Incredibly, Sen. Joe Lieberman, a candidate for the Democratic presidential nomination, is calling for a reinstatement of the independent counsel statute. His purpose is to “reassure a skeptical public” that investigations like the one recently launched by the Justice Department to find out who in the Bush White House leaked the name of CIA employee Valerie Plame “will be insulated from the political influence of the very people under suspicion.”
InsertArt(2031231)I FAVOR an investigation of the Plame affair; if the CIA thinks a law may have been violated — and its referral of this matter to the Justice Department shows it does — that probably means that revealing Plame’s identity harmed national security. But please God, don’t give the job to an independent counsel.
The independent counsel law was allowed to expire in 1999 amid rare consensus between Democrats and Republicans that the runaway prosecutions it encouraged had become a dangerous partisan weapon. Conservatives like Supreme Court Justice Antonin Scalia had argued this point through the 1980s, while Republicans held the White House. When Democrats moved in the following decade, they came to see that Scalia had a point. Even Kenneth Starr had to admit, in the midst of his own fevered investigation of Bill Clinton, that the law wasn’t worth renewing. He thought it was unconstitutional. (That he took the job anyway was one indication — his prior legal assistance to Paula Jones’ sexual harassment suit against Clinton was another — of how much Starr hated Clinton’s guts.) Practically the only person in Washington who was sorry to see the independent counsel law die was Larry Klayman, the polymorphously litigious chairman and founder of Judicial Watch, who, when he isn’t suing people, complains bitterly about the evils of “frivolous lawsuits.” (Maybe the cognitive dissonance is getting to him; Klayman last week stepped down “to pursue other endeavors.”)
PROS AND CONS
By now, the case against the independent counsel law is so familiar that I hesitate to repeat it. Here are the two principal complaints:
1) 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. The history of the independent counsel’s office is largely a tale of chickenshit prosecutions. Hamilton Jordan was investigated on the dubious premise that he would be stupid enough to snort cocaine while serving as Jimmy Carter’s chief of staff. He was not. Ronald Reagan’s attorney general, Ed Meese, was investigated on the less-dubious premise that he would be stupid enough to file incomplete disclosures of his personal finances. He was not. The investigation of Housing Secretary Samuel Pierce lasted nine years, expiring only one year before Pierce himself, who was never indicted. The most high-minded independent counsel investigation, which probed the Iran-Contra scandal, briefly nailed Col. Oliver North, but his conviction was overturned on appeal. The scandal’s principal impact on North was to transform him into a fabulously successful TV, radio, and print commentator.
2) The law failed to insulate investigations from politics. Prosecutors were selected by a three-judge panel. Since judges aren’t political, there was no danger they would stack the deck against the accused. But of course, many judges are political, few of them more so than Judge David Sentelle, who admitted to discussing the pending selection of a Whitewater independent counsel with Republican Sens. Lauch Faircloth and Jesse Helms of North Carolina shortly before the panel named Starr. Half a year later, Sentelle’s wife was hired to work in Sen. Faircloth’s office.
Lieberman is not unaware of these shortcomings, which is why, when the law was due to expire, he in effect said, “Mend it, don’t end it.” But Lieberman’s proposed reforms failed to persuade many of his colleagues that the mending was worthwhile. He suggested, for example, that a two-year time limit be imposed on independent counsel investigations but added a gigantic loophole allowing “the possibility of extensions for good cause.” Lieberman did nothing to address the Sentelle problem; he simply assumed, against recent experience, that judges were nonpartisan, and left them in charge of naming the independent counsels. In sum, the exercise was a demonstration of Lieberman’s enthusiasm for making meaningless distinctions.
The independent counsel law was first passed in 1978 in reaction to Watergate, and in particular to 1973’s “Saturday Night Massacre,” in which President Nixon fired Watergate special prosecutor Archibald Cox (and collected resignations from Attorney General Elliot Richardson and Richardson’s deputy, William Ruckelshaus, both of whom refused to carry out Nixon’s orders; the deed was eventually performed by Solicitor General Robert Bork). That a president could halt an investigation of his own White House struck Congress as a bad thing. In retrospect, though, the salient point about the Saturday Night Massacre was that it backfired. Cox’s replacement, Leon Jaworski, simply picked up where Cox left off, and Nixon was gone within a year.
Today, Lieberman’s revive-the-independent-counsel-law stance isn’t finding many takers. But many Democrats are calling for the appointment of a special prosecutor. I am not sure even that is worth the bother. Special prosecutors serve at the pleasure of the attorney general, making them the practical equivalent of a Justice Department employee. Why not just give it to the employee? Justice Department lifers, no less than special or independent counsels, have the ability to retaliate against politically motivated suppression of their investigation by leaking to the press. Prosecutorial leaking is not a check on presidential powers that responsible parties are likely to condone.
Indeed, it’s just as illegal as revealing the name of a covert CIA agent! But it’s much easier to defend in the context of maintaining prosecutorial independence than it is in the context of swatting some ex-ambassador who dares to demonstrate that the president is a liar. If John Ashcroft tries to strangle the Plame investigation, I guarantee 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.
Timothy Noah writes the “Chatterbox” column for Slate.