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October 02, 2003

A LOT OF PEOPLE seem to suddenly miss the Independent Counsel law, just as Megan McArdle predicted. Funny, I remember when the very idea of this sort of thing was anathema to the Republic. You'd almost think that people's views on these questions were driven entirely by political concerns.

In The Appearance of Impropriety, (now available in paperback! -- and at an irresistible price! -- makes a great birthday, wedding, or Bar Mitzvah gift!) Peter Morgan and I wrote about these dynamics. (And it was considered a largely pro-Clinton book at the time, which Lanny Davis used in a class he taught on political communication. How things change.) Of course, Ashcroft can appoint a Special Prosecutor, which is not quite the same thing as an Independent Counsel, even though the Independent Counsel law has expired. Should he? Perhaps, though I think the right way to investigate this is to get the journalists involved -- and perhaps Joseph Wilson, Valerie Plame, and George Tenet -- under subpoena and just ask them who said what to whom. Then you can fire, or prosecute, the leaker if it's warranted. You don't need a Special Prosecutor to do that.

UPDATE: Here's the model approach, right here:

James A. Wells, Assistant U.S. Attorney General: Tell you what we're gonna do. We're gonna sit right here and talk about it. Now if you get tired of talking here, Mr. Marshal Elving Patrick there will hand you one of them subpoenees he's got stuck down in his pocket and we'll go downstairs and talk in front of the grand jury. ...Elliot? Jim? ...Fine. All right, Elving, hand whichever one of these fellas you like a subpoenee and we'll go on downstairs and talk in front of the grand jury.

District Attorney James A. Quinn: Gallagher's a government witness.

James A. Wells, Assistant U.S. Attorney General: Wonderful thing, a subpoenee.

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James A. Wells, Assistant U.S. Attorney General: You had a leak? You call what's goin' on around here a leak?! Boy, the last time there was a leak like this, Noah built hisself a boat.

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James A. Wells, Assistant U.S. Attorney General: Now we'll talk all day if you want to. But, come sundown, there's gonna be two things true that ain't true now. One is that the United States Department of Justice is goin' to know what in the good Christ -- e'scuse me, Angie -- is goin' on around here. And the other's I'm gonna have somebody's ass in muh briefcase.

Too bad Wilford Brimley isn't available.

UPDATE: Click "more" below for a piece I wrote for Newsday on the expiration of the Independent Counsel Act, which has at least some relevance to today's issues. And here -- far more timely -- is a lengthy post by Bill Dyer on the legal issues involved. He also suggests Rudy Giuliani as the special prosecutor, should one be appointed.

Sounds good to me. And here's a call for Senate hearings. Just make the journalists testify under oath?

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THE SUN GOES DOWN ON THE STARR AGE

October 24, 1999

BYLINE: Glenn Harlan Reynolds. Glenn Harlan Reynolds is a law professor at the University of Tennessee and co-author of "The Appearance of Impropriety."


JUST AS mopping-up operations went on for several weeks after Lee's surrender to Grant, the years-long independent counsel investigation into White House misconduct under President Bill Clinton isn't really over.

But just as Lee's surrender marked the end of the Civil War, so, too, does Kenneth Starr's return to private practice mark the effective end of the Age of Independent Counsels. True, Starr has for the meantime ceded his office to Robert Ray, a former assistant prosecutor in the protracted investigation of former Agriculture Secretary Mike Espy. But the law allowing for the appointment of independent prosecutors has expired, and hardly anyone wants to see it back. Officeholders, Republicans and Democrats alike, have made that clear.

That so many politicians agree on something perhaps ought to make us suspicious, but in fact the independent counsel statute has racked up an impressive history of abject failure. Forget such elderly embarrassments as the abortive investigation into rumors that Carter White House aide Hamilton Jordan used cocaine at Studio 54. In the last 10 years or so, the various independent counsels have netted little fish while letting big fish get away. Those who believe that independent counsels have often pursued trivialities certainly have plenty of evidence to back them up. The lengthy inquiry into Espy's overcasual attitude toward gifts from industry certainly looked like overkill. Even more so was the prosecution of housing secretary Henry Cisneros for the dubious crime of lying about the amount (not the existence) of payments made to a former mistress. And though the Whitewater prosecution secured several convictions, those involved Arkansans, not the high federal officials, who are the reason for the independent counsel law. Overall, a lot of fleas have been smashed with sledgehammers.

Of course, the record of independent counsels in getting to the bottom of serious problems is not very impressive, either. Lawrence Walsh's six-year, $ 48- million investigation into Iran-Contra-still the champion for duration and expense-overturned many lives but brought no one to justice. Starr's investigation has pretty obviously been a bust. And the most serious charges against the Clinton White House, those involving campaign fund-raising fraud, Chinese influence and possible complicity, in espionage, never resulted in the appointment of an independent counsel at all. All in all, the independent counsel statute seems to live up to the old proverb about the law: that it "erects walls to contain the small, o'er which the large play leapfrog." It is easy, and tempting, to blame these problems on ineptitude, perfidy or corruption. But the real problem lies in the nature of the offenses involved, and the institutional character of prosecution. Offenses that are referred to independent counsels typically involve conspiracies, obstruction of justice and similar crimes. These are offenses that are difficult to prosecute based on extrinsic evidence. Unless a participant is stupid enough to, say, tape-record incriminating conversations, such crimes can usually be unraveled only by getting one of the participants to testify against the others.

