Do We Really Need A Special Prosecutor?

Special Counsel's Value Is Upheld
Analysts Praise Probe's Autonomy

By Charles Lane
Washington Post Staff Writer
Sunday, October 30, 2005; Page A14

Whether or not special counsel Patrick J. Fitzgerald wins a conviction against former vice presidential adviser I. Lewis "Scooter" Libby, legal analysts say he already may have proved what many once doubted: that the Justice Department can deal credibly with allegations of White House wrongdoing.

The CIA leak case in the Bush White House is the first high-level scandal since 1999, when the federal law that had authorized past independent counsel investigations had been allowed to lapse because of frustration by both Republicans and Democrats with past inquiries' cost, length and lack of accountability.

But, the analysts say, Fitzgerald's investigation has maintained its focus, there have been no leaks from his grand jury and he has shown restraint by indicting just one person so far -- declining even to name publicly other people he might have targeted. The main reason his 22-month investigation has gone on so long is that he spent months in a related court fight over the right to question reporters about their confidential sources.

Fitzgerald's appointment "eliminated the risks of the old independent counsel statute, and it's worked just beautifully," said John Barrett, a professor of law at St. John's University who served as a senior aide to Iran-contra independent counsel Lawrence E. Walsh for five years. "It looks like a traditional, responsible, very aggressive but professional prosecutor's work."

The 1978 independent counsel law was enacted as a response to the 1973 "Saturday Night Massacre," in which President Richard Nixon ordered the firing of Archibald Cox, a Watergate special prosecutor who had been appointed by his own attorney general. That experience created a lasting concern about conflicts of interest within the executive branch.

Under the law, which was renewed every five years in slightly different versions, the independent counsel was appointed by a three-judge panel that was itself selected by the chief justice of the United States. The law survived a Supreme Court challenge from opponents who saw it as creating an unaccountable, fourth branch of government.

But after the Republican administration of President Ronald Reagan was bruised by Walsh's nearly seven-year investigation, and the administration of Democrat Bill Clinton was battered by Kenneth Starr's probe, Congress let the law expire in 1999.

And a damn good thing too. I do not believe we need to have "Special Prosecutors" fishing around for crimes which appear to have been created by the investigation itself. If they need to investigate a crime, the prosecutor needs to have a narrow scope of investigation focused only on the crime originally being investigated. As much as I dislike the fact that Louis Libby seems to have perjured himself in the Plame investigation, I am uncomfortable with the fact that the perjury came about due to the investigation and had nothing whatsoever to do with the original crime. This will lead to the criminalization of everything. Not good.

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