The Call for a Special Counsel

by emptywheel

As Christy has reported, Senators Schumer, DiFi, Feingold, and Whitehouse have called on Paul Clement to appoint a Special Counsel. I'm underwhelmed with the idea, for several reasons. First, Clement is clerkship spawn of Laurence Silberman and Antonin Scalia, both of whom have well-earned reputations for putting their partisan loyalties (and duck hunting hobbies) above their commitment to independent justice. So what's to stop Clement from appointing Ken Starr, who I'm sure could declare Alberto Gonzales innocent before the end of August's recess?

There is, of course, the outside chance that Clement would do the right thing and appoint someone who could bring some independence to the investigation. To offer a ray of support for the suggestion, Clement is many smart people's first choice to be the answer to this Sidney Blumenthal puzzle.

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration's policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we've done has been illegal." He adds, "Not everything has been ultra vires" -- a legal term referring to actions beyond the law.

At the time, I voted for Fred Fielding, but I think Clement a very like candidate. So if he is, indeed, willing to publicly declare the Administration to be breaking the law, then maybe he'd pick someone competent. And heck--DC's a small place, maybe the four Senators calling on Clement know this.

But aside from the question of whether Clement will pick someone competent, I have these two complaints. First, the Senators endorse the ongoing IG/OPR investigation of the USA firings.

While we believe the investigations of the Inspector General and Office of Professional Responsibility (OPR) are important and must continue, we believe the question of the Attorney General's truthfulness in testimony before Congress is sufficiently important to merit the appointment of a special counsel, and sufficiently distinct from internal Department matters the Inspector General and OPR are investigating.

Now, I haven't checked back this week to see whether Gonzales grated the IG the ability to investigate lawyers. But as of last week, there was a critical flaw to the IG investigation, which was that the IG side, which is the only office that can bring charges, was not permitted to investigate lawyers' conduct. And as I pointed out earlier this week, DOJ has played Lucy with its investigatory football so many times that we simply can't consider it serious anymore. Now, maybe the IG's office has since been given the authority to investigate lawyers, maybe the Senators know that the IG's office is making progress. Still, I think this comment cedes too much investigatory authority.

But what makes me really nuts is the proposed scope of this investigation:

The scope of the special counsel's jurisdiction should include the veracity of the Attorney General's testimony before Congress related to issues include the replacement and removal of U.S. Attorneys, the implementation of the PATRIOT Act's provisions relating to U.S. Attorneys, and the authorization for the NSA wiretapping program. It should examine whether misleading statements have been made to Congress and the public, and whether potential charges should be filed involving obstruction of justice, perjury, and false statements.

Did no one ever explain to the good Senators the problems with the passive voice? "Whether misleading statements have been made"? Ferchrissake, people! If you're trying to propose a narrowly-scoped investigation, you write, "It should explain whether Alberto Gonzales made misleading or false statements to Congress and the public." If you suspect we'll find other liars in this investigation, then say so. But don't--please don't--hide behind that passive construction!!! This is the English language here, not some bed you should hide under!

And while you're at it, specify "both before and after he became Attorney General," since he told some stretchers in his confirmation hearing and surely told some brazen lies while White House counsel. Again, a narrow scope is always nice when you're proposing a Special Counsel, but be explicit here.

But there are still problems with this scope. The Senators kind of mush obstruction of justice in there, which relates generally to Gonzales' brazen lies, but specifically to Gonzales' attempt to coach Monica Goodling's testimony. If you want our Special Counsel to investigate that, please say so.

Finally, though, the scope is just too narrow. There's nothing in here, for example, about Gonzales' endorsement of Presidential Records Act violations. Nothing about the endorsement of torture (one of Gonzales' stretchers at his confirmation hearing). There's just too much left out here, that needs to be investigated by someone independent.

Though perhaps I'm misreading the strategy here. Perhaps the four Senators only submitted this request to force Clement to say no, which would provide the perfect justification for moving to impeachment proceedings in the House. In any case, though, the four Senators have provided Clement with an opportunity to take the Ken Starr get-out-of-jail-free route. And even a legitimate Special Counsel will effectively end there, anyway, as the Libby example proves.

Argh. I guess saying I am underwhelmed is not strong enough language.

Comments

[albert fall]

Special counsel chosen by DOJ? Like Ken Starr?

