- The Washington Times - Monday, January 5, 2004

After the many bad decisions he has made as attorney general, John Ashcroft made a good one last week — deciding to let someone else decide. He recused himself from the effort to find who leaked the name of undercover CIA operative Valerie Plame, on the assumption any investigation he supervises would have no credibility. The question now is whether the investigation he doesn’t supervise will have any credibility.

In the old days, that would not have been an issue. The matter would have been given to a special prosecutor, operating with complete independence from the Justice Department. But the special prosecutor law was allowed to expire in 1999. Mr. Ashcroft’s recusal left the case to Deputy Attorney General James Comey, who assigned it to U.S. Attorney Patrick Fitzgerald of the Northern District of Illinois.

This didn’t please some Democratic critics of the administration. Massachusetts Sen. John Kerry said entrusting the investigation to Mr. Fitzgerald was “nowhere good enough to restore public confidence.” Former Vermont Gov. Howard Dean needed no time to ponder Mr. Ashcroft’s decision before realizing it was “too little, too late.”

More likely, the rush to doubt is too much, too early. Mr. Fitzgerald is a dogged career prosecutor who has proven himself willing to take on not only mob kingpins and terrorists but Republican politicians. He convicted Sheikh Omar Abdel Rahman of conspiracy in the 1993 World Trade Center bombing and sent four al Qaeda operatives to prison for the 1998 attacks on U.S. embassies in Kenya and Tanzania. Lately, he has been occupied with the indictment of former Illinois Republican Gov. George Ryan for political corruption.

It may not be surprising that his associates would attest to Mr. Fitzgerald’s integrity and willingness to pursue an investigation wherever it may lead. But other lawyers apparently agree. “If John Ashcroft wanted any favors on this one, he went to the wrong guy,” said George Santangelo, who represented an accused Mafia don successfully prosecuted by Mr. Fitzgerald.

The case is not a test merely of Mr. Fitzgerald, though. It’s a chance to assess the wisdom of scrapping the special prosecutor law. Passed in the wake of the Watergate scandal, when President Nixon forced the firing of a special prosecutor appointed by his attorney general, it removed control from the Justice Department, giving independent counsels unchecked latitude.

That power sounded like a great idea during Watergate. But what might have been useful for the biggest presidential scandal in American history turned out to be ill-suited to less momentous allegations. Lawrence Walsh’s probe of the Reagan administration’s Iran-Contra scandal brought to mind Ahab’s pursuit of the whale, and proved largely moot when the first President Bush pardoned six officials who had been charged or convicted.

But that was nothing compared to the grand obsession of Kenneth Starr, whose investigation of Whitewater and related matters took six years and cost more than $50 million. In the end, neither President Clinton nor his wife was indicted. Never was so much spent to discover someone didn’t commit a crime.

Many Democrats who detested Mr. Starr now bridle at the notion of letting a political appointee look into possible misdeeds by aides to the president who appointed him. But once you dispense with special prosecutors, that’s about the only option available for alleged criminality in the executive branch. And there’s good reason to believe career prosecutors like Mr. Fitzgerald are fully capable of doing the job as it ought to be done.

That means, of course, going after wrongdoers no matter who they are — an instinct that goes as deep as bone marrow in lawyers who have spent their professional lives fighting crime. You have to be awfully cynical to think someone who has put countless long hours at relatively low pay into the mission of law enforcement is going to throw away his (or her) basic convictions and personal reputation rather than do an unpleasant job.

Career prosecutors also bring something else that has often been lacking in special prosecutors — a sense of proportion. They make decisions all the time based on whether the resources required to go after a defendant are reasonable, given the gravity of the offense. It’s hard to believe a U.S. attorney would have spent as much as Kenneth Starr did on suspected crimes of such modest significance. People in that job generally know not only when to prosecute but when not to.

The task before Mr. Fitzgerald is to decide whether to bring indictments or end the investigation without prosecutions, and make a persuasive public case for his decision. My guess is that when his investigation is over, any second thoughts about the special prosecutor law will be gone as well.

Steve Chapman is a nationally syndicated columnist.

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