Is A Special Prosecutor On Deck?

Attorney General Alberto Gonzales speaks during a news conference at the Justice Department in Washington, Tuesday, March 13, 2007.
Attorney Andrew Cohen analyzes legal issues for CBS News and

Getting most of the publicity this past weekend were official documents that directly contradict the statements Attorney General Alberto R. Gonzales made a few weeks ago when he tried to distance himself from the burgeoning controversy over the Justice Department's firing of eight federal prosecutors last year. It was the sort of "gotcha" moment that many politicians, journalists and lawyers seem to live for in this age of canned spin and in-your-face denials (see, e.g., "Snow, Tony").

But perhaps the more important news coming out of the Justice Department late last week is that the Inspector General's office, and the Office of Professional Responsibility, are now undertaking an unusual and perhaps unprecedented joint internal investigation to determine whether any department officials, including lawyers, broke any rules or violated any laws throughout this process. The investigation reportedly was requested by the attorney general himself (to his credit) and is destined to shed more light on what really happened when the White House and its tribunes at the Justice Department decided to whack eight U.S. attorneys for not being, in the words of one official, "loyal Bushies."

This sort of internal investigation may not ultimately give us all the answers we seek — it's unsettling at best to have Justice Department officials investigating Justice Department officials under the supervision of an attorney general who himself may ultimately become a target or subject of the investigation. And if you were a conspiracy theorist, you might be inclined to believe that the fix is in, what with the fox checking on security at the henhouse. Well, it isn't. The Gang That Couldn't Fire Straight — Gonzales and Company — are going to be subject to the sort of scrutiny never before brought to bear upon the subject of the dismissal of federal prosecutors. This is what occurs when you try to fire your own prosecutors in the middle of a term without an obvious (or honorable) reason for doing so.

Indeed, Glenn A. Fine, the inspector general, seems well suited to undertake a fair and thorough look at this mess as part of his office's investigation. Fine is himself a former assistant U.S. attorney and has worked at the OIG for over 10 years. Most importantly, as a career bureaucrat, he is not beholden as so many other Justice Department are to the current administration — he was confirmed as inspector general in the final days of the Clinton administration. Moreover, his large staff of lawyers, investigators and auditors (The New York Times Monday puts this number at 400) just completed a scathing report critical of the Federal Bureau of Investigation for its misuse of national security letters.

He is an unlikely candidate, therefore, to sweep under the rug whatever remaining garbage emerges from this scandal. Nor, for that matter, is H. Marshall Jarrett, the disciplined and well-respected head of the Office of Professional Responsibility, likely to suffer gladly the many Bush administration fools who have brought us with this episode to the intersection of Farce and Conspiracy. The OPR component of the investigation will focus upon Justice Department lawyers (including the attorney general and Deputy Attorney General Paul J. McNulty) and their role in this fiasco. Jarrett and Fine together, especially if they can coordinate their efforts and avoid bureaucratic turf wars, will make a formidable team trying to determine how bad this problem is, and who was and is involved.

But what if their investigation is stymied by the attorney general or the White House? What if Fine and Jarrett and their competent and professional sleuths within the Justice Department uncover from among the disparate stories offered by their co-workers evidence of criminal conduct or even the residue of criminal conduct? While it would be nice to think that we have seen and heard the absolutely worse about this controversy, what if we haven't? What if the changing stories offered by Justice Department officials, including the attorney general, mask some darker conspiracy? I'm not predicting this will occur — in fact, I doubt it. But what if it keeps getting worse?

We already have seen over the past week or so the inherent limitations that arise when Congress tries to nose in on executive branch business. The Democrats can only put so much political pressure on the White House and Justice Department to cooperate with legislative oversight before administration officials snap back with the executive privilege argument (a trump card here, if you ask me). If the current impasse is not broken by a reasonable compromise — and who accuses each side here of being terribly reasonable? — we'll have a discomforting and ultimately unsatisfactory fight in court over who has to turn over what and when. So then what?

A special prosecutor. That's right — another special prosecutor. And while it may be a bit premature to talk about that possibility — maybe Fine and Jarrett in the end will find it was all just negligence or gross incompetence without any nefarious intent — it is not beyond the scope of comprehension. After all, it is a crime to deceive Congress. It is a crime to try to obstruct a criminal investigation. And it is a crime to threaten a prosecutor. So if Fine and Jarrett uncover even a whiff of any of this, and refer the matter for prosecution or some other formal legal action, it seems to me it will be impossible for Gonzales (if he is still around) and the White House to stem the calls for a Fitzgeraldian Figure (that's Patrick, not F. Scott) to restore honor, integrity, order and, yes, justice back to the Justice Department.

A few weeks ago, when this hullabaloo was just getting started, I never would have dreamed that the story would have devolved into anything more than just another example of Gonzales' broad failings as a leader, a lawyer and a politician. But it has. Let the investigation begin. Lord knows where it will end.

By Andrew Cohen