If I had to make a list of all the people in the world who might best understand the risks of appointing a special counsel to pursue crimes in the executive branch, it would probably start with Lewis "Scooter" Libby and Bill and Hillary Clinton and proceed to include Elliott Abrams. I admire and like Mr. Abrams and agree with him on many things, but I was surprised to see his post at the Council on Foreign Relations that seems to call for a special counsel to investigate national security leaks "out of the Obama administration" (the assumption is the leaks are from the administration rather than from Congress or Congressional staff). Mr. Abrams writes:
There are many issues here, but one of them is whether Democrats in Congress, and Democrats who served as officials in previous administrations, will take this intelligence crisis seriously. That means demanding a special counsel to investigate (rather than leaving it to an Obama partisan and subordinate like Eric Holder)....
The law that authorized the sort of constitutionally questionable (if one agrees with the Scalia dissent in Morrison v. Olson) independent counsels such as Lawrence Walsh (Iran-Contra) and Kenneth Starr (Whitewater) that hounded presidential administrations past was allowed by Congress to expire. That was a wise move. The special counsel of which Mr. Abrams now writes is a slightly different creature, reporting not to a federal court or judicial panel but within the structure of the Justice Department, as Patrick Fitzgerald did in the Victoria Plame leak probe that jailed Judith Miller and that eventually ensnared Scooter Libby.
Mr. Abrams was pardoned by George H.W. Bush in 1992 after pleading guilty in 1991 to two misdemeanor charges of withholding information from Congress in a case brought by Mr. Walsh.
Mr. Abrams is concerned about the risks to national security posed by politically motivated leaks. Such risks are not to be minimized. But politically motivated prosecutions and investigations also pose national security risks, the risks of distracting or crippling an administration or of sapping its boldness, as Justice Scalia put it in that dissent. Anyway, I can understand how someone who has been on the receiving end of one of these investigations would want his political opponents to experience the unpleasantness of it, but of all the lines of possible attack against the Obama administration, I don't think this is a particularly promising one. If it works and the Republicans win the presidency in part because of a political-criminal scandal over leaks, it won't be long before the Democrats are clamoring for a special counsel to investigate some Republican misdeed, real or imagined.
None of this means that the rule of law should not apply to government officials. But if the voters really don't trust a president or a Justice Department to administer and enforce the rule of law impartially, and if state or local law enforcement authorities can't fill the gap, the best remedy is probably replacing the officials in an election rather than trying to appoint some theoretically "independent" prosecutor within a constitutional system that makes the president the chief of the entire executive branch. It's hard enough attracting qualified people to government service without exposing them, as a matter of routine, to the risk that they'll have to defend themselves against prosecutors appointed especially for the purpose of catching them.