In the aftermath of Patrick Fitzgerald’s indictment of Scooter Libby, the estimable team of David Rivkin and Lee Casey makes the case for “no more special counsels.” They do a good job of laying out the potential disadvantages of using such “special prosecutors.” However, I think they give short shrift to the down-side of having regular Justice Department prosecutors investigate alleged wrongdoing by the president, vice president, or their top staffers. I doubt that the public would have much faith in the ability of the Reno Justice Department fairly and thoroughly to investigate Bill Clinton, or in the ability of the Gonzalez Justice Department to do so for Karl Rove. And, depending on the administration and the circumstances, the public’s distrust might not be misguided.
Rivkin and Casey argue that special counsels inherently are prone to over-prosecute (“once the sword is drawn, it must taste blood”). They cite the fact that there was no crime when Fitzgerald began his investigation — the crime Libby allegedly committed occurred thereafter. It’s too early to say whether Fitzgerald was over-zealous. We won’t know for sure until he’s called upon present his case against Libby in an adversarial setting. However, so far as appears now Fitzgerald would have been willing to return to Chicago without indicting anyone had he believed that no one had obstructed his investigation. And, if Rivkin and Casey are correct that regular Justice Department attorneys will investigate top-level wrongdoing properly, it follows that these prosecutors would indict those they believe obstruct their investigations.
Fitzgerald aside, Rivkin and Casey may be right that special prosecutors are more prone than non-special ones to engage in abuse (Casey Stengel speculated that designated hitters would bat irresponsibly because being “designated” would go to their heads). But the rationale for having special counsels also has force, and I don’t think anyone has been able conclusively to show which approach is the least advantageous.