Of course, calls for a special counsel
    are just partisan whining…

…but at least one veteran of the federal prosecution wars (hired under Bush I) thinks it’s obviously a good idea. [*]

Actually, he makes the case sound just as straightforward as I’ve always thought it was.

I don’t think having a special counsel is as important as having the President announce a “no-pardons” policy and demand that his senior subordinates say in writing right now what they know about the matter, but the logic behind it on its own merits is pretty clear.

In particular, if the case remains within the Justice Department, the Attorney General himself must decide which, if any, important Washington journalists get subpoenas demanding that they reveal confidential sources. Is that the sort of power you want to give a (very) political appointee of an administation with a well-deserved reputation for fighting dirty?

The obvious first target, for example, is Clifford May, who says someone not in the government told him about Valerie Plame’s role at the CIA before Novak published it. May was formerly communications director of the Republican National Committee. Given a choice between May and Mike Allen of the Washington Post, who broke the story in a way that was bad for the Administration, and who knows what the President would dearly love to know — which of his subordinates ratted out the others — can you trust John Ashcroft (who has already demonstrated much less enthusiasm in pursuing this case than he did in pursuing much less harmful leaks apparently from Capitol Hill, starting no investigation for more than two months, until the CIA virtually forced his hand) to make a completely nonpolitical choice?

Special prosecutor needed for CIA leak

By James Orenstein.

James Orenstein was a federal prosecutor from 1990 to 2001

October 10, 2003

There are a lot of tough calls that federal prosecutors have to make, but there are also some very easy ones. Here are two that U.S. Atty. Gen. John Ashcroft missed:

1. Don’t investigate your friends; find someone else to do it.

2. Don’t give the people you investigate a chance to destroy evidence.

It took more than two months for the U.S. Justice Department to launch an investigation after the FBI learned that “senior administration officials” may have illegally leaked the identity of a covert CIA operative. And when Justice Department officials finally did so, they broke basic investigative rules by ignoring an obvious conflict of interest and compounding the problem with inexplicable delays in securing the critical evidence.

Exposing an undercover operative is a federal crime punishable by up to 10 years in prison because it strikes at the very heart of the CIA’s mission to protect our national security.

The first President Bush, himself a former CIA director, understandably described the people who reveal such secrets as “the most insidious of traitors.”

The investigation into such a serious offense must be done thoroughly, professionally, and above all, credibly. Because of the extraordinary conflicts of interest in this case, even the Justice Department’s talented career prosecutors cannot fulfill the latter requirement so long as they answer directly to a White House appointee. Ashcroft is President Bush’s friend and political ally. He is Karl Rove’s former client and works hand in hand with White House Counsel Alberto Gonzales.

While none of these men may have done anything to endanger a CIA operative, Ashcroft’s close White House ties plainly raise the appearance of a debilitating conflict of interest.

Further, in an investigation like this, Ashcroft is not merely the passive supervisor of work done by others. To cite just one problem, the career prosecutors may conclude that a thorough investigation requires them to issue subpoenas to journalists. But under federal regulations, they can do so only with the express personal consent of Ashcroft himself.

The Justice Department’s conflict of interest–and the need for an independent prosecutor–has been made more critical by missteps right at the investigation’s start. The Justice Department launched its official probe Sept. 26, but neglected to direct the White House to preserve critical evidence until the night of Sept. 29. When the department finally did issue that instruction, the president’s lawyer asked whether he could wait until the next morning to notify his staff.

A career prosecutor should instinctively have responded: “No way–and why are you even asking?” Instead, whoever made the call at Justice gave the White House the additional delay it sought. Compounding the problem, the Justice Department gave the White House an additional two weeks to funnel its responses through Gonzales–an accommodation that an independent prosecutor might or might not make, but only after ensuring proper safeguards were in place to protect the integrity of the evidence.

Justice Department prosecutors handling the leak investigation now face the conflict inherent in assessing whether their own colleagues, wittingly or not, obstructed their inquiry.

There’s yet another important reason to go outside the Justice Department in this case. The CIA has a vital interest in punishing anyone who exposes its agents. If Ashcroft clears the White House of misconduct, the agency may understandably be concerned that its interests were subordinated to a political agenda. But if the exoneration comes from an impartial special counsel, the CIA will have no reason to blame the Justice Department, whatever it thinks of the outcome.

The new special counsel rules have only been used once, in connection with the Waco, Texas, tragedy. The result of that investigation was an exhaustive final report exonerating high-ranking government officials, including then-U.S. Atty. Gen. Janet Reno, a Democrat. It was widely accepted as credible precisely because it came from John Danforth, a respected Republican former U.S. senator. For the same reason, in this case the Justice Department can only benefit from the appointment of a special counsel of sterling integrity from outside the Republican Party.

If Ashcroft continues to ignore the overwhelming majority who recognize that he should appoint a special counsel, he will put his own prosecutors in an impossible position and ultimately undermine national security. He still has time to change his mind. We should all hope he does.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com