Questions left unanswered

With independent counsel law's demise, public less apt to learn details of political probes


WASHINGTON -- With U.S. troops unable to find expected weapons of mass destruction in Iraq, a group of officials met aboard Air Force Two in mid-2003 to discuss how to respond to the growing prominence of one particular critic of President Bush's Iraq policy. Vice President Dick Cheney was on the flight. So was his chief of staff, I. Lewis "Scooter" Libby Jr.

It was a scene that suggested intrigue. And if it had occurred as part of a past Washington scandal, the investigator who revealed it probably would have included a wealth of details, naming everyone present and laying out what they said.

But when special prosecutor Patrick J. Fitzgerald announced Friday that he was wrapping up his two-year investigation of the CIA leak case, he offered only the barest sketch of the meeting on Air Force Two -- and left many central questions in the case unanswered: Did Cheney help map out strategy with Libby during the flight? Did officials talk about Valerie Plame, the wife of the Bush critic, Joseph C. Wilson IV, and that Plame worked for the CIA?

Was Cheney even at the meeting, or did he sit elsewhere on the plane?

Answering none of these questions, Fitzgerald's 22-page indictment, with its bare-bones outlines of the case, provided a bracing lesson on what major political investigations have become now that they are no longer conducted by independent counsels and on how the culture of rooting out scandal in Washington has fundamentally changed.

Ever since Watergate, special federal investigations of political scandals have often ended with detailed accounts of the inner workings of government. The probes might take years; they might cost millions; but at the end, they often provided a rich, detailed story of the episode in question.

The reason was the independent counsel law, created by Congress in 1978 because it felt the executive branch could not be trusted to investigate itself in cases of alleged abuse and corruption. Independent counsels gave the nation book-length -- even multivolume -- examinations of the Iran-contra affair and of President Bill Clinton's relations with a former intern. But in 1999, Congress chose not to renew the law authorizing them, out of concern that they were being used to pursue partisan witch hunts.

Fitzgerald, by contrast, is a special prosecutor, charged with bringing violations of the law to court, rather than information to the court of public opinion.

His spare account suggests that with the independent counsel statute gone, the public is apt to know far less about the actions of elected officials and government bureaucrats when they are engaged in questionable conduct that does not violate the law.

"My job is to investigate whether or not a crime was committed, can be proved and should be charged," Fitzgerald said Friday as he announced an indictment of Libby on charges of lying to the FBI and a grand jury investigating the leak case.

Because only Libby was charged, he said, he would not be answering many questions about the actions of other officials. Some legal experts see the new practice as a good development, restoring a proper restraint as investigators ferret out information about wrongdoing. Prosecutors should focus strictly on bringing and proving charges in court; watchdogs such as Congress and the press can use its own powers to sort out lapses in judgment by policymakers, this thinking goes.

"There is a trade-off. The public does not automatically get the fruits of the good information that a criminal investigation does gather," said John Q. Barrett, a professor at St. John's University law school in New York and a former associate independent counsel.

At the same time, he said, it can be unfair to people who are investigated but never charged to have their names publicly exposed. And public disclosure of information could violate the "institutional promises" built into the justice system. Grand juries can compel people to testify, for instance, but witnesses are given assurances that their testimony is strictly confidential. Some people said that by releasing a tightly focused indictment of Libby, Fitzgerald had shown that the nation is better off than when independent counsels such as Kenneth W. Starr investigated politicians.

Starr's investigation of Clinton yielded a 445-page account that included substantial information about the president's sexual relations with the former intern, Monica Lewinsky.

Where Fitzgerald released only information that supported the charges in the indictment, Starr's voluminous account led to accusations that he had gratuitously invaded the private life of the president and the first family, and that he had veered far away from his original mission of investigating the Whitewater land deal. Starr said that the details were needed to establish that Clinton had lied under oath.

"Mr. Fitzgerald has proven that we are all better off without an independent counsel law," said Lanny J. Davis, a lawyer and Clinton adviser during the Lewinsky affair.

But others said that system can also deprive the public of crucial information, and that prosecutors can sometimes view their role too narrowly. Public officials should be held to a higher standard of conduct than ordinary citizens and should not complain when the public demands a full and open accounting of their actions, this thinking goes.

Richard B. Schmitt writes for the Los Angeles Times

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