The Drawback in Using Special Prosecutors

What are special prosecutors good for? Do they serve a valid public interest? Or do they usurp the power and discretion of the sitting prosecutor for sometimes questionable reasons? And, most troubling, does the public demand the appointment of a special prosecutor not for the purpose of conducting an impartial and objective investigation but simply to bring criminal charges against putative wrongdoers?

This latter question has been at the apex of the debate over whether to appoint special prosecutors whenever a police officer is charged with killing a civilian, following the refusals of the Ferguson and Staten Island grand juries to indict police officers. Those seeking special prosecutors in such cases claim that the sitting prosecutor, because of his close relationship with the police, is inherently unable or unwilling to conduct a fair and evenhanded investigation.

The issue has also been fueled by the U.S. Senate's recent "Torture Report," and the demand by the American Civil Liberties Union, Human Rights Watch, and the New York Times Editorial Board for Attorney General Eric Holder to investigate violations of criminal law relating to, what is commonly called, "rendition, detention and interrogation" by the CIA in the aftermath of the September 11, 2001 attacks. Indeed, there is no question that a criminal investigation into these matters is warranted - even if, at day's end, the nature of how America may have chosen to deal with terrorism in the wake of 9/11 turns out to have been scandalously misguided, maybe even criminal. But these groups want more - they want Holder to appoint a special prosecutor to conduct the investigation, even though the way Holder has conducted himself as Attorney General makes him the best friend civil rights organizations could possibly have.

The truth is, given how the Obama Administration has chosen to deal with the issue of torture, even following its strident criticism of the Bush Administration's policies on Guantanamo when Obama first ran for President, civil libertarians recognize this fundamental fact: this Administration (and, let's face it, likely any Administration) is simply not going to pull the trigger and bring indictments against those who - however ill-conceived in how they went about doing the dirty business of interdicting a repetition of 9/11 - tried to protect "the homeland." Ergo, recognizing that the President and the Justice Department will have to "live with" the CIA going forward, the rights organizations are imploring: "We call for the appointment of a Special Prosecutor!" And that demand, as well as the likelihood, even propensity on policy grounds, that the Attorney General will "take a pass," is advanced in good faith. The theory: "The Attorney General is definitely not going to indict, and we want someone who might. And if we have to argue that a special prosecutor is needed to avoid 'an appearance' of conflict on the part of the prosecutor who sits in the President's cabinet, so be it."

The devotion to the sanctity of a special prosecutor, in recent history anyway, probably reached its peak as a result of the Watergate scandal. There is no question that, despite the good faith of the line prosecutors at the Justice Department when the Watergate break-in was first investigated, the breadth and depth of the Watergate scandal and the direction to which it led would likely never have been unearthed without the appointment of Special Prosecutor Archibald Cox and his successor Leon Jaworski. They were the gold standard of special prosecutors, and the events - the attempts by a sitting president and his coterie of henchmen to cover up a break-in at the Democratic National Committee - certainly justified the appointment of independent investigators.

But the fallout from the success of the Watergate investigation is this: ever since, victims of wrongdoing, advocates, legislators and the press have demanded that a special prosecutor be appointed almost whenever it appears that the sitting official isn't going - or hasn't gone - in the direction they seek. Unquestionably, those officials appointed in these circumstances - call them Special Prosecutor, Independent Counsel, Special Counsel or anything else - are typically men and women of considerable talent and reputation. But once assigned to act, there is something akin to a hydraulic pressure on them to believe they must act, if for no other reason than to justify their assignment. This is so even if - and this may be the case - they really should do nothing.

Cases in point: There is Lawrence Walsh - a former, distinguished, federal district judge. He created a giant bureaucracy and spent tens of millions of dollars to investigate the Iran Contra scandal. There were indeed indictments, and even some convictions. But there were also pardons and reversals of those convictions. Put another way, the several years and millions of dollars largely resulted in pretty much nothing. Similarly, Patrick Fitzgerald, a distinguished US Attorney, spent years investigating and ultimately convicting Scooter Libby for having lied to investigators and obstructing an investigation into the identity of the person who leaked the fact that Valerie Plame was a CIA agent. Libby received a 30-month sentence, which was commuted. He never served a day in jail. By contrast, a New York Times reporter was jailed for refusing to give up her source in the affair; and the actual "leaker," Richard Armitage of the State Department, was never prosecuted at all. And need we mention Kenneth Starr, who was asked to look into Whitewater and expanded (some would say, parlayed) that role in an effort to bring down a sitting president over a stupid sex scandal?

Thus, when fueled by public interest groups and the press, the public seemingly cries out for these special prosecutors. The public demands an investigation and the "right to know" what happened, and politicians want to be able to assure the public that justice is being administered fairly and evenhandedly. There is no question that sitting prosecutors are guilty of abuses, and bad judgment, there have been some clinkers sitting at the helm of Main Justice and District Attorneys' offices around the country. And of course sitting prosecutors and their assistants are not only guilty of excesses, but may suffer from conflicts of interest that need to be remedied. But special prosecutors - who often are unsupervised and unchecked - are not always the answer.

Simply put, special prosecutors feel the need to pull the trigger! No matter that special prosecutors may be completely righteous in how they go about their decision making, they lack prosecutorial discretion. They typically have one case on their docket - period. They do not question whether they should exercise that discretion by not doing something, a decision that line prosecutors make every day. Special prosecutors are typically not concerned about budget constraints (indeed, if one were to actually think about it, the tens of millions spent on the cases above is absolutely shameful; it is reported that Starr alone spent $70 million dollars). They have no priorities other than the special investigation. Special prosecutors aren't burdened by legitimate concerns about how such prosecutions may affect morale in government agencies where the rank and file are doing their jobs with only the public interest at heart. They aren't concerned about threatened disclosure of state secrets in graymail, something which sitting prosecutors must legitimately focus on. They do not look at the big picture when offering a plea, or immunity, to someone who perhaps should not receive a deal; they seem to need to get to the truth at any cost. Special prosecutors often do not have perspective when it comes to national security concerns that might lead to violence or retaliation across the globe, as has been raised in opposition to Senator Dianne Feinstein's decision to release the Senate's CIA Torture Report.

Special prosecutors often have blinders on when pursuing their hunt. And while blinders may help them be better sharpshooters, it may make them impervious to other legitimate considerations that may be at play.

Undeniably, the recent controversial grand jury decisions in Ferguson and in Staten Island might have been completely different - meaning, the officers would have been indicted -- had those cases been presented to their respective grand juries by special prosecutors who, frankly, didn't have to deal with the police departments on a daily basis. And that indeed is a tragedy. But is the fact that a result would likely have been different, and even maybe objectively better, a reason to depart from precedent whenever there is an outcry over a particular result?

And should special prosecutors be appointed, are they really necessary because special interest groups or Fox News, or for that matter the New York Times (or its Editorial Board), insist that a line-prosecutor is likely to get it wrong when a particularly controversial matter is in the crosshairs of the prosecutor with jurisdiction over the matter? Because if an administration is willing to knuckle under every time some advocacy group decides that it's position isn't going to get a fair shake or "true bill" from the sitting prosecutor, we may as well put those groups - or news outlets - in charge of law enforcement. Just imagine what that would be like!