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chapter 6: What’s a little Prosecution among Friends? A Framework for Political Analysis On April 7, 1995, Independent Counsel Joseph DiGenova filed his final report in the case of Elizabeth Tamposi and the passport search scandal. DiGenova had spent more than two years investigating allegations that Bush administration officials had encouraged State Department officials to conduct an illegal search of Bill Clinton’s passport file during the 1992 general election campaign. DiGenova’s report included several strong statements criticizing the State Department’s mishandling of the passport matter at “virtually every step,” though in the final analysis he concluded that no criminal acts had actually been committed by State Department personnel or anyone else involved.1 As significant as DiGenova’s specific findings in the passport files case were, however, what drew the most attention was his overall commentary on the use of the independent counsel law in this and other cases where the alleged crimes seemed minor: “A substantial case can be made that had the . . . investigation been conducted in a more deliberate fashion, with greater attention to the facts developed, no referral to the Department of Justice would have been made, and no independent counsel would have been sought or appointed.”2 DiGenova’s analysis of the circumstances that led to his own appointment, which was critical of the reasons for resorting to an independent counsel, was strikingly candid. Most independent counsels seek to justify their role in the process by following every lead—no matter how small—and by conveniently ignoring significant considerations (such as the dollar cost of the investigation or the political costs already borne by the targets) that under normal circumstances would militate against continued aggressive investigation of charges by prosecutors with limited resources. Yet DiGenova stunningly did just the opposite, albeit after his office had spent $2.2 million in taxpayer money to reach his unusual conclusion. DiGenova’s criticism of the earlier phases of the investigation focused on the mostly chaotic efforts of State Department Inspector General Sherman Funk to What’s a Little Prosecution among Friends? • 135 meet an arbitrary investigation deadline imposed by statute. Funk’s struggles resulted in premature calls for the appointment of an independent counsel. Indeed, DiGenova’s investigation, which convinced him that his own appointment had been unnecessary, helped lay the groundwork for more widespread criticism of the process nearly a decade later, during congressional hearings that preceded Congress’s decision to allow the statute to lapse in June 1999. The Office of the Attorney General and other internal investigators expressed frustrations similar to DiGenova’s over the haphazard conduct of preliminary investigations that had preceded the appointment of other independent or special prosecutors. Since Watergate, the threat of a special prosecutor seems to lurk around every corner of the political system. An outer circle attorney general offers the best hope of effectively distinguishing between the unusual cases that require a special prosecutor and the vast majority of other cases that do not. The downside of appointing an outer circle attorney general is that the head of the Justice Department may be forced to render decisions that make the White House and its allies uncomfortable. Such decisions may in turn make the attorney general an outcast within his own administration, unable to influence policymaking, judicial appointments, or other areas of public interest. Yet our current system, which relies so heavily on the special prosecutor mechanism as a backstop to gain public confidence, requires that administrations make that tradeoff. in search of due Process In Due Process of Law: A Brief History, scholar John Orth draws upon English common law and the law of ancient Rome to establish a fundamental proposition of due process: that no one may be the judge of his or her own affairs.3 According to Orth, judicial review in America was a natural outgrowth of this principle. Yet the focus on judicial review ignores other critically important decisions that prosecutors make before any form of judicial review even arises: (1) whether to launch a preliminary investigation in the first place, (2) whether to seek a formal indictment against a suspect, and (3) how to frame the charges against a defendant. In a case of alleged political corruption, the decision by a prosecutor to name someone publicly as a suspect, or to launch the investigative process against such a person, may well ruin the target’s career, regardless of how the case concludes. At a minimum it makes life exceedingly difficult for...

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