Report or No Report: That Is the Question
Greg Sargent has an interesting article in the American Prospect on the issue of whether or not a report can be issued detailing the findings and decisionmaking process for charging (and not charging) Administration officials caught up in the Traitorgate investigation.
The focus of the article is on whether or not Alberto Gonzales, the AG, can issue a report based on the Code of Federal Regulations section that establishes how a Special Counsel operates. (28 CFR 600 series [available as text and/or PDF docs])
I read through the article and did a run-through of the CFR as well. I think there is no question that a briefing for Congress could be done, and perhaps even a general report at the end at the discretion of the Attorney General for the public.
However, in this case, because Gonzales has recused himself, I think an argument could be made that the attorney supervising the probe — the guy to whom Fitz is reporting now (used to be James Comey, and now is David Margolis) — would be the one who would decide on this.
Comey transferred supervisory authority, without limiting the scope of Fitzgerald’s power, to Margolis on August 12, 2005 in this letter. (warning: PDF link) (For further information about Margolis, take a peek at Mark Kleiman’s post at the time of the appointment — very helpful info.)
This is why: once you have recused yourself for an ethical conflict of interest, that should mean that you are recused from all decisions pertaining to the matter. Period.
There will be some argument that once the probe has ended, then that recusal ends as well — but in a public interest and public trust question, I think a very good argument could (and should) be made that someone who was “Chinese walled” from the matter while it was ongoing for political and personal reasons should not, therefore, make decisions on a matter where political and personal considerations could influence whether or not information becomes public.
Also, I would argue that the decision ought to be made by the DOJ person who is a disinterested party appointed to supervise the matter. Since the purpose of the rules was to prevent partisan activity, either in overzealous prosecution or in underdone prosecution, I would argue that the same spirit should apply concerning who decides what information, if any, becomes part of the public record — either in Congress or through a public report on its own.
Specifically, it is 28 CFR 600.9(c) that piqued my interest in this:
(c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.
In this case, Margolis has been given, for all intents and purposes, the “Acting Attorney General” position in terms of being the person to whom Fitzgerald reports; the person at DOJ from whom Fitz is to seek guidance, recommendations and such; and the person who oversees the actions of Fitz and his team to be certain that they are complying with the requirements of 28 CFR 600.
Thus, it should be a determination made by David Margolis, and not Alberto Gonzales, as to whether or not a public report should be issued at the conclusion of Patrick Fitzgerald’s investigation.
The determination on what the public should or should not know about criminal and otherwise questionable conduct, which may have been condoned and/or encouraged at the highest levels of the Administration, should be made by a party who does not have a personal or political interest in the outcome of the case. That person should not be Alberto Gonzales, who has already declared his ethical conflict of interest in the matter — that person should be David Margolis.
I still think that this is a long way off, considering how many rumbles about Rove alone we have been hearing, but it doesn’t hurt to start discussing this now. Especially since, whatever happens with the criminal investigation, the political tendency in the GOP will be to immediately sweep all of this under a big ole rug — whether or not a whole bunch of sunshine would better serve the public.
My vote is for a whole lotta sunshine. We have a right to know what members of our government were or were not doing to stifle dissent from an American citizen to cover their own asses.