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August 30, 2015 / 15 Elul, 5775
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Congress Must Pursue Leakgate

On its face, it might seem that Attorney General Eric Holder’s appointment of two veteran federal prosecutors to mount a criminal investigation into the recent spate of national security leaks is a step in the right direction. Indeed, those appointments seem to have quieted congressional calls for the appointment of a special independent investigative counsel and holding congressional hearings into what will doubtless come to be known as Leakgate. Yet there are some issues that come to mind.

For one thing, while we have no reason to doubt the integrity or qualifications of the two attorneys, they will be working within the confines of and answerable to higher-ups in the Justice Department, which, after all, serves as the administration’s legal adjunct. And they will have to work with the ordinary powers prosecutors have at their disposal.

It will be recalled that it was the extraordinary powers granted to the special prosecutors in the Watergate episode – Archibald Cox and Leon Jaworski – that engendered much litigation and conflict but also enabled them to develop and follow leads in order to make headway in the case.

But more significant is that while the leaks certainly require attention in terms of criminal law, they surely have an overriding political aspect, raising as they do the possibility of possible Obama administration involvement – something especially significant now, in the run up to the November presidential election.

Holding public officials politically responsible – or exonerating them – for leaking to journalists in advance of an election is primary. Yet the secretiveness attendant to a criminal investigation, which will feature the empanelling of grand juries, issuance of subpoenas and interviews of potential witnesses, will also tend to dry up the public flow of information.

Those with inside knowledge will doubtless be counseled by their attorneys to keep their silence outside of the criminal investigation. And this would be true of a criminal investigation by either regular or special prosecutors. So the chances are the public will hear nothing more about the leaks until after the election, when the Justice Department investigation is concluded.

A further lesson from Watergate also presents itself. A robust and very public set of Senate hearings chaired and co-chaired by Senators Sam Ervin and Howard Baker were conducted at the same time as the criminal investigation – which resulted in a number of convictions of senior Nixon administration figures – and which certainly did not hamper it in any way. More to the point, the process of gaining those convictions was not compromised by the public hearings.

Voters have a right to know how the leaks of such important secrets came about, particularly as they prepare to cast their ballots in November. Properly designed Watergate-type congressional hearings would seem eminently appropriate to the task at hand.

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