The View From Here . . .

As this is written, special prosecutor Patrick Fitzgerald is still considering indictments against White House officials, most notably Karl Rove and I. Lewis ("Scooter") Libby in connection with the alleged outing of former CIA operative Valerie Plame. No one exactly knows what charges are being considered, although the speculation is leaning toward matters arising from the inquiry itself, like perjury and obstruction of justice, rather than violations relating to the original subject matter of the investigation, which are very hard to prove.

While some Democrats can think of little more desirable than the thought of Mr. Libby and especially Mr. Rove in handcuffs, a number of thoughtful observers have considerable concern with this investigation.

Part of the problem relates to the role of special prosecutors in our political system. Indeed, it was not surprising that there was a bipartisan consensus a few years ago to end the general independent special prosecutor law. (Technically, Mr. Fitzgerald is an appointee of the Justice Department.)

Special prosecutors do have the advantage of being independent and not beholden to the party in power. In certain situations involving endemic corruption, their use is probably essential. On the other hand, they can lead to overprosecution of charges that might normally be ignored. While regular prosecutors, who are inundated by possible cases to pursue, frequently exercise discretion in declining to bring charges, a special prosecutor only has a single matter to investigate. This means a very high level of concentration on every possible allegation and an inclination to bring charges - any charges -- for fear of being accused of wasting time and resources.

It is not just partisan Republicans, or supporters of President Bush's policies, that have expressed significant misgivings about this investigation. New York Times columnist Nicholas Kristof, while saying that "flat out perjury must be punished", notes that "if the evidence is more equivocal, then indictments would mark just the kind of overzealous breach of prosecutorial discretion that was a disgrace when Democrats were targeted". Mr. Kristof's colleague, Times columnist John Tierney, who says he would have voted against the Iraq war if he were in the Senate, argues that the special prosecutor "was assigned to look for serious crimes, not to uncover evidence that bureaucrats blame other bureaucrats when things go wrong."

Another reason to be dubious about the Fitzgerald investigation is its potential danger to journalistic freedom. As Slate Magazine's Jacob Weisberg, not usually thought of as a friend of the White House, explains, the potential use by the prosecutor of little used statutes like the Espionage Act to criminalize White House leaks poses real dangers for press freedoms. "Already, Fitzgerald's investigation has proved a disaster for freedom of the press and freedom of information. Reporters, editors, and publishers have been put on notice about the legal risk of using blind sources, which most consider an essential tool of news-gathering. Any ambiguity about a press privilege under federal law has been resolved, not in favor of the media."

In fairness, Democrats can claim with some justification that Republicans used the same type of destabilizing attack on the Clinton Administration in the late 1990's, with initiation of impeachment proceedings and support of a prosecutor famously accused of being overzealous, that the Bush White House is now facing. But unless Mr. Fitzgerald has far more evidence of serious wrongdoing than he appears to have, the country as a whole, and indeed future Democratic administrations, may be better served if the special prosecutor holds his fire.