Sunday, October 30, 2005

Strange Bedfellows on Special Counsels

One the Kossacks feels fit to trash a recent op-ed by David Rivkin and Lee Casey which called for the end to special counsels and their open ended investigations. Their argument is basically Justice Scalia's dissent in Morrison v. Olson, 487 U.S. 654 (1988):
What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile -- with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion.

The left is eager to paper over the fact that no violation occured ex ante the grand jury investigation. Any argument against the office of special counsel, is therefore, in their mind, an effort by the right to detract from the seriousness of the charges against Libby. The argument against the special counsel, however, does not minimize the deleterious effects of false testimony, but points out the fact that these investigations tend to create crimes rather than investigate crimes that have occurred.

And this argument is not only put forth by conservatives. In a recent WSJ op-ed, two Georgetown Law professors, Dinh (a conservative) and Katyal (an uber-liberal), argue against the institution of the special counsel as well. They argue that the politcal atmosphere in Washington is such that special counsels are improperly injected into the political system and open themselves up to charges of overzealous prosecution.

To my mind when you find liberals and conservatives agreeing, there is truth to be had. Kosian (heh, almost rhymes with Coasian) whining notwithstanding.