Dems seem to think that Bush has run out of GOP whores willing to do a legal whitewash.

I happen to think the supply of GOP whores in the legal profession is vast beyond measure.

[lizard]

I am continuously surprised that this administration continues to get people to do it's unlawful bidding even at serious personal risk. Do these people not know that when the white house turns over in the next election, there will no longer be a legal impediment to punishing their behavior? THe list of people Bush has to pardon to keep out of jail after his administration is probably in the hundreds. If Clement decides to refuse to appoint a special investigator, and gives disingenuous grounds for that refusal, he is putting his license to practice law in jeapordy, but exposing himself to obstruction of justice charges. There is NO WAY Gonzales can hope to stay out of jail except by presidential pardon. Clement may be a Scalia lapdog, but Scalia can't pardon. He just might do the right thing out of pure self-interest. I hope.

[Sojourner]

Marcy, I just have to wonder if maybe this is to take Alberto out of the game and keep him occupied while they do some work on other issues -- like Cheney. At this point, I think AGAG is small potatoes compared to some other characters involved in this sordid mess.

I keep thinking about Senator Whitehouse's revealing memo that made AGAG look so somber. Could that have been a shot across the bow? I just have to believe that the good senator has more in his arsenal...

Like you, I get decidedly underwhelmed with what is going on -- and extremely frustrated that things are not happening much more quickly. Let's keep the faith, though... I tell myself that about a million times a day ;-)

[lysias]

I thought Gonzales said at the hearing this week that the decision whether or not to appoint a special counsel would belong to the Deputy Attorney General. That's still Paul McNulty, isn't it?

[bmaz]

It IS to underwhelming. Anything short of laughing this tripe out of the ballpark is to underwhelming. Anything tied to the DOJ and it's leadership is no good for the exact reasons I alluded to on the earlier thread. Furthermore, the scope cannot be limited like has been contemplated by Schumer or whoever set that language. In fact, EW, it cannot be limited to even what you propose; it has to go where it leads. This discussion, so far, is effectively playing right into their hands in terms of running out the clock. If a very narrow investigation of Gonzales is implemented, in popular lore, MSM, pundits, the Goopers and everybody else is going to mentally put the whole of the wrongs on the shoulders of a little, narrow, pissant investigation and it will be the shiny, sparkly object that draws focus away from the big picture. This is no good in any iteration.

[Woodhall Hollow]

This is a big fat game of chicken.

I am thinking that Clement will be ordered by Bush to refuse the Senator's request. Junta shills will be paraded out to call it "petty theatrics." (this tack was signalled yesterday, I believe, during Snow's press conference) And congress will be forced, by Bush, to really decide whether or not they have the cajones to file articles of impeachment--for obstruction of justice and other high crimes and misdemeanors.

But I do think there is some determination among some, to go through with this. I am particularly curious about Spector's "threats" to Roberts and Alito regarding their confirmation testimony wrt to precedent. Spector may be a snake, but he is a smart one, and he may be more concerned about his own skin and legacy than he is about Bush and the GOP. And old enough to know that if Bush gets away with establishing a virtually unhindered theory of unitary executive in the federal courts, it will come back to bit the GOP (and the country) in the very near future, in which it seems likely that the GOP will be totally eclipsed by a Democratic majority in 2 of the 3 branches. Of course, Bush could care less about any of this--this is all about HIM, and HIM getting to do what he wants to do just because he wants to.

[radiofreewill]

If a Special Counsel is named to investigate perjury before Congress by the Attorney General, I don't see how Gonzo can stay in his job?

What are the DoJ rules regarding Gonzo's holding his office while the target of a perjury investigation?

[Gary]

lysias, I think it would have been McNulty, but he's tainted by his involvement, so it goes to Clement to appoint.

[emptywheel]

lysias

Clement is overseeing US Purge after Gonzales recused himself (though that didn't stop Clement from writing an opinion defending the WH).

Gonzales made a mistake, though, in saying that Clement also oversees the Plame investigation--that's David Margolis.

With GOnzales recused of every real issue in his department, of course, it's probably hard to figure out who is in charge where.

