But that does not mean Republicans should refrain from putting this shameful administration performance under the public spotlight. And that’s where McCain and Graham come in. They want a special counsel, independent of the administration and it Justice Department: Some bipartisan eminence, much like themselves, such as the ostentatiously bipartisan former Utah Senator Bob Bennett, who — since being run out of Dodge by the Tea Party — is ensconced at the Bipartisan Policy Center and, according to McCain and Graham, “enjoys bipartisan respect.” This was Washington 101, meaning: exactly the wrong move. No wonder Holder has decided to (sorta) accommodate the senators.
There are a number of reasons why calling for a special counsel is foolish. I’ll just address the top two. First, once a criminal investigation is officially opened, all the public flow of information stops. The Justice Department will now have a legitimate basis to tell Congress and the media that criminal investigations are secret — particularly once a grand jury is impaneled, subpoenas start being issued, and investigators start conducting interviews. Congress will also be stonewalled by other potential sources of information, who will tell staffers that, on the advice of counsel, they can neither comment on matters under investigation nor share any relevant documentary information. We, the public, will hear nothing more about the case until Holder’s handpicked team is good and ready to tell us.
Leak investigations rarely go anywhere. The most direct route to the relevant evidence is to subpoena the reporters, which investigators — guided by DOJ guidelines and First Amendment jurisprudence — tend to resist until all other possible sources of information have been exhausted. If we ever got to that point, it would take weeks, if not months. And then, in the event the reporters are subpoenaed (possible, though I wouldn’t hold my breath), the Times will tie the prosecutors up for weeks or months of litigation over the subpoenas, after which, even if ordered to testify, the reporters will refuse, even if that means going into contempt. The melodrama, if permitted to play out to its full extent, would take us long past the November election — which is exactly what the administration wants.
The other reason that screaming for a special counsel is dumb is that special counsels are unconstitutional — for the reasons outlined by Justice Scalia, whose brilliant Morrison v. Olson dissent has repeatedly proved prescient since he wrote it in 1988. Prosecution is an executive responsibility, and the Constitution vests all executive power in the president. If the prosecutor appointed is not independent of the executive branch, he cannot investigate credibly; but if he is independent of the executive branch, he cannot investigate legitimately. And the Constitution aside, the institution of the special counsel (or independent prosecutor) has been a catastrophe, dogging administrations of both parties, substantially undermining their capacity to govern.
Naturally, Holder is not going to let what happened to Reagan, Bush 41, Clinton, and Bush 43 happen to Obama. He is assigning the investigation to two sitting U.S. attorneys: Ronald C. Machen of the District of Columbia, who was appointed by Obama and whose history includes some high-profile public corruption prosecutions and … a number of donations to Obama’s campaigns; and Rod J. Rosenstein of the District of Maryland, who was appointed by George W. Bush. Rosenstein is a long-time DOJ hand who enjoys — what else? — bipartisan respect, having served as a top aide in the Clinton Justice Department. Rosenstein’s resume includes many public integrity investigations and a prior stint as an independent counsel — during which he found no basis to prosecute Clinton White House officials who had obtained FBI files. To help get to the bottom of the mess and ensure the safe-keeping of classified information, Messrs. Machen and Rosenstein will be assisted by lawyers from DOJ’s own National Security Division.
That is, everyone on the team reports to Holder and, ultimately, Obama — they are not independent. The attorney general has shrewdly moved with apparent speed and responsiveness to address congressional concerns. He will be portrayed as having assembled a team of well-respected investigators who will home in on corruption while being meticulously careful about the top-secret intelligence that must be sifted through and the First Amendment concerns attendant to leak cases. The existence of the well publicized investigation will stop the public flow of information, and the team will get back to you by, say, late 2013 or early 2014, with what they’ve discovered. Maybe we’ll still remember what they were investigating … but I doubt it.
From a public interest standpoint, prosecuting the leakers is of minimal importance. We already know, in general, where the leaks came from (the Obama administration) and why national defense information was disclosed to the press (to burnish the president’s image as a decisive commander-in-chief as he heads into a tough reelection campaign stretch-run). If someone really deserved prosecution, that can always be done later — there’s a five-year statute of limitations on most federal crimes.
The salient matter at the moment is political accountability, not legal retribution. This transgression needs to be subjected to intense public scrutiny, as only Congress can do. What this situation needs right now is congressional hearings and political pressure to draw out the officials who gave information to the Times and to demonstrate the extent to which national security has been subordinated to the Obama reelection effort. Yes, the Obama administration would have stonewalled Congress, but that would only call more public attention to what the administration has done and how indefensible it is.
Instead, with their “special counsel” folly, Republicans have given the administration the means to throw the curtain over this debacle. They’ve also enabled Holder, with the help he’ll get from the press, to portray the administration as taking swift, decisive action to root out leakers — even though the reality is that there will be nothing swift or decisive about it.
Can’t anybody here play this game?