Ashcroft as Br'er Rabbit
Will a special counsel bury the Plame investigation?
Democrats who've been hollering for a special counsel to investigate the White House leaking of CIA employee Valerie Plame's identity have finally persuaded Attorney General John Ashcroft to recuse himself and to hand the investigation over to Patrick Fitzgerald, the U.S. attorney in Chicago. This isn't precisely the same thing as appointing a special prosecutor, because special prosecutors generally come from outside the Justice Department. (Independent counsels like Kenneth Starr are a thing of the past because Congress didn't renew the independent counsel statute in 1999. Presidential candidate Joe Lieberman has cited the Plame case as a reason to reinstate the independent counsel law, which would be nuts for reasons Chatterbox previously explained here.) On the other hand, Fitzgerald will apparently have a freer hand in conducting his investigation than a special counsel would. Newspapers are describing Fitzgerald as a "special prosecutor" or "special counsel" because that's more or less what he will be.
The mystery is why Ashcroft, after resisting the appointment of a special prosecutor for several months, changed his mind. One exciting possibility is that Karl Rove, whom Plame's husband, former diplomat Joseph Wilson, fingered early on, has emerged as a serious suspect. (Rove was a political consultant on two of Ashcroft's gubernatorial campaigns and one of his Senate campaigns.) But it's just as possible that Ashcroft handed the investigation over to a special counsel in order to bury it.
That may sound counterintuitive, but just last week the Washington Post reported that the Justice Department's Plame investigation was "gathering momentum," that a fourth prosecutor had been added to the team, and that there was even talk of empanelling a grand jury. Assuming that Ashcroft really did want to protect his friend Rove, and/or to shield the Bush White House from political scandal at least until the 2004 election, wouldn't such news make him want to slow the investigation down? What better way than to start it all over again? (Fitzgerald will be given an investigative file containing 30-plus interviews with Bush administration officials, but it's still likely he'll want his own team to interview them, too.) Special and independent counsel prosecutions have two common characteristics that, to Ashcroft, may lend them particular appeal: They last forever, and they almost never get their man.
That such prosecutorial efforts go on and on is well known, and it's the main reason independent counsel prosecutions (the worst offenders) were finally stopped for good. Even after their investigations finally end, independent counsels can give the Energizer Bunny a run for its money. The independent counsel appointed in 1995 to investigate Henry Cisneros was still in business this past summer, and someone named Julie Thomas was keeping the lights burning in the Whitewater independent counsel's office as recently as this past spring. (For all Chatterbox knows, they're still there.)
For all their tenacity and their unique ability to harass minor government officials, however, special and independent counsels have collected precious few high-level scalps. The jewel of the collection is Richard Nixon's, seized by Archibald Cox and Leon Jaworski, the two Watergate special prosecutors. But how many targets for prosecution or impeachment actually tape record themselves committing the crime? The record since then has been pretty dismal. Let's review.
There were dead-end investigations into whether Jimmy Carter's chief of staff, Hamilton Jordan, and his campaign manager, Tim Kraft, used cocaine; whether Ray Donovan, Ronald Reagan's labor secretary, had mob ties; whether Ed Meese, Reagan's attorney general, provided insufficient disclosure of his finances; whether Ted Olson, Reagan's assistant attorney general (now Bush's solicitor general) committed perjury while testifying about Superfund before a congressional committee; whether Janet Mullins, a White House aide to George H.W. Bush, illegally ferreted out old passport records concerning candidate Bill Clinton; whether two other Bush père aides whose identities were never revealed were guilty of doing something that was never revealed; whether Ron Brown, Bill Clinton's commerce secretary, was involved in illegal financial shenanigans; whether Eli Segal *, one of Clinton's money guys, engaged in illegal fund-raising while running Americorps; whether Bruce Babbitt, Clinton's interior secretary, committed perjury while testifying about Indian gaming before a congressional committee; and whether Alexis Herman, Clinton's labor secretary, solicited illegal campaign contributions. All these investigations were completed without the filing of any charges. (Donovan was indicted years later, and acquitted; the Brown investigation ended when Brown died in a plane crash.)
Independent counsels did manage to indict and convict Reagan National Security Adviser John Poindexter and Reagan National Security Council aide Oliver North in the Iran-Contra investigation, and Lyn Nofziger in the Wedtech investigation, but these convictions were all overturned on appeal. Reagan Defense Secretary Caspar Weinberger was indicted in connection with Iran-Contra, but pardoned by George H.W. Bush before trial. The other marquee convictions in Iran-Contra were of National Security Adviser Robert McFarlane (who preceded Poindexter) and Elliot Abrams, assistant secretary of state for inter-American affairs (and now the lead Middle East policymaker on the National Security Council). But these were misdemeanor convictions, and both men were also pardoned by Bush père. Clinton Housing Secretary Henry Cisneros pled guilty to lying to an FBI agent about payments to his former mistress—a subject that, strictly speaking, was none of the government's business—but that was a misdemeanor, too.
Independent counsel Arlin Adams managed to convict the executive secretary to HUD Secretary Sam Pierce, who now runs an antiques shop in Georgetown, for conspiracy, perjury, and taking bribes. But Adams never laid a glove on Pierce himself. Independent counsel Donald Smaltz won an indictment against Mike Espy, Bill Clinton's agriculture secretary, for accepting gifts from groups regulated by his department. But Espy was acquitted.
Besides Nixon's, the only scalps really worth displaying in the Pantheon of Independent and Special Counsels belong to Mike Deaver (whose conviction for perjury, a felony, was never pardoned or overturned) and Bill Clinton (who was impeached by the House, though not convicted by the Senate). Both men are thriving today—Deaver as big-time lobbyist, small-time TV star, and much-in-demand raconteur about the Reagan presidency, and Clinton as the elder statesman of the Democratic Party.
This is the briar patch that Ashcroft is throwing the Plame leaker into. Have the Democrats who urged him to do it read their Uncle Remus?
Timothy Noah is a former Slate staffer. His book about income inequality is The Great Divergence.