[bmaz]

I rarely do this here, because the regulars are so attentive. With the thought that others may be coming by this post without having read previous posts and comments, I am going to EPU (repost) something from a couple of threads back:

The problem I see with a special counsel is exactly what we just went through on the Libby sentencing. If the special counsel has anything to do whatsoever with the DOJ, it just doesn't work from an appearance of impropriety standpoint. And if you think there were questions about Fitz having to much independence and authority; jiminy can you imagine the screams that would be attendant to the authority and independence that would be necessary for a special counsel against Gonzales? I just don't see how it could be run as an adjunct to the DOJ. The other option is having it run off a Congressional branch; either the House or Senate. But the Republicans have made clear they are for party over country and that few of them, if any, will splinter off to side with common sense, reality and constitutional justice. The net result then is that it is a purely political exercise; but if that is the result anyway, why not go ahead and make it an impeachment investigation. Everybody is fearfully and cowardly tapdancing around the pinhead of timidity. I know I am a broken record (digital loop in this day and age I guess), but there is really only one thing that makes sense and, by chance, it is the age old remedy provided exactly for this.

[tekel]

Ha ha, even better than Ken Starr- they should get Bork.

[Davis X. Machina]

What are the DoJ rules regarding Gonzo's holding his office while the target of a perjury investigation?

There are none. A cabinet secretary serves at the pleasure of the president subject to impeachment by Congress.

[big brother]

Hello Emptyy Wheels
The dems strategy seems to be comity to get a few more repubs on board so they can go forward with lege agenda. That ship is sunk after the filibuster and veto threats. Time to circumvent the stacked judiciary with Impeachment. MSM has to cover the televised Impeachment hearings and the cat will finally be out of the bag. AS T.Jefferson pointed out in 1801 an informed electorate is needed for democratic process to work. The job before us is to get out the facts for the We the People which is the House's responsibility. See mimikatz comments on Impeachment. It is the constitutional process that will not be obstructed. A clear statement to executive and judiciary that this will never again be tolerated even though big money buys a lot.

[Mauimom]

Ha ha, even better than Ken Starr- they should get Bork.

I wonder how many Regent University Law School twinkies are looking for their next important assignment?

[big brother]

The dems strategy seems to be comity to get a few more repubs on board so they can go forward with lege agenda. That ship is sunk after the filibuster and veto threats. Time to circumvent the stacked judiciary with Impeachment. MSM has to cover the televised Impeachment hearings and the cat will finally be out of the bag. AS T.Jefferson pointed out in 1801 an informed electorate is needed for democratic process to work. The job before us is to get out the facts for the We the People which is the House's responsibility. See mimikatz comments on Impeachment. It is the constitutional process that will not be obstructed. A clear statement to executive and judiciary that this will never again be tolerated even though big money buys a lot.

[albert fall]

Bush ordering no special counsel is best case scenario, as it places impeachment on the high moral ground, and prevents a hack special counsel from running out the clock.

Bush's risk from his point of view is that a special counsel might actually not take orders from the WH--he needs someone who is not such a complete and obvious administration whore that they are discredited on Day One, but will play by WH rules.

[looseheadprop]

Clement is not reputed to be a dope. IF, if, if he agreed to do such an appointment, he knows he would have to pick someone of stature.

Someone with major porsecutorial chops. There are few superstars left out there that don't have some kind of conflict of interst or other.

Exception, Chuck Schumer's constituent, former USA SDNY David Kelley.

Kelley sucessfully prosecuted the first World Trade Center bombing, co-founded the SDNY anti-terrorism unit with PatFitz and was recommended to fill the slot at SDNY by Comey when Comey left that job to become DAG.

Kelley recently completed a "special presecutor" gig on behalf of NYS Gov. Elliot SPitzer investiagting allegations of wrongdoing by NYS Comptroller Hevesi.

Kelley's got the prosecutorial chops, the street cred, and enough name recognition on the Hill to COMMAND respect.

Just in case Clement reads TNH, here is the solution ....

[lysias]

Maybe their best choice for a special counsel is some Democratic legal figure that they can blackmail or otherwise control?

[Mary]

EW - what the IG can not investigate is the conduct of lawyers as lawyers, in their professional capacity or with respect to compliance with their Code of Ethisc or of Professional Conduct- e.g., the advice they gave, whether they took advantage of a client, etc. That is why OPR (Office of Professional Responsiblity) is pulled in.

