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Thursday, October 02, 2003

"Special counsel" versus "independent counsel" versus "career staff": Who should hunt down whoever blew Mrs. Wilson's cover?

Even for those who weren't already convinced by Lawrence Walsh's performance on Iran-Contra, the Kenneth Starr saga during Monicagate was pretty much the last nail in the coffin for the post-Watergate federal law passed authorizing "independent counsel" for cases deemed inappropriate for the Justice Department to handle through normal channels.   When it expired in 1999, that law was not much lamented, as evidenced by contemporaneous stories run by CNN and WaPo.  Senator Joe Lieberman was an exception then — so it's no surprise that in response to the Mrs. Wilson Affair, he's just proposed reinstating the independent counsel law with some modifications intended to address the main criticisms of the prior statute. 

"Chatterbox" Timothy Noah of Slate reacted to this proposal with a pithy reminder of those criticisms — first, that by "giving prosecutors unlimited funds, the law encouraged investigations that never ended, running up huge legal bills for targets who rarely ended up getting indicted, much less convicted"; and second, that the law "failed to insulate investigations from politics."  I entirely agree that Sen. Lieberman's proposal is a very bad idea.  And in any event there's no possibility that it could zip through Congress and be signed by the President with the same speed as the "Do Not Call List" corrective legislation; this affair, while not a genuine "crisis," just can't wait.

When the independent counsel law expired, it was replaced instead with a set of Justice Department regulations effective July 1, 1999 (initially published with commentary at 64 Fed. Reg. 37042 (1999), now codified without substantial change at 28 C.F.R. part 600, §§ 600.1 to 600.10 (2003)).  The commentary explains that these regulations permit

appointment of Special Counsel to investigate and, when appropriate, to prosecute matters when the Attorney General concludes that extraordinary circumstances exist such that the public interest would be served by removing a large degree of responsibility for a matter from the Department of Justice.

Section 600.1 of the regulations confers almost absolute discretion on the Attorney General by authorizing appointment of a Special Counsel when the AG

determines that criminal investigation of a person or matter is warranted and —

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

While a Special Counsel is, according to the commentary, "free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought," he may only do so "within the context of the established procedures of the Department" — and even then the regulations envision that

ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General (or the Acting Attorney General if the Attorney General is personally recused in the matter); thus, the regulations explicitly acknowledge the possibility of review of specific decisions reached by the Special Counsel.

The AG's discretion also includes selecting the Special Counsel (section 600.3), defining the scope of his mandate and approving any changes to it (section 600.4), presenting the Special Counsel with a list of DoJ staff to choose among (section 600.5), controlling the Special Counsel's budget (section 6.008), and even disciplining or firing the Special Counsel (section 600.7(c) & (d)).

A bevy of Democratic Senators — Schumer, Daschle, Biden, Levin, and Rockefeller —  are now demanding that Attorney General John Ashcroft appoint a Special Counsel under these provisions to investigate the leak regarding Mrs. Wilson.  They've given no very good reason for their demands other than their reflexive distrust of Ashcroft. 

So far, however, Ashcroft appears to be keeping the matter in-house at DoJ.  Although he personally has "not entertained questions about appointing a special counsel," and although Fox News claims that another administration official has stated that Ashcroft "would not likely appoint a special counsel," the preconditions for appointment cited by that unnamed official pretty closely track the regulations — which collapses Fox News' story back into "he'll appoint one only if he thinks he should appoint one."  And Rebecca Carr of the Atlanta Journal-Constitution has this remarkable report:

John Dion, head of the [Justice D]epartment's counterespionage section, not Ashcroft, decided to initiate the investigation Friday into who identified [Mrs. Wilson], a CIA officer, to syndicated columnist Robert Novak and two Newsday reporters. As is the department's custom in such cases, he did not consult Ashcroft first.

