Thoughts on Independent Counsel
I started in quite favorable to the idea of Special Prosecutor/Independent Counsel concepts – it was a reasonable way to handle things where the government might have to investigate itself. I must say my opinion is changing.
There was the Waco counsel, with whose operation I had some personal experience. They went into coverup mode quickly. I got the message when we attended a deposition of an expert at their office. We were told to stay only in the deposition room or immediately outside, since the rest of their office was off-limits. No problemo. Then they invited the Justice attorneys into their office for some private chats. OK, you got the message as to who were viewed as in-group and who as out-group.
The only prosecution they undertook (despite finding plenty of government perjury and false statements) was the Ass’t US Attorney who had helped to end the coverup, by letting Mike McNulty see the evidence that had been hidden. They got him on a perjury count for not revealing some notes he’d made, as I recall. I think that investigation cost ten or twenty million.
Then there was the Bill Clinton independent counsel. Enough said. Millions spent to investigate an episode of oral sex.
Now there’s the IC on the Plamegate matter. Millions spent with the result that Scooter (how do they get these nicknames?) Libby is indicted for perjury. The N.Y. Times finally picked up on the discovery that, on virtually his first day in office, the IC knew who had tipped off the reports to the fact that Mrs. Wilson was a CIA employee – Richard Armitage, former Deputy Secretary of State, admitted doing it. The IC decided not to charge him. OK, isn’t the IC’s job done at that point? He knows who did it, and it’s not worth charging them.
Instead, the IC goes on, puts a reporter in jail for withholding information, spends months and millions, and eventually charges Libby with perjury and false statements.
UPDATE in light of comments: I'd LOVE it if the law permitted private persons to file criminal actions (as they can, with certain limitations, file civil actions under the False Claims Act -- if they win, the gov't gets the proceeds and they get a finder's fee and atty fees. That was the British procedure, at least in the 18th century and before. The King could issue a "dispensation," sort of like a pardon in advance, but it was a public act that put everyone on notice of what he was doing (and in the case of James II, was a contributing factor in his overthrow). The reason I'd like it is that legislatures would be less likely to pass unduly restrictive laws if they had to worry that they'd be applied to those who had political power, the wealthy, the popular, etc.. As it is, they can pass broad statutes in the confidence these will be applied only to those without power or those who are unpopular (the statutes on electoral procedures are a great example, but there are many others).