Prosecutorial Discretion, Continued -- A Special Counsel?

Marty Lederman

In his post below, Jack implicitly raises some interesting questions about what a DOJ or NSA employee should do if she is privy to a classified program that appears to her to be unlawful. I don't really know the answer to this question. I come from a culture (OLC) where leaking even attorney-client information is unheard of, and where leaking classified information is unthinkable. If one has already gone all the way up the chain of command, and the President and the AG have rejected the argument of illegality -- and the secrecy is preventing the courts and the legislature from overseeing the Executive -- what is one to do, if firmly convinced that gross illegality is occurring? Hard question. My inclination is to say that employees just have to grin and bear it, and refrain from revealing classified information (that's what I would do -- but again, I come from a culture of confidentiality); but then again, if the classified information is being kept from the legislature (or revealed only to eight legislators who in turn can't reveal it to anyone else, including staff and legal counsel), and all employees abided by the rules not to disclose classified information, there would never be any way of checking an unlawful Executive. What's the solution here?

On a somewhat different point, Jack makes a passing reference to the notion that the Attorney General should appoint a special prosecutor to investigate the NSA wiretapping program. The ACLU makes a very serious proposal to the same effect.

The notion of a special counsel here seems to me to be misplaced, even if the prospect were not (as it is) politically unthinkable.

In order for the Attorney General to appoint a special counsel, the AG must "determine[] that criminal investigation of a person or matter is warranted." 28 C.F.R. 600.1. The AG can't possibly make such a determination here because the AG, and the President, and OLC, have already determined that the conduct in question was lawful. Indeed, without DOJ's sign-off (of "form and legality," required for all Executive Orders), the President would not have issued the orders authorizing NSA to engage in the wiretapping in the first instance.

Don't get me wrong: I've been complaining as loudly and as consistently as anyone that DOJ and the President were dead wrong on the law, and that the NSA program was unlawful. (Just scroll down.) But obviously, that's not DOJ's view, and therefore there's nothing, from DOJ's perspective, for a special counsel to investigate. (And the Special Counsel him- or herself would have nothing to do, because such Counsel must "comply with the rules, regulations, procedures, practices and policies of the Department of Justice," 28 C.F.R. 600.7(a), which "policies" presumably include the DOJ legal opinions concluding that the NSA wiretapping is lawful. Indeed, even in the days of the independent prosecutor, my understandng is that the prosecutor was not empowered to act on a view of the law that was contrary to the views of the President and the Attorney General. See Morrison v. Olson, 487 U.S. at 671-672.)

Moreover, even if the AG were to be persuaded that DOJ's previous reasoning was wrong, and that the program is unlawful, he could not possibly bring criminal charges against anyone who previously acted in reasonable reliance on DOJ's prior conclusion of legality.

Thus, this is a case for Congress to tell the Executive, in one form or another, that it refuses to allow its statutes to be violated with impunity. Another possibility, of course, is that courts may start excluding evidence that was the fruit of an unlawful wiretap -- but I doubt that such holdings (short of Supreme Court holdings, anyway) would stop the Executive from going forward with the wiretapping program.
Posted 4:04 PM by Marty Lederman [link]