TruthOut: No Special Prosecutor

[denem]

A Truthout OP by Elizabeth de la Vega, a former federal prosecutor arguing strongly against the "black hole" appointment of an independent counsel.

First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.

What is it? Well, for starters, there is - under currently available US law - no such thing as a truly independent prosecutor. There has not been since 1999, when the independent counsel statute expired. Accordingly, regardless of the title given this individual - and whether she were tapped from inside or outside the Justice Department - this appointee would, at a minimum, be required to follow internal DOJ policies and her delegated authority could be revoked at any time. (The regulations that authorize appointing a non-DOJ attorney as "special counsel" - found at 28 C.F.R. Part 600 et. seq - actually make possible substantially more attorney general oversight into prosecutorial decisions.)

Under existing federal law, in other words, the notion of a special prosecutor who would be entirely free from political and institutional influence is illusory. Given that fact - and that it is ordinarily an extremely dumb, not to mention unethical, idea to announce investigations - when an administration does announce that it is naming a "special counsel" of any sort, it is largely a public-relations maneuver. The president thereby appears to be committed to the rule of law, but is, in fact, parking an extremely inconvenient problem in a remote and inaccessible lot.

Once this happens, all who wish to avoid the issue have a ready excuse. The president can refuse to comment because there is an ongoing criminal investigation. (Remember Bush's press person, Scott McClennan?) And members of Congress from either party can look the other way, because - again - there is an ongoing criminal investigation. It's a perfect dodge....

If a special prosecutor were appointed today, what we would have tomorrow would be the very public initiation of a federal grand jury investigation. But that is all we would have. At the same time, however, we will have likely ensured that there will be no public congressional hearings for years to come. Potential targets or subjects who might previously have felt comfortable enough to speak publicly and further incriminate themselves will clam up. Because of the stringent secrecy rules that govern grand jury proceedings - and prosecutors' justifiable concern about violating them - information that was previously public may be transformed into secret grand jury material.

More:
http://www.truthout.org/042009R

[Hissyspit]

1. Again, David Swanson's repsonse to his friend Elisabeth de la Vega:

Via Mark Crispin Miller's newsgroup:

Response to Elizabeth de la Vega: Disagreement with a Friend and a Hero

By David Swanson

1. If we do not extend the statutes of limitations, the careful and
considered delay will be immunity

2. The Senate as a whole will never ever approve any useful
investigation except in committees, but
it might convict following an impeachment that changes public awareness

3. Congressional hearings produce relatively little

4. Congress should extend the statutes of limitations, bust the media
monopolies to produce more reporting, and reissue and enforce the
outstanding subpoenas into which lots of careful work went over the
past 2 years

5. Leahy joined the DOJ in pushing a commission as a substitute, not
as a first step, and anything
like that begun before a special prosecutor is begun will be treated
as a substitute

6. Impeaching Bybee should begin at once

7. A House select committee looking into restoring Congressional
power and restricting
presidential should begin at once or after a prosecution begins, but
Conyers' or Leahy's proposal
for a commission created by both houses will not go anywhere.

8. House and Senate committees should hold hearings, including to
reissue all the outstanding subpeonas.

9. I just don't want a hearing begun that is seen as a substitute for
enforcing laws, and I don't see
an argument for delaying enforcing laws.

10. Betsy knows the law and means well and I'm open to being
convinced by her, but haven't been yet. And I won't be unless the
problem of statutes of limitations is addressed at a minimum.