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How the Bush Administration Is Flouting the Current Special Counsel Regulations,
And Why the Independent Counsel Law May Not Have Been Such a Bad Idea After All


Friday, Feb. 11, 2005

Recently, National Public Radio's "Justice Talking" program asked former Independent Counsel (IC) Kenneth Starr, and yours truly, to discuss the defunct independent counsel law.

Starr is also a former Solicitor General of the United States, and a former judge on the U.S. Court of Appeals for the District of Columbia. Currently, he is the Dean of the Pepperdine University School of Law - a position he plainly enjoys a great deal. In addition, he continues to consult and assist in major litigation, thus keeping his considerable legal talents well honed.

Our discussion occurred on the Pepperdine campus before a live audience.

The show -- hosted by Margot Adler - will soon air.

For me, it was an enlightening session -- but not in any manner I had expected, as I will explain.

Why the Independent Counsel Law Was Allowed to Expire

To begin, some background is in order. The Independent Counsel law was enacted by Congress in 1978, in the aftermath of Watergate. By creating a type of prosecutor who would be independent of the Department of Justice, Congress sought to assure Americans that high level officials could be investigated, and, if necessary, prosecuted, free of any conflicts of interest.

This law was re-enacted on three occasions (with only slight modifications): 1983, 1987, and 1994. In renewing the law in 1994, Congress ignored Judge Scalia's prescient dissent in Morrison v. Olson, which anticipated how the law might be abused and argued that the law was unconstitutional. (Judge Starr agrees with Scalia on this point. Indeed, he has testified against the law.)

The law expired on June 30, 1999. By then, Republicans and Democrats alike concluded that it was an experiment that had not worked; so did the Justice Department, which recommended that it be allowed to expire.

The law had several fatal problems. First, it had a hair trigger: It was too easily invoked. As a result, over $200 million was spent on sundry inquiries with nominal results.

Second, it failed to serve its purpose of making the public more confident about the government; it was making the public more cynical instead. The public witnessed how the IC laws' operation was tinged throughout with politics - the very taint the law had sought to remove.

Third, it seemed to invite harassment: Some independent counsels treated high government officials like low-life Mafia figures -- investigating them endlessly until some violation was found, or until a violation (in the form of a cover-up, or a false, misleading, or incomplete statement) occurred as a result of the Independent Counsel's investigation.

One Alternative Future: What If Judge Starr Had Never Become an IC?

It occurred to me during our discussion that if Ken Starr had not taken the IC post, when asked by the special court that selects these prosecutors, there is little doubt that today he would be on President George Bush's short list as a potential nominee for the Supreme Court.

Of course, Starr might still be on the short list anyway, but it's very unlikely. There are other potential conservative nominees who share Starr's impressive credentials and ability, but who have not been a target of intense Democratic wrath.

Such asperity may be the inevitable fate of ICs who investigate presidents. There have been only two: Starr, who investigated President Clinton's Whitewater investment and his relationship with Monica Lewinsky, and Lawrence Walsh. Walsh, also a former federal judge, investigated President Reagan and Vice President George H. W. Bush and several of their high level aides regarding the Iran Contra scandal.

Both Walsh and Starr have impeccable reputations and great ability. Yet, as ICs, both experienced sustained attacks on their character, probity and wisdom -- by defenders of the presidents they were investigating.

In hindsight, the venom shouldn't have been surprising; Presidents, and their surrogates, are going to defend themselves more than zealously. (I know a little about this, from the Nixon Administration, and it is not pleasant. Thus, I have a certain empathy for those who seek to unravel wrongs.)

Another Alternative Future: What if There Were a Valerie Plame IC Investigation?

Besides contemplating what might have happened had Kenneth Starr declined the IC position, I also thought about what the world would look like if the IC law still existed.

