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Special Prosecutor or Ombudsman?
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13454 |
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EDITORIAL
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| Issue
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9 / 1987 |
2,135 Words |
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Morton A. Kaplan
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The latest wrinkle in constitutional procedure - the office of a court-appointed special prosecutor - was instituted in the wake of the Saturday Night Massacre, when Richard Nixon fired Archibald Cox during the Watergate investigation. Cox had been chosen by Attorney General Elliott Richardson to avoid the appearance of impropriety that might have arisen from the investigation of the president by a member of his official family.
Congress later decided, against the advice of President Ford's attorney general, Edward Levi, to establish a procedure by which the attorney general recommends that a court appoint a special prosecutor who would not be subject to removal by the president.
The strongest argument in favor of a court-appointed special prosecutor is that the public could suspect that an investigation of a government official might be under the influence of the administration being investigated. The purpose is noble, but might there not be a better solution to this problem?
The history of the special prosecutor has been one of zealotry. The object of this office seems to have been to find a crime to prosecute rather than to determine whether a criminal procedure is the proper remedy to a discovered delict. This zeal has been carried to such extremes that one prosecutor has attempted to undermine the diplomatic immunity of the Canadian ambassador.
The problem with zealous prosecutorial attitudes is that not a day goes by when laws are not benignly broken by government officials; the government could not run otherwise. For example, by following the book of regulations religiously, the Italian postal "strike" in the 1970s shut down mail deliveries. By similar measures, the New York subway strike in the 1960s disrupted subway transit. When systems work, it is often because laws or rules are broken and often by individuals who have no formal authority to do so.
Let me choose two examples from my own army experience. A 1945 regulation specified that a soldier who was forty-five years old was eligible for discharge. One fellow came through my unit from the hospital who had been wounded four or five times. He was within thirty days of being forty-five years old. According to the regulations, he was to be sent back into combat. Therefore we "lost" his records for thirty days.
During the Okinawa campaign, General Buckner complained that we were sending him too many limited-duty replacements. Our general then ordered the medics to remove this information from the records. Since any complaint through channels would have been ignored, we surreptitiously reentered the data. And we kept doing so even after our general discovered it and threatened us with combat duty.
These were benign violations that in a properly functioning system would not be prosecuted. Other cases that were less benign still might deserve only administrative action. Prosecution should be reserved for cases that are properly criminal.
Yet that is not the kind of discretion the office of special prosecutor exercises. Instead there is a game in progress, that it is determined to win. This is also the case with congressional investigative lawyers.
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