-to investigate type of a matter on a special counsel. Instead, he chose to go the way of virtually all special/independent counsels and investigate everything to death.

As for the First Amendment-related issues, we do not profess to know all of the details—Fitzgerald's submissions to the D.C. Circuit remain under seal, although several news organizations have petitioned for their release. However, if, once these submissions have been made public, we discover that Fitzgerald has represented to the judges that he needed reporters testimony to ascertain whether the 1982 statute was indeed infringed and put in all sorts of "sensitive matters of national security are at stake here" verbiage, we would be very much troubled. This is precisely the case because, as far as we are concerned, the reasons why the 1982 statute was not violated had everything to do with the objective facts relating to Ms. Plame's status at the CIA and did not require any further development or elucidation. This, incidentally, means that Fitzgerald's analogy to the player throwing sand in the umpire's eyes was not, to put it mildly, particularly apt.

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Harriger: 12/8/05, 09:04 AM
We agree on constitutionality. I apologize for jumping to the conclusion that your argument about how executive accountability is to function was a constitutional argument—it is quite similar to the one that Justice Scalia made in his dissent in Morrison v. Olson and so I assumed you were in agreement with him.

We also agree that just because something is constitutional doesn't mean it is good policy, and that, as a matter of policy, the independent counsel statute was problematic. Our point of disagreement clearly seems to be around how we should understand and characterize special counsels appointed through the Justice Department. I am far less troubled by this practice than you. To me it represents a historical practice that responds to a particular set of political realities that lead executives to conclude that special investigation is necessary.

First, the use of special counsels in special cases is not a new development. There were several uses that have been documented during the 19th century, most particularly, as I recall, during the Grant Administration. The Tea Pot Dome scandal of the 1920s involved special counsels (co-counsels, interestingly enough, one from each party), and they were used sporadically since, at both the state and national level. Watergate, of course, represents the pre-independent counsel statute use that most of us are familiar with. Second, in all of the uses of special counsels in ad hoc situations like this, the appointments were made because of a set of circumstances that suggested that, for political reasons, special counsel should investigate the allegations. These circumstances involved allegations that implicated the Department of Justice itself and/or implicated the President, Vice President, and their immediate staff. I believe that when you have one or more of those circumstances, it is extremely difficult politically to persuade the press, the public, and members of the opposite party that no conflict of interest exists in the executive investigating itself. And unfortunately, in some of the circumstances it has been clear that the administration has sought, in the early stages of the investigation, to stop investigations or thwart them in some way. So its not as if we have no evidence that, when left to their own devises, executive officials don't sometimes abuse their power in an attempt to cover up their misdeeds—something Lord Acton no doubt also speaks to. It is also the case that, with some exceptions, 20th century presidents have often appointed as Attorney General people with whom they had close personal ties and who were often perceived as having a loyalty first to the man in office rather than the presidency itself. In all of these cases, the executive officials were masters of their own destiny so to speak, unencumbered by laws requiring them to make such appointments and in these cases they nonetheless chose to seek special counsel. Combined, this leads me to conclude that the appointment of special prosecutors is sometimes a pragmatic, political response and that appointments will continue to happen in this fashion despite the fact that no statute requires it.

I think in an earlier post I responded to the claim you continue to make that special prosecutors somehow always feel forced to cross every t, dot every i, "investigate everything to death," and indict on something regardless of whether it involves the original crime. My research demonstrates that this claim is not supported by the empirical evidence over the course of all investigations. And I don't think that special prosecutors are unique in pursuing false statement, perjury, and obstruction of justice charges even if they conclude they can not successfully prosecute the original allegations. Much of what we see in terms of special prosecutor behavior is quite similar to what we would see in other white collar crime investigations and the problems they face in pursuing those investigations are comparable—ambiguous criminal statutes, high-powered defense attorneys who pursue strategies of delay and litigation over most of the issues presented to the court, and dissembling defendants who get themselves into more trouble trying to cover up their original act than they would have been in had they simply admitted to allegations (or better yet, not engaged in them!). Prosecutors, both special and regular, resent it when their efforts to get at the truth are obstructed by dishonesty. Presumably we as a society agree with them on that, since our representatives have made those behaviors criminal and authorized prosecutors to pursue such charges regardless of whether the charges that began the investigation are prosecuted.

