Has this special counsel/prosecutor thing gotten out of hand?

In an article in the Christian Science Monitor about the charges against Libby, Paul Rothstein, a law professor at Georgetown University, is quoted as stating that:

...the Libby case raises questions about the fairness of appointing a special counsel to engage in open-ended investigations that involve political officials in Washington.

[Rothstein] says political officials are under more pressure than most other Americans faced with a criminal investigation. "Because they are afraid of political embarrassment ... they can't do what normal people would do in this situation and simply take the Fifth - plead the privilege against self-incrimination and not answer," Rothstein says. "They take a big political hit for that, so they lie," he says.

Rothstein says to avoid this kind of trap, special prosecutors should use their prosecutorial discretion not to file coverup charges when there is no evidence related to the alleged underlying crime.

Rothstein isn't saying he knows Libby's motivation for lying, but he does state that he thinks it more likely than not that his actions:

were aimed at heading off political embarrassment, rather than covering up criminality at the White House. "He knew it would be embarrassing politically if the government even accidentally and innocently was the source of [the leak of the agent's name]," Rothstein says.

Many are likely to embrace the nefarious explanation, Rothstein says, but the actions of the special counsel in declining to charge anyone with illegally disclosing secrets suggest the innocent explanation may be closer to the truth.

I don't think Rothstein means to excuse perjury by making this point, and neither do I. But the fact is that, unfortunately, the special prosecutor/counsel is in danger of becoming just another political tool, a set-up that is often used by enemies to trap public officials--even previously innocent ones--between the rock of embarrassment and the hard place of perjury. In fact, perhaps that transformation of the special prosecutor/counsel function already happened quite some time ago. So Mr. Rothstein's suggestion that the scope of charges filed as a result of such investigations somehow be more strictly limited makes a great deal of sense to me.

Now, what was the original purpose of Fitzgerald's appointment?

When Special Counsel Patrick Fitzgerald began his investigation in December 2003, his instructions were to identify who leaked the name of a CIA agent to columnist Robert Novak and determine whether that action violated any secrecy laws.

It wouldn't have been a bad idea if he'd kept it to that, since there's a great deal of speculation that Plame was not even a covert agent to begin with, as she apparently would have to have been for the secrecy law in question to have been violated. Even Fitzgerald himself has alluded to this issue, and has only referred to her as "classified.".

Oh, and in addition: it wouldn't be such a bad idea if the Supreme Court, with its brilliant new justices we've all heard (and will hear!) so much about, could decide differently the next time this little question comes up: should a person be allowed to sue a sitting President?

So, what's the connection here?

You may recall that the Supreme Court's decision in Clinton v. Jones was unanimous, and I quote:

Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies, and, whatever the outcome, there is no possibility that the decision here will curtail the scope of the Executive Branch's official powers. The Court rejects petitioner's contention that this case--as well as the potential additional litigation that an affirmance of the Eighth Circuit's judgment might spawn--may place unacceptable burdens on the President that will hamper the performance of his official duties. That assertion finds little support either in history, as evidenced by the paucity of suits against sitting Presidents for their private actions, or in the relatively narrow compass of the issues raised in this particular case.

Even I could have told them differently; but they didn't ask.

Well, you may also recall that the deposition in which Clinton lied and perhaps committed perjury (depending, of course, on whether the lie was both intentional and material) was a direct result of the Supreme Court's decision in Clinton v. Jones to allow the Paula Jones lawsuit against Clinton to go forward. You may also recall that the motive for Clinton's lie in that case about his relations with Lewinsky--which, unlike Libby's alleged lies, did not even involve official conduct--was clearly and indisputably the desire to avoid personal embarrassment. Rothstein mentions the motivation of even innocent public officials to lie to avoid political embarrassment, but there is at least as strong a motivation for them to lie to avoid personal and familial embarrassment, which of course has political repercussions as well.

The above-linked 1997 Washington Post article about Clinton v. Jones contains the following statement, which in my opinion shows more prescience than the Supreme Court did in handing down their decision:

The ruling not only has historic consequences for the institution of the presidency, it also could have a bruising political effect on Clinton: He now can be required to answer potentially embarrassing questions about Jones's claim that he propositioned her and exposed himself to her in a Little Rock hotel room while he was governor of Arkansas and she was a low-level state employee.

The questions were embarrassing indeed, and were not limited to his sexual conduct with Jones, but involved his sexual conduct with Lewinsky.

Perjury cases are very rarely pursued, as we saw here. But they can be a particularly dangerous trap for public officials: just get a special prosecuter or special counsel to go on a fishing expedition and someone, somewhere, somehow (even a heretofore legally innocent person) is going to lie to protect him/herself from embarrassment or from the need to plead the Fifth and expose him/herself to accusations of cowardice. Or, alternatively, allow a sitting President to be sued and force him to answer personal questions about his sex life and extramarital liasons--again, despite the fact that the original lawsuit itself ends up going nowhere--and you have a setup for him to lie to save himself and his family from embarrassment or the need to plead the Fifth and expose himself to accusations of cowardice or coverup.

That's the symmetry between Libby's situation and Clinton's. It's a dilemma: we do not want perjury condoned or winked at, or to go unpunished (even though it turns out that in practice it usually does). But we also do not want each political party to sequentially set up a series of traps--open-ended investigation after investigation, civil lawsuit after civil lawsuit--that can be used to get public officials into situations in which they are more and more likely to commit perjury to protect themselves from embarrassment.

And lest you think my suggestion that further civil lawsuits against sitting Presidents might be in the offing is farfetched, please read this:

In addition to the prospect of indictments looming in the CIA leak case, the Bush administration faces another threat: civil litigation that could expose top officials to damage payments and years of wide-ranging scrutiny.

Former diplomat Joseph Wilson, whose criticism of the administration’s Iraq policy sparked the current furor and led to the outing of his Central Intelligence Agency-operative wife, Valerie Plame, isn’t saying for sure if he will sue. But one recent precedent is the debilitating civil suit against his former boss, President Clinton. “What would be interesting to us would be to get the justice that a civil case offers,” Mr. Wilson says.

Interesting, indeed.

How could we put an end to this tit-for-tat mess, while still holding public officials accountable? I would hope, for starters, that the Supreme Court has learned its lesson, and if the question comes up again will rule that there be should be no civil lawsuits against a sitting President. Next, when a special prosecutor/counsel is appointed, the scope of the charges he/she can bring might be limited to ones that are reasonably related to the original matter for which the investigation was ordered, or to charges of a more serious nature. To discourage perjury, perjury charges could also be brought in connection with the investigation even if there are no other indictments, but not in the latter case for answering questions in which a public official, by answering, would be incriminating him/herself and for which most people would ordinarily be taking the Fifth.

Again, I'd be especially curious to hear what any lawyers among you have to say--whether these things are possible or desirable, and whether they would actually work. If anyone has any better suggestions than mine, please feel free--I'm all ears.