The Special Prosecutor's Authority
In anticipation of possible indictments in the Plame investigation, commentators have recently expressed the hope that the Special Prosecutor Patrick Fitzgerald will not charge anyone with only cover-up offenses such as perjury or obstruction of justice. The idea is that Fitzgerald should pass on charging such offenses unless he can also charge the same person with a "substantive" crime, especially the crime that gave rise to the investigation, which (roughly) prohibits those with security clearances from knowingly disclosing a covert operative's status. Two days ago Sen. Kaye Hutchinson stated on "Meet the Press" that she hoped that, if there were an indictment, it would be "on a crime and not some perjury technicality." Nicholas Kristof makes essentially that point in today’s New York Times. In the Weekly Standard, Bill Kristol makes a similar but weaker point – that Fitzgerald should not bring a perjury charge unless it is "clear cut" nor any obstruction charge unless it is "willful and determined."
It is tempting to be side-tracked by the irony posed by Sen. Hutchinson referring to perjury as a technicality, given the contrast with her 1999 speech explaining her vote to convict President Clinton of (only) perjury and obstruction of justice charges. But the question of when prosecutors should indict government officials (or anyone else) solely for cover-up crimes raises serious policy issues. In this post, I merely wish to make two relevant observations: the process by which Fitzgerald was selected and the legal authority he possesses to make the decision to indict individuals for perjury, obstruction, and the like.
On Dec. 30, 2003, then-Deputy Attorney General James Comey (Chicago law class of 1985) announced the recusal of Attorney General John Ashcroft from the Plame investigation and the appointment of Patrick Fitzgerald as Special Counsel. At the press conference, Comey stated that he choose Fitzgerald, his "friend and former colleague, based on his sterling reputation for integrity and impartiality. He is an absolutely apolitical career prosecutor." See http://news.findlaw.com/hdocs/docs/doj/comey123003doj-pconf.html. 28 CFR 600 defines the powers of a special prosecutor. Section 600.4 states that: "The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." See http://www.access.gpo.gov/nara/cfr/waisidx_03/28cfr600_03.html.
Interestingly, however, Comey did not give Fitzgerald the ordinary powers of a Special Counsel. As he explained at the press conference: "[I]n many ways the mandate that I am giving to Mr. Fitzgerald is significantly broader than that that would go to an outside special counsel." Comey was referring to the fact that by letter of that same day, he expressly delegated to Fitzgerald "all the authority of the Attorney General with respect to" the Plame investigation. See http://www.usdoj.gov/usao/iln/osc/. Because Ashcroft had recused himself from the Plame investigation, Comey possessed all the authority of the Attorney General for that matter and it was that authority that he delegated to Fitzgerald.
Notwithstanding this unusually broad delegation, Fitzgerald apparently asked for more explicit indications of his authority and on Feb. 6, 2004, Comey wrote to Fitzgerald that his authority is "plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses" (emphasis added). Indeed, Comey indicted that Fitzgerald’s title of "Special Counsel" "should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600."
None of this answers the ultimate policy question, but if it really is a good idea to forbid special counsels from prosecuting an individual solely for a cover-up crime, then it might be best to say so at the outset.