A Job for the House

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The New York Sun

As Washington wrestles with the question of a special prosecutor to look into the IRS scandal the thing to think about is the boldness of the president. This is a phrase that we first read in the warning about independent prosecutors written by Justice Scalia. It was back when he was dissenting in the case known as Morrison v. Olson, in which the court okayed the idea that there could be set up in Washington a prosecutor that is independent of the executive branch. Justice Scalia warned of the danger that unleashing an uncontrollable prosecutor against a president could shake his courage. “Perhaps the boldness of the President himself will not be affected — though I am not so sure,” he warned.

Lest it seem like a theoretical point, feature what happened in the years thereafter. An independent counsel, Judge Starr, was sicced on President Clinton. Let us leave aside the question of whether the President deserved his fate; he was acquitted by a jury of senators presided over by the Chief Justice of the United States. During his years of travail, however, he was driven nearly to distraction, and just how dangerous it was we learned years later, when the report came out on what happened on 9/11. The report sketches how the man to whom President Clinton delegated national security, Samuel “Sandy” Berger, at least four times put off or obstructed or failed to authorize attacks on al-Qaeda.

At the time we noted that neither Mr. Berger nor any other American was to blame for the deaths of Americans on September 11, 2001. The moral fault lies only with the terrorists, not with the victims. But, we asked, “why was it Mr. Berger rather than President Clinton himself making all these judgment calls?” —calls that turned out to have been errors of judgment. It turns out, the 9/11 report made clear, that these decisions “were made by the Clinton administration under extremely difficult domestic political circumstances. Opponents were seeking the president’s impeachment.” Whatever one’s view of the underlying scandal, we noted, it is hard after the 9/11 report to deny that one of the costs to the country was a “preoccupied president.”

That is, exactly what Justice Scalia warned against came to pass during the years leading up to 9/11. The boldness of the president, we noted, “had been lost, and the man left in charge, Mr. Berger, was not up to it.” The lesson, we said at the time, was that we needed “to carry on our national politics with an eye to protecting the boldness of our leaders and particularly in a time of war.” We don’t suggest that Congress let the current crisis pass; the matters before it are extremely serious. We simply suggest that the correct investigating agency to look into the president’s actions has already been sworn, and it is the 113th United States House. Let it move, one way or another, with dispatch. That is its responsibility.

What we don’t want is this crisis to be placed in the hands of a special or independent prosecutor. The danger there is precisely what happened during the Clinton years — and the prosecutor will be unable to resist the temptation that arises from his special or independent nature to continue on and on, to build a large office and take forever to reach a conclusion. Even such an honest and wise constitutionalist as Judge Starr could not resist. The danger in the current crisis is that the drama will be dragged on indefinitely — and that what boldness there is to this president could be lost not only when we are at war but in our hour of greatest danger.

The New York Sun

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