March 8, 2007
The Libby Verdict III Posted by Alexander Burns at 02:50 PM EST I’d like to further discuss the final contention in John Steele Gordon’s last post, regarding the position of the special prosecutor. Mr. Gordon writes that it is “unequivocally clear . . . that appointing special prosecutors to handle politically sensitive cases is the worst idea to arise out of American democracy since Prohibition.” I assume Mr. Gordon is being slightly hyperbolic here, but his main point is a serious one and, I think, one deserving of additional consideration. I certainly won’t disagree that the special prosecutor position, as currently defined and performed, is flawed, and that the last two decades provide ample evidence of this. I don’t think Lawrence Walsh was an unmitigated disaster on the scale of Kenneth Starr, but I can understand why conservatives resent his investigation. Starr, for his part, was surely one of the most loathsome and irresponsible men of the 1990s. I have limited sympathy for administrations that appoint special prosecutors and then find their investigations inconvenient. But it’s also understandable that someone like Clinton would find it difficult to fire even someone like Starr, when the latter would not hesitate to evoke the specter of Archibald Cox, Richard Nixon, and the Saturday Night Massacre. Still, while it’s clear that the special prosecutor is not a perfect investigatory mechanism, doing away with it altogether might be a worse option. First, an administration is never forced to appoint a special prosecutor; it does so when an internal conflict of interest requires an independent investigation to occur. If government is to retain its legitimacy in the eyes of the public, there has to be some such mechanism in place when the executive branch cannot be trusted to investigate itself. Even if special prosecutors tend to run imperfect investigations, I would fear the political consequences of these investigations being supervised by people like John Ashcroft or Janet Reno. Would any conservative believe that Whitewater was aboveboard if the Clinton Justice Department had been responsible for that conclusion? And would any liberals believe that Richard Armitage was the only leaker in the Plame case if Ashcroft had been the investigating officer? A second point in defense of special prosecutors is that an adequately Machiavellian administration, finding itself under politically undesirable scrutiny, actually can fire investigators who are less protected than a special prosecutor. I cannot think of better proof of this fact than this week’s congressional hearings on the suspicious dismissals of eight United States attorneys. As the hearings have made clear, a whole team of federal prosecutors have recently lost their jobs due to political considerations. Carol Lam, the U.S. attorney in San Diego, was fired after investigating the corruption scandal around former Congressman Randy “Duke” Cunningham. David Iglesias, the U.S. attorney for New Mexico, ended up unemployed when he failed to comply with politically motivated requests from Rep. Heather Wilson and Sen. Pete Domenici. The U.S. attorney for Maryland, who found himself under pressure to lay off an investigation into associates of then-Gov. Robert Ehrlich, also fell victim to a purge from above. Not all the fired U.S. attorneys lost their jobs for such defensive reasons. Some, like Arkansas’s Bud Cummins, seem to have been removed simply to make room for someone new—someone like J. Timothy Griffin, who, with a few years of prosecutorial experience, could someday run for high office as a Republican. Because the executive branch, operating under the Patriot Act, has broad discretion in overseeing the criminal justice system, there is little that can be done to redress the grievances of the eight ousted prosecutors. In this circumstance, Congress is doing its best to expose the excesses of the executive, but it cannot restore these attorneys to their offices. I still agree with Mr. Gordon that the special prosecutor is a flawed mechanism of oversight. But since the name and memory of Archibald Cox are evidently not enough to keep justice apolitical, I tend to worry more about politicians interfering with the work of prosecutors than about prosecutors interfering in the political process. Michael Barone, no left-winger he, commented yesterday [Correction: It turns out that the blog posting at www.usnews.com was misattributed to Michael Barone and was actually written by Bonnie Erb] that “what’s going on in Washington is not sufficiently removed from the routine doings of a tawdry Third World dictatorship to give any American comfort.” I’m somewhat comforted by the notion that, in an extreme circumstance, a special prosecutor could be appointed to investigate potentially tyrannical malfeasance. If his investigation ends up being overzealous, that may be a price worth paying.
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