It's Time to Think About an Independent Prosecutor

With Alberto Gonzales enjoying the kind of full-fledged support from President Bush which Eagleton enjoyed from McGovern, it's time for Democrats to think about an independent prosecutor who can look into possible criminal conduct in both the Justice Department and among the White House staff.

There will only be a short window when such an appointment is possible - between the time when Bush nominates his third Attorney General and confirmation by the Senate. That's the moment when the Senate will have its greatest power: they can refuse to confirm any nominee until a special prosecutor is named and until there is a public pledge by the White House that the independent counsel shall not be fired.

At the moment, institutions exist which can examine possible criminal conduct by the President (who is, of course, subject to impeachment by the House and trial by the Senate) and members of Congress (whose conduct is already being scrutinized by the respective houses' ethics committees and who are potentially subject to censure, sanction, and even expulsion by the bodies themselves).

But since the independent counsel law was allowed to lapse, there remains no institution which can look into potential criminal activity by the White House staff other than the Justice Department, and no one who can readily examine the Justice Department other than its Office of Professional Responsibility (OPR).

We know what happened the last time a member of the Bush Justice Department conducted a calm, conservative, and ultimately successful if limited prosecution of a high-ranking White House aide - Patrick Fitzgerald (according to the materials in the document dump as reported by NPR) was rated a mediocre prosecutor.

As to the OPR, it is the one segment of the Justice Department whose integrity remains unquestioned. Alas, according to an article by Murray Waas published last week in the National Journal, Gonzales and Bush responded to the OPR's integrity by squashing an earlier investigation into misconduct by DOJ lawyers regarding the warrantless eavesdropping program. So much for an unimpeded investigation into the far more publicized and politically charged U.S. Attorney firings.

With Justice unable to police the White House and the OPR unable to police Justice, an independent prosecutor is the only possible means which remains to address the very substantial legal issues quite eloquently laid out by Adam Cohen in this past Monday's NY Times. Obstruction of justice and lying to Congress are not pleasurable privileges allowed to any member of the executive branch.

It should be noted that we are a far distance from proving any criminal charges. It may well be that no provable charges exist. Certainly any independent counsel should heed the words of fired Washington State U.S. Attorney John McKay who refused to "drag innocent people in front of a grand jury." If the special prosecutor finds through his inquiry that no criminal activity occurred, then that's the end of the affair. But if, in fact, the eight were fired for refusing to use their offices for partisan purposes (or if administration officials lied to Congress about the matter) than crimes were committed which are as heinous as those coming out of Watergate and far worse than those committed by Scooter Libby.

Any special prosecutor would have to be someone of extreme probity, with deep prosecutorial experience, and with no taint of zealotry. It must be someone either appointed by Congress or appointed in consultation with Congress.

Given the way Bush is screaming today, as if telling the truth in public were something no member of his administration should ever be required to do, one can only imagine how he would howl once the notion of an independent counsel is breached.

That's why the window of opportunity is so small. What is at stake here is the integrity of the entire justice system - a justice system presided over by the Attorney General. That's why it would be appropriate for the Senate to insist that no Attorney General could possibly be confirmed if an investigation entirely independent of the administration is not opened, funded, and protected from abuse.