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No More Special Counsels

By David B. Rivkin Jr. and Lee A. Casey
Saturday, October 29, 2005

Special counsel Patrick Fitzgerald's indictment of I. Lewis "Scooter" Libby should be the final proof that the system of "special prosecutors" is bankrupt and ought to be abandoned.

Fitzgerald, a highly respected federal prosecutor from Chicago, was given the task of investigating 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 -- Fitzgerald knew this law had not been violated. Plame was not a "covert" agent but a bureaucrat working at CIA headquarters. Instead of closing shop, however, Fitzgerald sought an expansion of his mandate and has now charged 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 Plame affair began with the implication by Plame's husband, former ambassador Joseph C. Wilson IV, that Vice President Cheney had sent him on a mission to Niger in 2002 to investigate claims that Saddam Hussein had attempted to buy nuclear weapons material. Iraq's efforts to obtain weapons-grade uranium ore or "yellowcake" in Africa became an element of President Bush's justification for war, and it was included in his 2003 State of the Union address. British intelligence also believed that this attempt had been made, and the CIA's review of the matter -- including Wilson's trip -- emphatically did not suggest otherwise. Nevertheless, in July 2003 Wilson published a New York Times op-ed piece designed to undercut the administration's claims regarding Iraq's nuclear ambitions. The piece noted that Cheney's office had "asked a serious question. I was asked to help formulate the answer," and Wilson criticized the administration for proceeding to war despite his conclusions.

In fact, Wilson was not selected by Cheney's office. His wife, a CIA analyst working at the agency's Northern Virginia headquarters, was involved in getting him the assignment. Apparently in an effort to set the record straight, and to put the whole story before the American people, administration officials told columnist Robert D. Novak about Plame's role in selecting her husband for the Niger mission. Administration critics immediately alleged that the name of a "covert" CIA agent had been revealed -- a federal crime. Instead of permitting this allegation to be investigated in the normal course of events by federal prosecutors in Washington, the Justice Department tapped Fitzgerald, the U.S. attorney in Chicago, to serve as a "special counsel" to investigate the officials who might have been involved. Ironically, the pressure to appoint a special counsel came only after the information about the Justice Department internal investigation was leaked to the media.

The age of special prosecutors, of course, began with Watergate. Since that time, a series of "independent counsels" and "special counsels" has left 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 Bill Clinton left office. The independent counsel statute was not renewed and is no longer in effect. But the attorney general may still appoint special counsels as an administrative act, and this is how Fitzgerald took office. He should be the last.

The reasons were well and truly articulated 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."

By being assigned to investigate one individual, or a small group, the prosecutor is deprived of normal constraints such as resource limitations and the perspective of having to choose from a range of cases to pursue. Another vital missing ingredient is supervision. Normally federal prosecutors have political superiors who review their decisions. This is supposed to be the case even with special counsels. Unfortunately, for reasons that are not entirely clear -- but that may have involved some buck-passing by Justice Department officials -- Fitzgerald was specifically excused from even this minimal check on his power and as a consequence was accountable only to himself.

Enough should be enough. The courts will now handle Fitzgerald's allegations against Libby. But in the future, the investigation of high-level misconduct should not be removed from the normal processes of the Justice Department. The U.S. attorneys, and the department's Criminal Division, are fully capable of investigating and prosecuting alleged wrongdoing by important government officials, and can do it with proper perspective. Almost all federal prosecutors are, in fact, career lawyers quite capable of balking if their political supervisors abuse their authority. They should be left alone to do their jobs.

The writers are Washington lawyers who served in the Justice Department during the administrations of Ronald Reagan and George H.W. Bush.

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