A Partial Solution to the Special Counsel ProblemMike Rappaport

Whatever one thinks about Scooter Libby’s guilt and his jail sentence, it is hard to be confident that Patrick Fitzgerald, the special prosecutor in the case, performed properly.  Most importantly, Fitzgerald knew the identity of the person who disclosed the name of Valerie Plame to Robert Novak — Richard Armitage — relatively early on in the investigation.  Thus, Fitzgerald should explain why he spent so much time going after Scooter Libby, since (even if he doubted Scooter Libby’s story) he knew that Libby was not covering up that he was the original source of the information to Novak. 

Some years ago, I wrote a paper arguing that instead of Independent Counsels, Congress should investigate executive wrongdoing.  I had a proposal that would address the main objections — lack of congressional power and the  likelihood of partisans running the investigation — but it does not seem likely that this proposal, which I still endorse, will be accepted.  For those interested, see here.

It seems we are stuck with the less problematic special counsels, who are appointed and removable by the executive branch.  But the Fitzgerald case shows that the problems of such counsels — that they have incentives to spend too much time and effort obtaining convictions, even if the alleged crimes are tangential to their investigation — are still around.  Could we improve the special counsel arrangement?  Here is my proposal for doing so.

First, the appointment of Fitzgerald specifically indicated that it was not limited by 28CFR 600, which requires special counsels to conform to Department of Justice prosecutorial guidelines.  I don’t know why this authority was granted, but it seems to be a problem, and should not be allowed in the future.   

Second, how can we change the incentives for the special counsel?  One way would be to appoint an supervisory official, who is as independent as the special counsel.  The supervisory official would have responsibility to oversee the investigation and would be specifically charged with ensuring that the prosecutorial decisions were no stricter than those that are mide in ordinary cases not involving a special counsel.  The prosecutorial  decisions would be made by the special counsel, who would be required to keep the supervisory official fully informed.  The supervisory official would have authority, however, to issue orders when he concludes that they are necessary to ensure that the prosecution operates in the same manner as one not involving a special prosecutor.  In other words, the supervisory official can step in when the special counsel seems to be deviating from the normal standards for prosecuting. 

This arrangement would place a real check on excesses by the special counsel.  It would involve a single individual whose job it would be to place limits on the prosecution and in particular to make sure that special counsels do not spend excessive effort going after their targets.   

Finally, a special counsel should have to issue reports explaining his decisions.  This creates accountability.  It is often said that reports can harm the reputation of persons who are not indicted, but the real problem from special counsels is that they prosecute too often, so reports would help there.  If people believe that harming innocent reputations is a problem,  and I don’t since a report provides useful information, one could always eliminate the reports requirement in cases where no indictment was sought.