Scooter Libby – and Special Prosecutors

One comment on the Scooter Libby situation, though it is more of a comment on the special prosecutor in Mr. Libby’s case and the concept of special prosecutors than on Mr. Libby. (For more comments on this, see Dorothy Rabinowitz’s article in last Friday’s Wall Street Journal here and Tom Maguire’s "Just One Minute" blog here.)

The problem with special prosecutors is that they are effectively unaccountable to anybody but themselves. Special prosecutors can all too easily result in what Lord Acton warned us about: "Power tends to corrupt; absolute power corrupts absolutely."

For a country that prides itself on having a government of laws, not of men, special prosecutors are anomaly. One cannot but wonder whether the situations they are appointed to deal with are really bigger problems than the unfettered power of the special prosecutors themselves. Why is it inherent that a Scooter Libby allegedly lying to a grand jury is a bigger problem than a special prosecutor on a mission to do what he thinks is right, with no effective limits on him other than his own self-control?

Given some of the special prosecutors during President Clinton’s term, I would think Democrats would agree with this, though it appears that in the Libby case they have let politics trump principle. (Self-justifying note: I was opposed to the original special prosecutor statute that was passed after Watergate and think the country probably would have been better off without the special prosecutors investigating the Clintons.)

However, if we must have special prosecutors, we need to at least have an established procedure for appointing them, instead of doing it on an ad hoc basis, as was done with Patrick Fitzgerald. With a regular procedure for appointing special prosecutors, there is at least a chance we can establish some kind of institutional controls and limits on them. While it is not easy to do so (and may not be practically possible), it is even harder to effectively set limits if each special prosecutor gets his own rules, thrown together in a rush because of a need to act without time to think.

It appears there were no effective limits on Patrick Fitzgerald. Because of recusals in the Justice Department and the politics of the situation, Mr. Fitzgerald was given almost unfettered freedom to do whatever he wanted. Mr. Fitzgerald’s crusade to convict Scooter Libby, perhaps because of a view Mr. Fitzgerald has about anything that could be viewed as perjury, continued even though there was no underlying crime and even though Mr. Fitzgerald knew from the very beginning who told Robert Novak that Joseph Wilson’s wife worked for the CIA (which was the question he was originally appointed to investigate). It is perhaps a prime example of what can go wrong when a special prosecutor has no limits.

A final thought: One wonders how those Democrats cheering on Mr. Fitzgerald would have felt about him if he had taken his crusade against perjury to an investigation of some of the more interesting things Bill Clinton said under oath.