In an op-ed today in the New York Times, I argue that a special prosecutor should be appointed to look into the accusations of wrongdoing regarding the U.S. Attorney scandal. I generally find independent prosecutors of any stripe worrisome (and wrote an op-ed with my colleague Viet Dinh about why we thought in the early days of Plame-gate a special counsel for that investigation was unwarranted until more facts could be developed). But here, the allegedly close involvement of the Attorney General makes this case quite a bit different. That is particularly so because this Attorney General is viewed as too close to the President, whether rightly or wrongly. (Incidentally, I wonder whether it would be a good idea to have a culture, and perhaps even a Senate advisory rule if it might be done in a way that might be constitutional, that 60 votes are necessary to confirm an AG -- because the AG is different than other cabinet officers and it is helpful to have "buy in" from a good chunk of the other party on an appointment.)
In any event, there is at least one thing in the op-ed that I wish had been clearer. The piece included the following paragraph:
Unfortunately, both sides have incentives to resist such a proposal. The Democratic Congress may want to run the show, delaying a resolution for months and leading to a distracting constitutional showdown about executive secrecy. Members of Congress might also want to use the scandal to highlight the politicization of the Department of Justice in other matters — tobacco litigation, terrorism investigations and so forth. (The fact is, though, that because a special counsel would investigate only criminal wrongdoing in the United States attorney scandal, appointing one would give Congress more time to focus on these other matters.)
Some read that to mean that I was saying that I thought there was actual wrongdoing with the way DOJ has conducted the tobacco investigation. I was actually just trying to say that whatever the areas of alleged wrongdoing may be that Congress wants to investigate, they shouldn't grab hold of the US Attorney scandal to try to investigate those other areas.
Folks who are looking into tobacco should know two things, however, that strongly suggest that no wrongdoing occurred there. First, Peter Keisler has vouched in the strongest of terms that nothing untoward was involved. Folks can disagree with Keisler's ideology, but in terms of an upright and honest advocate and government servant, in my judgment there is no one better. The fact that he believes the DOJ tobacco decisions were appropriate goes a long way toward reassuring me (and I've been on the other side of Peter for years in litigation and argued the Hamdan case in the DC Circuit against him). Second, Jack Kenney, one of the most legendary officials to ever grace the DOJ building, has examined the matter and also concluded that the decisions were proper. Jack has a mere 56 years of experience at DOJ. His letter is worth reading. None of this is to say that DOJ has been free from politicization over the past 6 years, my sense from many of my friends in the Department is that it has. But tobacco does not appear to be one of those areas.