(Emphasis added by Beldar.)  However, Carr goes on to report that the option of appointing a Special Counsel "has not been ruled out, according to Mark Corallo, chief spokesman for the Justice Department."  Indeed, section 600.2 of the regulations, which lists the "alternatives available to the Attorney General," expressly envisions that an AG can start the investigative ball rolling with career staff, without thereby foreclosing the option of switching:

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

Dana Milbank and Mike Allen at WaPo point out that according to a WaPo/ABC News poll, "[n]early seven in 10 Americans believe a special prosecutor should be named to investigate allegations that Bush administration officials illegally leaked the name of an undercover CIA agent."  Referring to a separate set of DoJ regulations regarding when and how DoJ can attempt to compel reporters to reveal sources (about which Prof. Eugene Volokh has recently blogged here, here, and here), they say:

Justice Department regulations may make it difficult for Attorney General John D. Ashcroft to leave the matter to his career staff, as he has proposed, particularly if journalists who received the leaks are to be questioned. The regulations state that "no subpoena may be issued to any member of the news media without the express authorization of the Attorney General."

I can't figure out what difficulties Milbank and Allen have in mind, however.  Section 600.7(a) of the Special Counsel regs would almost certainly require even a Special Counsel to follow the existing regs regarding compulsion of journalists, including getting Ashcroft's personal okay before issuing a subpoena to Robert Novak or any other journalist:

A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures.

The same section permits a Special Counsel to go straight to the AG to ask permission to deviate from those rules, and section 600.7(b) provides that the AG should "give great weight to the views of the Special Counsel"; but provided that the AG notifies Congress when he's done so (section 600.9), an AG can still veto a Special Counsel's decisions, so he certainly has the power to turn down a Special Counsel's request to subpoena journalists.  If Milbank and Allen only mean that Ashcroft personally isn't likely to be able to stay altogether out of the loop (and weren't intending to suggest that these regs might oblige him to name a Special Counsel), I still don't catch the significance.  There's no reason to think that Ashcroft personally has any greater conflict of interest than any other political appointee at DoJ, even though he's the target of most of the left-wingers' venom; even Schumer et al. aren't calling for Ashcroft's absolute personal recusal.  [See second update below; text now edited to show strike-through wasn't correct. — ed.]

Thus, in terms of where the raw power is and will necessarily remain (at least absent a renewal of the independent counsel law), the appointment of a Special Counsel would not change anything.  At least in theory, a Special Counsel appointed under these regs is subject to an Archibald Cox-type "Saturday Night Massacre."  This prompts Chatterbox Noah to wonder whether appointment of a Special Counsel "is worth the bother."  I certainly agree with Noah that

[i]f John Ashcroft tries to strangle the [Mrs. Wilson] investigation, [it's] guarantee[d] that the fruits of that investigation will find their way into the news media. There are many obstacles to finding the White House's phantom leaker — leakers are notoriously difficult to identify — but political pressure is not one of them.

And I also am confident that within DoJ there are indeed seasoned, ethical, and capable career professionals who can and will do a bang-up, first-rate job.  Certainly the first reports about the DoJ staff handling the inquiry suggest that the "A Team" has been called in.

The really real Jennifer Garner -- fire extinguisher not optionalMoreover, I'm extremely skeptical of the general notion that every time someone can hypothesize a "political" connection to a proposed investigation, that automatically means that the Attorney General and the DoJ are "conflicted out."  It doesn't take me long to conclude, for instance, that we don't need a Special Counsel to figure out if the Iraq War was Vice President Cheney's payoff to Halliburton.  And my gut hunch continues to tell me that there is less to this whole affair than meets the eye — especially if one's eyeballing former Ambassador Joseph Wilson as he makes the rounds of the talk-shows, jokes about "who would play [his wife] in the movie," and (God help me, we've come to the point where I'm linking Maureen Dowd!) calls her "the real-life Jennifer Garner." 

What the Special Counsel procedures do accomplish, to the extent they actually have any significance, is to formalize the rules to be followed on what should be comparatively rare occasions when "the public interest," broadly defined, will genuinely be furthered by "removing a large degree of responsibility for a matter from the Department of Justice."  Deciding whether this is such an occasion is obviously a judgment call. 

