an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Prosecutorial Discretion, Continued -- A Special Counsel?
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
by Marty Lederman [link]
In case the connection's not obvious, Felt comes to mind because one theory about his motive for leaking in Watergate is over domestic spying and executive control. Felt participated in domestic spying (for which he was prosecuted and pardoned under Reagan), although I've read in news reports around the Deep Throat revelation that he strongly objected and even obstructed this activity at the time--and he became a leaker around when Nixon made what seems to have been an unusual appointment of what seems to have been a personal loyalist from outside the FBI to head that Bureau, instead of Felt (who as next in line might well have been expecting to keep Nixon's domestic spying ambitions in check, until thwarted by Nixon's surprise appointment).
A day later, and now in the news there is current Lockheed executive Comey, depicted in ardent opposition to even the Ashcroft era continuation order approving extension of the 45-day review of the blanket wiretaps. Comey gave us Fitzgerald before transferring his employ to the defense contractor arena. One supposes Gonzales will depose Comey in the search for the Felt-equivalent. It is striking that in both matters: the one which Fitzgerald is investigating now in his 2nd grand jury term, and the case of the as yet unrevealed leaker of the wiretap policy, such inordinate criticism is being mounded upon the media. Since neither mystery is yet as solved as the matter in which Felt was involved, the anti-media stance may be nominal; but, at first impression it seems telltale, and unfortunately, fits the pattern of the headstrong executive prodrome. Which arrives at Marty Lederman's endpoint, seemingly: congress. Now that congress has sunsetted the independent counsel, perhaps the ensuing hearings, if any actually is held in the matter of the wiretaps and further phase-two hearings in the case which Fitzgerald is pursuing, will inform a more cognizant congress that an adjustment is needed to restructure this kind of investigation's launch so a fact finding can have some legal teeth and substantive effects. January 13 in private chambers at the Supreme Court a rule 26 plea is being heard on habeas and possibly torture related matters involving a case which the fourth district court last week tossed to the Supreme Court. Much like the impression of disenfranchisement in the wiretap policy, the request for rulemaking or rule interpretation in secret session at the Supreme Court also evokes the potential for sidelining two branches out of the checking and balancing process of governance. In a redundant manner, these tacks both lead to a similar perceived architecture of the condition of government approaching some form of martial law, albeit a limited rendition. That would be rendition in the music terminological sense, rather than the new spy jargon phrase which has become currency.