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Just This Once, Could We Try Following the Constitution?



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I have great respect for Senator John Cornyn (R., Texas). Furthermore, I think you’d have to go a long way to find a more consistent critic of the Obama administration’s recklessness as custodian of the nation’s defense secrets than I have been. Yet, if I were asked to vote on the legislation proposed by Senator Cornyn and Senator John McCain to force the Obama administration to appoint an “independent prosecutor” to investigate intelligence leaks to the New York Times, I would, without hesitation, vote “nay.” 

The institution of “independent prosecutor” is an unconstitutional monstrosity. If it is actually independent of the executive branch, it is constitutionally invalid because, as Justice Scalia explained in his prescient 1988 dissent in Morrison v. Olson, criminal investigation and prosecution are executive functions and the Constitution vests all executive power in the president. Consequently, the only kind of “special” prosecutor President Obama or his subordinate, Attorney General Holder, could appoint would have to be one that answered to Obama and, no doubt, to Holder. That prosecutor would not be “independent” because the only power he would be authorized to exercise is Obama’s power. Congress cannot endow someone else with executive power — the Constitution has given it to the president, period.

As a matter of politics, moreover, Obama and Holder would never satisfy Republicans and the public with any prosecutor they would appoint. The only way they could do so would be to appoint someone of such undeniable rectitude that the matter of his or her being technically beholden to Holder and Obama would be overlooked. That is not going to happen — not with this, the administration that has politicized law enforcement more than any other in history. 

#more#What Senator Cornyn is asking for is thus legally illegitimate and politically implausible. It is also tactically blunderous. An ongoing criminal investigation gives witnesses a justification for refusing to cooperate with any congressional inquiry into the leaks. They end up saying that, because of grand-jury secrecy or the advice of counsel, they cannot provide any information. The goal of holding the Obama administration politically accountable for acting irresponsibly with the nation’s vital secrets would become difficult, if not impossible, to attain. 

The Constitution gives Congress plenty of ways to hold the administration’s feet to the fire while performing the essential role of spotlighting for the public the inexcusable things the administration has done. It can conduct hearings, call witnesses — the Times stories make obvious which witnesses ought to be summoned — and ask them under oath about their handling of classified information and conversations with the media. If the administration stonewalls, as it is doing in Fast & Furious, it can start cutting the administration’s funding and begin impeachment hearings to inquire further about whether unfit executive-branch officials should be removed from office — which is exactly what Congress should be doing in connection with Fast & Furious instead of the ongoing “contempt” theater.

I am not saying that criminal prosecution is unimportant. I personally think it is unlikely; if, as I suspect, President Obama authorized the disclosures that were made to the Times, there can be no prosecution for disseminating classified information because the president is empowered to authorize disclosures. That is why it is much more important at this stage to hold the president politically accountable than to worry about prosecuting the subordinates who actually did the leaking. But federal criminal law generally applies a five-year statute of limitations to crimes:  There will be plenty of time down the road for a Romney Justice Department, headed by credible attorney general who returns the Justice Department to its traditional rejection of partisanship in the administration of justice, to determine whether there are prosecutable classified-leak cases that merit being indicted.

The other thing to remember about a potential Romney administration is this: It will need to govern. Given the shape we are in, it will need to sweep clean the last four years and make very tough decisions about the future. The worst thing congressional Republicans could do right now to a President Romney’s ability to function is lay the groundwork for the Left to demand the appointment of an independent counsel in connection with every contentious issue — real or manufactured — that inevitably will come up. There are strong legal, political, and tactical arguments for opposing such demands. But if Republicans undermine those arguments now, President Romney and the country will pay a heavy price later.



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