Even if you think (as I do) that Amb. Wilson is a bozo, you probably hope (as I do) that his wife and any agents she may have run or contacts she may have made are all safe from retribution by enemies of the US.  But the crime — if one has been committed — was against the people of the United States.  There would be genuine value to the republic in reassuring its public that possible spy-outers are taken very, very seriously during wartime, and that political connections cannot shelter any such criminals.  Dubya's administration has always had an anti-leak passion that dates back to his personal fury at leakers who undercut the GHW Bush Administration for fun and profit during 1989-1993.  A nationally televised perp-walk would be a very good thing for the war effort if there are indeed grounds to believe — after a more detailed investigation than can be done in the popular press and the blogosphere — that a crime has in fact been committed here.  We can warm up the cell in between Jonathan Pollard and Aldrich Ames, perhaps. 

And if it turns out instead that no prosecution is warranted, it would be best for that conclusion to be presented by Ashcroft transmitting the Special Counsel's report to that effect to Congress, rather than just announcing it on his own say-so, if only for purposes of avoiding appearances of impropriety.

So if it were my call, I'd pull the trigger and appoint a Special Counsel now — and in fact I'd pre-authorize him to subpoena Novak or any other journalist and put him on a fast, wide track. 

And I even know the highly respected, unemployed ex-Justice Department professional, currently attending baseball games and touring California by bus, who I'd ask to take the job — a former US Attorney for the Southern District of New York who's widely acknowledged to be pretty committed when it comes to War on Terror issues:

Rudy Giuliani.


UPDATE (Thu Oct 2 @ 9:30am):   Prof. Glenn Reynolds has graciously linked this post from InstaPundit, and also posted a terrific movie dialog quote and a reprint of a piece he wrote for Newsday in 1999 regarding the unlamented expiration of, and many flaws in, the Independent Counsel Act.  (Now I feel guilty that I didn't buy his very relevant book, Appearance of Impropriety, back in August despite our disagreement over Jamie Gorelick's conflict of interest.)   And Ernie the Attorney also seems to like Jennifer Garner — or at least appreciates my creativity in finding a way to include her picture in a post that's otherwise a bit heavy on citations to the Code of Federal Regulations.

UPDATE (Thu Oct 2 @ 5pm):   The New York Times reports that Attorney-General Ashcroft may indeed have personal ties to one potential suspect, Karl Rove, based on Rove having served as a consultant for Ashcroft in Ashcroft's own political campaigns for governor and then senator in Missouri.  Thus, contrary to what I wrote earlier, that may indeed pose a possible basis upon which Ashcroft might have to personally recuse himself, even if it didn't oblige whoever's next in line downstream to disqualify all of DoJ.  It should not, however, make any ultimate difference because someone acting in Ashcroft's place would essentially step into his shoes and wield all his powers — including the power to appoint a Special Counsel or to refuse to do so, and also including the power to decide whether to subpoena journalists like Novak to get at their leak sources.  And it could be that Ashcroft is hoping that an early vindication of Rove would solve the problem anyway.

Posted by Beldar at 01:46 AM in Current Affairs, Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to "Special counsel" versus "independent counsel" versus "career staff": Who should hunt down whoever blew Mrs. Wilson's cover? and sent a trackback ping are listed here:

» Novak: The Autopsy from Frankly, I'd Rather Not

Tracked on Oct 2, 2003 12:37:56 PM

» Plame from Foolippic

Tracked on Oct 2, 2003 1:25:23 PM


(1) Mike Thomas made the following comment | Oct 2, 2003 10:30:26 AM | Permalink

I've greatly enjoyed your commentaries on the Plame Affair.
I have one question, though. How can you continue to question whether a crime was even committed in this case? It would seem to me that the bank vault is open and the money is gone - the only question that remains is who took the money. Assuming you found the White House official(s) who was running around telling folks about Plame's occupation, is there some kind of loophole in the current law that would allow them to get off with no criminal charges?

