October 02, 2003

No to an Independent Counsel

No to an Independent Counsel

Say two law school profs. Viet Dinh, my old Corporations prof in law school, is a Republican--but Neal Ketyal served under Clinton. They make some very cogent points:

"The problem was with the law itself. The independent counsel was a constitutional orphan, with no base in any branch of government. The person in the job had nothing to do but investigate a single entity for some kind of wrongdoing. Independent counsels were almost entirely insulated from budget constraints, investigation deadlines and Justice Department policy and practice. And because they were judged by the indictments and convictions they obtained, they had an incentive to investigate, accuse and pursue relentlessly. To paraphrase a saying made famous by Mark Twain: to a man with a hammer, a lot of things look like nails.

Such incentives are particularly problematic in a case involving leaks. Leak investigations often drag on endlessly and rarely culminate in indictments. They can demoralize government staff members, who often must take several polygraph tests. They also have a chilling effect on reporters and columnists, who face tremendous pressure from the government to reveal their sources.

In a case like this one, where national security concerns may be pitted against the First Amendment freedom of the press, it is important that the investigation proceed carefully and methodically and with accountability. So far, there is absolutely no reason to think that the Justice Department is incapable of handling it."

Indeed.

Posted by Gregory at October 2, 2003 10:40 AM
Comments

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