Since co-conspirators usually don't testify willingly, it then becomes the task of prosecutors to make them cooperate. That usually means finding some crime with which they can be charged so as to elicit testimony in exchange for immunity or a plea bargain. Thus peripheral figures often find themselves enmeshed in Kafkaesque proceedings.

In the Cisneros prosecution, for example, independent counsel Paul Barrett brought charges against a Lubbock, Tex., couple, the sister and brother-in-law of Cisneros' mistress. The charges: minor misstatements on a mortgage application, which in the eyes of the prosecutor became felony bank fraud. Once the Cisneros prosecution ended with a whimper (he pled guilty to a single misdemeanor count and will serve no jail time), the charges against the couple were dropped. Their only purpose was to coerce testimony against Cisneros.

Such pressure on minor characters is not limited to independent counsels - it is, sadly, a staple of federal prosecution these days in many areas. But ordinary prosecutors face less pressure to leave no stone unturned, and have limited budgets that usually constrain this sort of behavior. Independent counsels have neither the luxury of working in comparative obscurity nor these salutary, pragmatic budget restrictions.

With limited resources, the small fry often cave in the face of this sort of pressure. Political big shots can usually mount a vigorous defense. The result is arbitrariness toward the weak, while the powerful often get off scot free-the opposite of what the law was intended to promote.

The diffuse nature of many ethical crimes such as conspiracy and obstruction of justice also causes frustrated prosecutors to look for something easier to prove. Conspiracy is hard to prove, but improperly filled out forms are right there in black and white. Thus the bureaucratic imperative, in which things that are on paper look more important than things that are not, means that prosecutions allegedly concerning the betrayal of public trust wind up revolving around the question of whether a form was properly filled out. No wonder these prosecutions have done so little to promote public confidence.

Still, something should be done. Most of us - even politicians - agree that today's politics is corrupt, driven by special interest influence and money from political action committees. Some believe that the way to solve this problem is a ban on "soft money," campaign donations that sidestep restrictions on spending in individual campaigns when thet are funneled through national party coffers. But we should be very skeptical. As long as politicians wield so much power over people's lives and companies' fortunes, money will find its way into their coffers despite any regulations. After all, soft money, along with today's most hated campaign donor, the PAC, owes its current, particularly corrupt form, to the last round of campaign finance reform. And it's hard to imagine enforcing a ban on soft money without the same kinds of problems that we have already seen with independent counsels. Reducing government power would be one way to reduce corruption and special interest money, but there seems no great constituency for that, at least in Washington.

Instead, we should take advantage of the very human failings that current campaign finance law has fallen prey to. Since keeping money out of the hands of politicians is impracticable, perhaps we should focus on accountability instead. The best approach might be modeled on a proposal aired in a letter to the online magazine Slate: Allow anyone to donate any amount of money, so long as the recipient and donor both appear in person on C-SPAN, exchanging the money in a white canvas sack clearly labeled with a large dollar sign.

There might be logistical problems with that approach taken literally, but we can come close. In an age when Amazon.com can give me up-to-the-minute figures on which people are buying what books, it surely isn't impossible to have instantaneous disclosures of who is getting what from whom available on the Internet.

This approach would also have the advantage of clarity. Right now, campaign finance laws are so complex that it is easy for politicians to make weaselly "no controlling legal authority" excuses when they are charged with violations.

But under a mandatory-disclosure rule, such obfuscation would no longer work.

You get the money, you disclose how much and from whom. Period.

We might also encourage compliance by treating campaign-law violations as seriously as we treat, say, drunk driving or other garden-variety crimes. With the unfairness of unclear laws removed, we can get tough on violators in a fashion that politicians have always favored when it was aimed at someone else: Impound the cars of those making, or receiving, undisclosed campaign contributions! Three illegal-donation "strikes" and you're "out" - no longer eligible for public office! The death penalty for illegal donation "kingpins"! Well, maybe that last is a bit much. But with today's politics looking more and more like the old Times Square, perhaps it's time to mount a Rudy Giuliani-style renovation campaign.

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The Plame scandal is not about campaign-finance issues, of course, but many of the other issues apply.

And the Wilford Brimley approach seems entirely adequate. Though as Porphyrogenitus emails:

Great scene in a good movie. Gotta love Willford.

Remember, though, that Paul Neuman's character is smiling like a Cheshire cat at the end, because he basically maneuvered the whole thing (Willford knows and his problem with the others is that they are stupid enough to get maneuvered in this way) - so the "victim" is hardly a real victim in any meaningful sense, because this is what they *wanted* - a means to discredit people who dumbly fell into the trap he laid for them, meanwhile masking his real shenanengans.

Flash forward to Wilson & Plame. . . . .

So who's Paul Newman here? Karl Rove?