Also, your suggestion of Rudy Guiliani as the Special Counsel in this case is an interesting one. However, that raises one other question - Is there some law requiring that every Special Counsel must be a Republican?
I mean, Robert Walsh was a Republican appointed to investigate Iran-Contra; Robert Fiske was a Republican appointed to investigate Whitewater (however he was later determined to be insufficiently partisan and was subsequently replaced with the hyper-partisan Kenneth Starr), and so forth. Can we ever expect to have a Democrat appointed in one of these investigations?

(2) Beldar made the following comment | Oct 3, 2003 8:39:16 AM | Permalink

Thanks for posting, Mike!

I would agree that it would be hard for reasonable persons to doubt at this point that some impropriety occurred — an act of exceedingly bad judgment, at the very minimum, even if it didn't rise to the level of a felony criminal offense under the Intelligence Identities Protection Act or other statutes. Its consequences are far less clear, but they seem, fortunately, to be small from what we in the public know. (I wish I could take more comfort from that, but I can't because it seems likely to me that if there were or may be more serious consequences, they're precisely the sort of thing that CIA or other intelligence agencies would be aggressively trying to keep secret now as part of their damage control operations.)

Concluding that a crime has been committed, however, is much harder.

One key element of proof in obtaining a conviction would be establishing "beyond a reasonable doubt" that the government was "taking affirmative measures" to conceal the covert agent's identity. That's a phrase that hasn't been interpreted in any appellate court decisions yet, at least with respect to this statute, so there's some legal uncertainty about what sort of facts might satisfy it in the abstract. In the particular, there's also considerable dispute in press accounts as to what Mrs. Wilson's job actually was, and there are at least strong suggestions that her cover may not have been meticulously preserved, completely apart from anything the alleged leakers did or didn't do. If so, that may not excuse the exercise of horrible judgment by the leakers, but it might make a conviction impossible to obtain.

Moreover, a prosecutor would have to prove not only that the government was taking "affirmative measures" to conceal her intelligency agency role, but also that the defendant in any criminal trial knew that fact. This is a question of subjective knowledge and intent that, absent a confession, a prosecutor can only prove by circumstantial evidence. Since we don't yet even know the identity of the leakers, we certainly don't know anything about their circumstances, or in particular how strongly they'd give rise to an inference of knowledge and intention. I'm not at all saying that this would be an impossible burden to meet — the point's been made, and is well taken, that high-level officials certainly ought to be charged with a fairly high standard of care not to be blabbering about CIA connections recklessly — but I'm trying to look at this from the standpoint of a prosecutor sizing up his potential case. From that perspective, clearly this is an area that would require lots of attention.

Finally, there's the definition of "covert" in 50 U.S.C. § 426(4), which requires not only that a covert agent's identity as an officer, employee, or member of an intelligence agency be classified information (which presumably can be shown by simply cross-referencing her job title and description against agency rules), but also that the agent was "serving outside the United States" within the past five years. That again would seem to be comparatively straightforward compared, for instance, to the "affirmative measures" and knowledge/intent issues, but it's something I've not yet seen discussed in detail in press accounts, and it would be another essential part of any prospective prosecution.

Regarding party affiliations:   To have the stature necessary to be credible as a Special Counsel, you're probably talking about someone who's served as a political appointee in DoJ — US Attorney-level or above. For fourteen of the last twenty-two years, Republican Presidents have been in office, meaning those appointees have been mostly Republicans; but I'm sure there are also a great many Democrats, mostly Clinton appointees but perhaps some going back to the Carter administration, who'd be acceptable candidates as well.

I proposed Giuliani's name because my sense is that based on his tenure as mayor of New York, especially from 9/11/01 through the remaining few months of his administration, he gained very wide bipartisan admiration nationally, perhaps making him one of the rare examples of someone whose credibility transcends party affiliation.

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