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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).
6 Comments
I was discussing this problem earlier and I cant come up with a solution to the problem of punishing government wrongdoing when the wrongdoers arent elected officials.
Independent Prosecutors/Counsels etc seem to end up becoming political tools. Since those in power rarely have an interest in punishing the corrupt (especially when they are loyal and perform some valuable but unsavory function).
How about this idea? Would it be possible to have criminal suits in which the plaintiff was a civilian and the defendant was a government wrongdoer who had harmed that plaintiff in some way? I understand the idea of criminal laws being crimes against "the state" but why couldnt a victim bring a criminal cause of action on behalf of "the People of Florida" or something? Also, isnt it often harmful to our adversarial system to always have government wrongdoers being opposed by the guys from their team, often their long-time colleages?
The problem with ICs is that they're not really independent: They're government-appointed. The function they're supposed to perform *should,* in my view, be performed by grand juries. Since grand juries are composed of Joe Citizen and are essentially unaccountable to anyone, they wouldn't seem as susceptible to outside influence as ICs. Sadly, the courts seem to be doing their best to limit the power of grand juries (can't have regular people wielding power, fer Chrissakes -- they might indict someone important!), and to otherwise reduce them to the status of mushrooms, i.e., kept in the dark and fed bullshit (or rather, fed only what the prosecutor wants them to see). And of course most grand jurors -- like most citizens -- have all the initiative of the ham sandwich that they're often said to be ready to indict.
God help 'em if I ever get appointed to a grand jury. Who's "them"? Oh, you name it. Pretty much any civilian who gets a paycheck from the federal government, to start with. ;-)
P.S.: Google "runaway grand jury" for an idea of the fun grand jurors can have when they get their panties in a bunch and decided to strike out on their own.
I'm referring to the problematic situation where the police are the offenders and the district attorneys are not prosecuting them. And since none of them ever stand for reelection, the interests of the People are ignored by the criminal justice system.
You might remember a "Scooter" who played for the NY Yankees...
I think one of the lmost shameful independent counsel incidents was the one that investigated Ray Donovan. Siccing an independent counsel on someone is a good way to ruin his life.
At the end of the day, Donovan was exonerated--broke, jobless, but exonerated.