So when you say, "Now, I haven't checked back this week to see whether Gonzales grated the IG the ability to investigate lawyers. But as of last week, there was a critical flaw to the IG investigation, which was that the IG side, which is the only office that can bring charges, was not permitted to investigate lawyers' conduct." that is true, but wouldn't apply to whether or not a lawyer in the Dept committed a criminal act, like perjury. The IG cannot, in any agency, do much or anything prosecutorial for crimes it finds, however, and often has a vested interest in attempting to characterize situations as unintentional. fwiw

Completely agree on the passive voice observation and I also think that the scope should be more broadly and generally stated on several fronts, but it's a start.

Also completely agree that Clement has acted less as a lawyer and more as a partisan in his position. It's been mentioned before, but he is the one who stood before the SCOTUS and argued, on behalf of the Executive Branch that the US does not torture or do things 'like' torture. This, despite the OLC torture memos, the extraordinary renditions, the memos and picture and videos littering the desks, inboxes and computers of generals and dept heads and - most importantly - the President's direct actions with respect to Executive orders for the obscene. Hours later, karma showed what it thought of Clement with the release of the first Abu Ghraib pictures.

He, like McNulty had been, has been noted as being something of a favorite with SCOTUS and Congress, though, so ???

His letter opinion on the President's assertion of Exec Privilege re: the firings is pretty telling as to what he has become.

[bmaz]

LHP - Do you see a problem with the limited stated scope being discussed and the fact that such a restricted probe would still be so shiny as to draw the focus off the bigger picture? Not to mention still having problems with the privilege roadblocks already hoisted by the Administration?

[lysias]

I read on the Daily Kos live diary on the HJC hearing of FBI Director Mueller that Mueller confirms Comey's -- as opposed to Gonzales's -- account of the hospital incident.

[emptywheel]

LOL

I figured you'd be through here recommending Kelley, LHP. Though with all due respect, I think Clement would find him too partisan and I think others would assume he is too close to Comey.

[Mary]

Gonzales made a mistake, though, in saying that Clement also oversees the Plame investigation--that's David Margolis.

Are you sure it is Margolis and not McNulty? I think there was discussion in the Plame case initial pleadings that once the DAG slot was filled, with someone who had no conflicts and was not required to recuse (like McNulty) that the delegation to Margolis could be recalled at will by the new DAG. Walton, who is usually careful on titles and designations, repeatedly refers in his initial Opinion on principal/inferior officer issues, to the fact that the Deputy Atty Gen. can remove Fitzgerald at will and never even drops a footnote to say he means the acting AG for the Plame matter who is currently Margolis - instead, he says DAG over and over.

I'd like someone in Congress to have asked McNulty the question when they had him - whether or not he recalled the delegation to McNulty and he became the supervisory atty on the Plame matter. If he did, there might have been some further delegations once he announced he was leaving (just as Comey delegated to Margolis as he was leaving) and perhaps Clement did end up with the acting authority (I think it was probably mis-speak, but I can see where there is a way it could be true that Clement is acting on Plame now).

Would be nice to have someone in Congress ask the right questions to nail it down. FOr that matter, I always wanted them to also ask the questions of Margolis/McNulty - whoever is supervisory - to see if they overruled or modified, interfered with or amended any actions of the Spec Pros or if they recalled any delegations of authority to him or superceded any charging decisions made by him etc.

Just to clear the air on Rove, who was let off the hook right about the time that the interlocutory appeal period would have run out on Walton's rulings on principal/inferior officer. Those rulings certainly seemed to open the door for the acting supervisor/DAG to revoke some of the authority originally allocated to the Spec Pros. and I'd just like them to complete the record as to who ended up as supervisor and what they did or did not do as supervisor. Since the outside Spec Pros regs do not apply, the regs that would have required the acting AG to make a report to Congress if the Acting AG overrode any charging or indictment etc. decision also do not apply. So IMO, that means it would be prudent for Congress to at least ask and make sure they know what took place. fwiw.

[bmaz]

Mary your last paragraph is a good point, but they won't clear that up anytime soon, because it might affect Libby's appeal, at least indirectly by giving a more specific answer to the status. so I would not expect any clarification on this at least until the appeal is completed.

[Canuck Stuck in Muck]

Hey, Mauimom! Hi, EW. Hi, all. Forget Starr. Forget Bork. What we really need is a resurrected Archibald Cox! But, seriously, folks. Who're ya gonna call? Poop! To find an eminent prosecutor without an axe to grind in this matter, you might have to go offshore!