Possibly, the whole "weapons of mass destruction" affair might have given rise to an IC investigation. And certainly the Valerie Plame investigation - in which sources identified by Robert Novak as two senior administration officials leaked her identity as a CIA agent -- would be run by an IC. (For more on this ongoing investigation, see my most recent column on the topic for this site.)

Instead, the Plame matter is being handled by a special counsel. When the IC law expired in 1999, the Justice Department recognized that it still had to deal with conflicts of interest. To do so, it drafted extensive regulations to govern the selection, operations, and funding of "special counsels."

Unfortunately, the Bush Administration is ignoring those regulations. It is entitled to repeal them - but it ought not simply to pretend they do not exist.

The regulations state: "The Special Counsel shall be selected from outside the United States Government." However, the Plame Special Counsel, Patrick Fitzgerald, was - and still is - the U.S. Attorney from the Northern District of Illinois.

The regulations also state that "Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation." But Fitzgerald remains in his U.S. Attorney position - a position that is typically a very demanding full-time job.

Meanwhile, it's not clear if Fitzgerald's funding is proper, either. On September 30, 2004, the General Accounting Office (GAO), in the course of a routine audit, discovered that he is being funded by the same appropriation used to fund IC's. (There is still one IC in existence, who has been in business since 1995, and seems unable to complete his final report). The GAO Report claims that it is all right for Fitzgerald to draw on the IC law funds, for he was selected under "other law" which was within that appropriation - but this seems like fancy legal footwork.

The result of all this is that, as a result of a breach of regulations, Patrick Fitzgerald serves in an unsupervised position with authority equal to that of the Attorney General himself - yet he is not subject to the restraints that fall upon an Attorney General. (Presumably, Alberto Gonzales will recuse himself from this matter, just as John Ashcroft did - for reasons I discussed in a prior column.)

Bush's Justice Department Is Not Playing By Its Own Rules

Those Justice Department regulations had a purpose, and it was to avoid conflicts of interest and divided loyalties. Now, we are stuck with both.

An ambitious Republican U.S. Attorney like Patrick Fitzgerald was an especially poor choice for this position. As the regulations stated, an acceptable choice would have been someone truly outside the federal government.

While some local U.S. Attorney's Offices may be somewhat independent of the Department of Justice, they are hardly outside it; indeed, they typically consult the DOJ's own manual on policy questions. As a Justice Department employee, Fitzgerald had a conflict of interest - just as Ashcroft did. Yet unlike Ashcroft, he failed to recuse himself.

In addition, it disserves both the American public in general, and the citizens of the Northern District of Illinois in particular, for Patrick Fitzgerald to moonlight in both of these jobs. There's a reason the regulations anticipated that some special counsel positions might be full-time employment - and this ought to be one of them.

Few matters are more serious than the exposure of a CIA agent's identity - a revelation that puts both the agent and, potentially, many others in jeopardy of life and limb. When the exposure seems to be an act of political revenge, the matter is even more grave. And when the revenge is reportedly taken by two (or more) senior Administration officials, the issue is even weightier. This matter deserves Fitzgerald's full attention.

If the IC law had still been in force, this would not have occurred. The problem, then, would not have been investigative laxness; if anything, ICs were overzealous. Moreover, those ICs who investigated high-level officials with respect to serious charges - Walsh is one example - burned the midnight oil doing so.

If an IC were on the job, then, some money might be being wasted, and a bit of overzealousness might be observed. But are we really worried about overzealousness toward those who willfully outed a CIA agent - an act that is federal crime, as I have discussed in a previous column? Lives, and potentially lifesaving intelligence, are at stake.

Moreover, if an IC were on the job, we would know by now who, exactly, leaked Plame's identity. Novak apparently is not a target; other reporters (with peripheral knowledge) have been ordered to testify. Meanwhile, Administration officials have -reportedly, at least - been told to cooperate.

So why isn't the case solved? Could it be because Fitzgerald - burdened with ambition and reluctant to bite the hand that still feeds him - doesn't want to solve it?

It almost makes you nostalgic for the old IC law, doesn't it?

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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