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.

Comments

[JGM]

I don't know about that last sentence. It seems to me that there are obvious reasons why you would not want an upfront rule that no one will be prosecuted for perjury or obstruction of justice: the investigation and grand jury proceedings would be farcical with a guarantee like that. That still leaves the issue of whether, as a matter of sound prosecutorial discretion, Martha Stewart-style prosecutions are a good idea. Unfortunately, it is in the nature of maxims of discretion that they can't be made into rules.

[Daniel Ingber]

How can a prosecutor investigate criminal activity if witnesses and targets can lie or obstruct the investigation with impunity? Sen. Hutchinson's comments were the first in an attempt at Republican damage control. The next day, they were echoed by the Wall Street Journal editorial page. The authority of the special prosecutor to charge perjury or obstruction of justice is inherent in his job. Of course the prosecutor shouldn't bring purjury or obstruction charges if they don't believe the targets are guilty of these crimes - but just because republican commentators think the charges are weak doesn't mean the prosecutor does, or a jury will.

[Bob McKee]

You point out that Comey is an alum, but fail to point out that Ashcroft is also. Why the double standard? Politics? Carelessness? Or some other reason?

[Jason Fliegel]

One interestkng thing about the politics of all of this is to consider the timing and content of Mr. Fitzgerald's website (the DOJ site linked to by Professor McAdams above). This site only went live within the past week or so. Some have suggested that the website was established so that Mr. Fitzgerald would have a central forum on which to publish any indictments that may issue.

That probably plays into it, but an alternative reason for the web site may be that it gives Mr. Fitzgerald a forum on which to publish the documents which delineate his authority. After all, if you go to the website now, what you will find are the letters Professor McAdams highlights above. Perhaps this is Mr. Fitzgerald's way of preemptively responding to attacks that perjury indictments overstep his authority.

[bob]

Given the source and scope of Mr. Fitzgerald's authority, do you know if he was mistaken in claiming that he did not have the authority to issue a final written report about his investigation? I wouldn't think that the Attorney General would be limited in such a way, even if a Special Prosecutor would be.

[bob]

Relevant Q/A section for previous post:

QUESTION: I think you, kind of, answered this but I assume that you have no plans and don't even think you'd be allowed to issue a final report of any sort.

FITZGERALD: You're correct. But let me explain that.

I think what people may be confused about is that reports used to be issued by independent counsels. And one of the complaints about the independent counsel statute was that an ordinary citizen, when investigated, they're charged with a crime or they're not; they're not charged with a crime, people don't talk about it.

Because of the interest in making sure that -- well, there's an interest in independent counsels to making sure those investigations were done thoroughly but then people ended up issuing reports for people not charged. And one of the criticisms leveled was that you should not issue reports about people who are not charged with a crime.

That statute lapsed. I'm not an independent counsel, and I do not have the authority to write a report, and, frankly, I don't think I should have that authority. I think we should conduct this like any other criminal investigation: charge someone or be quiet.

QUESTION: Isn't it kind of true that Mr. Comey's letter to you makes you in essence almost a de facto attorney general and you can abide or not abide by the CFRs or the regulations as to whether or not to write -- to write a report or not to write a report?

And the follow-up is, every special counsel prior to you has in fact written a report and turned it over to Congress, and they've gotten around the grand jury issue as well.

FITZGERALD: Let me say this. I think any prior special counsel may have been special counsel appointed to -- certain regulations for people outside the Department of Justice, which I do not fit into. I'm not an independent counsel. I may be unique in this sense. I can tell you, I'm very comfortable, very clear that I do not have that authority.

And the extent that I was given sort of the acting attorney general hat for this case, it's the acting attorney general, but the attorney general can't violate the law. And the law on grand jury secrecy is the law.

So I may have a lot of power for this one case in the acting attorney general hat, but I followed the Code of Federal Regulations in this case, and I certainly would follow the law.

[Krstafer Pinkerton]

I hope you folks In Chicago remember the tenacity of the "PINKERTONS", well, it is alive and well in beautifully corrupt Kauai...

Perjury exists in many cases and is hard to prove yet I have spent many hours reviewing court transcripts and have recently pieced together "prosecutorial perjury" and have posted in on YOUTUBE and on the index page of my website which exposes crooked cops and prosecutors. http://www.kpinkerton.com