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By Donna Leinwand, USA TODAY
WASHINGTON — Any decision to appoint a special prosecutor to investigate Attorney General Alberto Gonzales for allegedly lying to Congress rests with his subordinate, Solicitor General Paul Clement, who has few rules to guide him.
Four Senate Democrats have asked for a special counsel to determine whether Gonzales was truthful when he testified about a warrantless domestic spying program and the dismissals of nine U.S. attorneys. In the case of the domestic spying, an investigation would determine whether Clement's boss — Gonzales — or former deputy attorney general James Comey is telling the truth. FBI director Robert Mueller also appeared to contradict Gonzales' testimony last week. "If there ever was a situation that was tailor-made for an independent counsel, it would be for an investigation of an attorney general," says Ty Cobb, a former federal prosecutor who once served as special trial counsel for an independent investigation of officials at the Department of Housing and Urban Development. "It would be hard to imagine most Americans would believe that the Justice Department could impartially investigate its leader." The decision about a special counsel rests with Clement because Gonzales and his outgoing deputy, Paul McNulty, have recused themselves from the investigations. The No. 3 official at the Justice Department is serving in an acting capacity in that position and doesn't have the authority. Sens. Charles Schumer of New York, Dianne Feinstein of California, Russell Feingold of Wisconsin and Sheldon Whitehouse of Rhode Island — all members of the Judiciary Committee — wrote to Clement last week to request a special counsel. Committee chairman, Sen. Patrick Leahy, D-Vt. and the panel's top Republican, Sen. Arlen Specter of Pennsylvania did not sign the letter. Leahy has given Gonzales until Friday to correct or clarify his testimony. Specter said a perjury investigation is premature. Justice Department spokesman Dean Boyd said Clement is reviewing the letter. The Justice Department has not announced a decision. Clement's decision is governed by regulations created in 1999 by the Justice Department in consultation with Congress after the Independent Counsel Act lapsed and Congress did not renew it, says Neal Katyal, a Georgetown University law professor who wrote the guidelines while he was an attorney at the Justice Department. Clement, whose usual job is to represent the government in cases before the Supreme Court, should determine whether there is a credible reason to believe Gonzales may have committed a crime. But the regulations don't define a credible reason, Katyal says. "In a case like this, with potential wrongdoing by the attorney general, the standard has to be a lower one," Katyal says. "The regulations have two goals. One is to get to the bottom of the truth. Has a crime been committed? The second is to preserve the appearance of justice." Erwin Chemerinsky, a constitutional law professor at Duke University, says this case meets the standard. "This is the classic case where it has to be looked at by someone other than the Justice Department," Chemerinsky says. Clement, who could delay a decision indefinitely or reject the senators' request, would supervise the special counsel and the investigation, Katyal says. "He's still going to call the shots," Katyal says. Gonzales has testified that there was no internal dispute inside the Bush administration about the surveillance program. Comey told Congress that he, former attorney general John Ashcroft and Mueller had serious reservations about it. If Leahy and Specter do endorse the letter, "it's a pretty serious request from the Judiciary Committee," Cobb says. Patrick Fitzgerald, the U.S. attorney in Chicago, served as the last special counsel. He was appointed Dec. 30, 2003, by Comey, then deputy attorney general, to investigate the disclosure of the identity of CIA covert employee Valerie Plame. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, was convicted of perjury in connection with the leak. 
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