As you correctly point out, there is much still to learn about the Fitzgerald investigation and as the case unfolds I'm sure we will learn more. But if the facts as alleged in the indictment are found to be true, is it your position that such behavior by Libby is undeserving of prosecution?

Rivkin & Casey: 12/8/05, 12:50 PM
While we have closed the constitutional gap, so to speak, we continue to disagree about the policy. It may be useful to reiterate exactly where Lee and I think we differ with you. We would concede that there were instances in the past where Executive Branch officials abused their power and, later on, abused their power again to, as you put it, "cover up their misdeeds." We also have no doubt that, regrettably, similar problems may occur in the future. To be sure, given the enterprising nature of today's media and its ability to ferret out all sorts of governmental secrets, we believe that the possibility of future investigatory abuses has been greatly curtailed, albeit not completely eliminated. Yet, while we agree on the definition of the problem, we part company when it comes to the question of what to do about it. In our view, accepting some level of imperfection in the government's ability to self-investigate is the right answer; creating an alternative investigatory system is the wrong remedy and the cure worse than the disease.

It is indeed the case that there is no detailed empirical evidence that would enable us to compare the work of special prosecutors with that of the line attorneys of DOJ's public integrity section. We can tell you, however, that looking at the several recent independent/special counsel investigations, spanning the tenure of both Republican and Democrat administrations, does not inspire much confidence. The investigations are indeed long, expensive and yes, investigate everything to death. It is this part, not necessarily the decision whether to indict, that is most troublesome to us. In this regard, and to answer your question, if Fitzgerald believed that Libby has perjured himself or obstructed justice, then indictment would be quite proper. These are serious offenses, not to be treated lightly. The problem lies with how Mr. Fitzgerald has gotten to that point and what he trampled in the process. In all of our previous posts, we have written that, in our view, Mr. Fitzgerald knew early on in his investigation that neither the 1982 IIPA nor the 1917 Espionage Act were violated by either Mr. Libby—or anybody else for that matter—all because Valerie Plame was not a covert agent within the meeting of the 1982 statute, and that, given her status, no further investigatory facts could have altered this reality.

Interestingly enough, our view has been buttressed by the information, reported earlier this week in the Wall Street Journal. As you may know, Dow Jones & Company, together with some other media organizations, has requested that the D.C. Circuit unseal 8-pages worth of redacted information that was originally used by Mr. Fitzgerald in an effort to convince the Circuit to uphold jailing Judith Miller. Lee and I have often discussed what might be in those 8 pages, wondering whether Mr. Fitzgerald told the court that it was necessary to breach the reporter's privilege, admittedly not an absolute one, but utterly deserving of serious First Amendment protections, because he was investigating a matter of serious national security concern, i.e., an outing of a covert CIA operative. While the pages have not yet been released, Mr. Fitzgerald has apparently joined in asking the D.C. Circuit to unseal Libby-related portions of the redacted material. Even more importantly, his filing in the D.C. Circuit concedes "that the information in the eight redacted pages is all related to contradictory testimony (hence the charges of perjury and obstruction of justice), not to any deep government secrets. He even notes that none of the redacted material is still classified." Let us assume that Mr. Fitzgerald indeed had a strong hunch that Mr. Libby has never heard about Valerie Plame's CIA employment from a reporter, but only and exclusively learned this fact from other government officials. (This is actually a very generous assumption on our part, because it is not clear how Mr. Fitzgerald could have had such a hunch, until and unless he had an opportunity to put Mr. Cooper and Ms. Miller, reporters all, before the grand jury. Ironically, of course, with the emergence of Mr. Woodward as another reporter who has talked to Mr. Libby, we now know that Mr. Fitzgerald may have been wrong and Mr. Libby may indeed be telling the truth about learning about Ms. Plame's identity from a reporter, as well as from government officials.) In any case, even assuming that Mr. Fitzgerald had a hunch, and taking into account the normal U.S. attorney manual-prescribed procedures for dealing with reporters, we very much doubt that the possibility of catching Mr. Libby in a possible perjury would have been sufficient to breach reporter's privilege.

