David B. Rivkin Jr. and Lee A. Casey:
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It is clear that, at least by sometime in January 2004 -- and probably much earlier -- Fitzgerald knew this law had not been violated. Plame was not a "covert" agent but a bureaucrat working at CIA headquarters. Instead of closing shop, however, Fitzgerald sought an expansion of his mandate and has now charged offenses that grew entirely out of the investigation itself. In other words, there was no crime when the investigation started, only, allegedly, after it finished. Unfortunately, for special counsels, as under the code of the samurai, once the sword is drawn it must taste blood.
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By being assigned to investigate one individual, or a small group, the prosecutor is deprived of normal constraints such as resource limitations and the perspective of having to choose from a range of cases to pursue. Another vital missing ingredient is supervision. Normally federal prosecutors have political superiors who review their decisions. This is supposed to be the case even with special counsels. Unfortunately, for reasons that are not entirely clear -- but that may have involved some buck-passing by Justice Department officials -- Fitzgerald was specifically excused from even this minimal check on his power and as a consequence was accountable only to himself.
Enough should be enough. The courts will now handle Fitzgerald's allegations against Libby. But in the future, the investigation of high-level misconduct should not be removed from the normal processes of the Justice Department. The U.S. attorneys, and the department's Criminal Division, are fully capable of investigating and prosecuting alleged wrongdoing by important government officials, and can do it with proper perspective. Almost all federal prosecutors are, in fact, career lawyers quite capable of balking if their political supervisors abuse their authority. They should be left alone to do their jobs.
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