Herein, lies the crux of the problem. In an effort to be thorough and leave no stone unturned, Mr. Fitzgerald has balanced the conflicting policy imperatives in a way which, in our view, an ordinary prosecutor would not have done.

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Harriger: 12/9/05, 08:09 AM
Perhaps we've exhausted the larger substantive arguments about special counsels and their usefulness (or lack thereof) and that merits arguing about the details of the current special counsel investigation. I actually have a few final points I'd like to make about the use of special counsel generally, but first I'll bite on the Fitzgerald investigation to offer a few responses.

While it is true that Fitzgerald did not have Miller's and Cooper's testimony revealing contradictions in testimony, he did already have the testimony of several other reporters. He also had the statements Libby made to FBI investigators for which he is charged with false statements. This strikes me as more than a "hunch" that might justify his filings with the court. And since you agree that perjury, obstruction, and false statements are crimes that, if proven, are deserving of punishment, it's difficult to see why you would be troubled by Fitzgerald making this case to the court. Second, as I argued earlier, the courts that reviewed these filings offered a check on Fitzgerald's authority and, if they saw a weak argument based on a "hunch," I doubt they would have overridden the reporters' privilege. So the facts that trouble you don't currently trouble me.

More generally, I think it is far too early to conclude that special counsels like the one we have now are not much different than independent counsels under the statute and will be fraught with all the same problems that came with those investigations. We've had exactly one public appointment of a special counsel in the almost six years since the statute expired. That doesn't suggest to me that we are going to be subjected to what seemed like the constant barrage of appointments (an average of 1 per year) that occurred during the life of the I.C. statute. I considered that a problem, as I said in my first post, and the consequence of too easy a triggering mechanism and too broad a pool of covered officials. In this one post-I.C. statute appointment, all the characteristics that I think merit appointment of special counsel by the DOJ are present. This case implicates at least the top aides to the President and Vice President and it involves issues about which there is enormous public interest and concern. Special counsels have been used historically in just such situations because it matters that the public believe that such allegations will be fairly and impartially investigated.

As I said before, I am not persuaded by the evidence that I've seen that special prosecutors behave that differently from prosecutors in white collar criminal cases (and not just in the Public Integrity section but in U.S. Attorney and state prosecutors' offices as well). Delay is a part of the defense strategy in these cases. The challenge the special prosecutor faces in dealing with that strategy is that everyone is watching the "clock" on the investigation in a way that often goes unnoticed in less high profile cases. The other challenge is the reality that in a highly divisive partisan context like the one we've been in for several decades now, dislike for what a special prosecutor does and the willingness to attack or defend them seems to be largely driven by whose ox is getting gored. While I'm not accusing you of this, it intrigues me that some people who found lying before a grand jury about whether you had consensual sex with someone was an impeachable offense, seem to think lying before a grand jury about whether you released classified information is a trumped up charge by a prosecutor who couldn't prove what he was first assigned to do. In my humble opinion, lying before a grand jury is lying before a grand jury—not necessarily an impeachable offense, but worthy of investigation by an impartial investigator and worthy of punishment if proven in a court of law in both cases.

In the end, I think we will always have special counsels but I think they will be rarer than they were in the first two decades after Watergate and I think that is a good thing. We learned from that experience that ready resort to such an arrangement anytime there is an allegation of misconduct by anyone in the executive branch is unwarranted, expensive, and probably counterproductive in terms of trying to inspire public confidence in government. But the need to occasionally have the DOJ remove itself from an investigation and have someone else investigate has always been with us and probably always will be. I don't think that is a bad thing. You do. At the core, that is our disagreement. I've enjoyed our exchange.

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