Heritage of Watergate

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As finally passed, the law compels the Attorney General to begin a preliminary investigation whenever he "receives specific information" that a high federal official (the President, Cabinet Secretaries, senior White House staffers, the director of the CIA" and others) "has committed a violation of any federal criminal law."

The only exception is for "a petty offense," punishable by less than six months in jail. Simple possession of cocaine can draw a one-year sentence. The Attorney General must —not may—ask a panel of three federal judges to appoint a special prosecutor within 90 days unless the preliminary investigation determines the charges to be so flimsy that they do not warrant a deeper probe.

Trouble is, say Justice Department officials, there is almost no way for a preliminary investigation to establish that. Under the department's interpretation, it cannot subpoena witnesses, for example, or enter into plea bargaining. Both powers are granted to the special prosecutor. In consequence, top Justice officials fear, they may be forced to appoint a special prosecutor in the Jordan case.

Critics charge that the law practically invites opponents to smear high officials by making charges that, although false, cannot be disproved during a preliminary investigation. Defenders of the law argue that in some cases only exoneration by a special prosecutor can free a Government leader of the suspicion that allegations against him were covered up. But Justice officials last week were admitting that the very appointment of a special prosecutor would convince many Americans that Jordan had done something wrong.

Another case involving Jordan last week showed why a special prosecutor is sometimes needed. The Justice Department has impaneled a grand jury to investigate charges by a Georgia businessman that fugitive Financier Robert Vesco attempted to get Jordan and Charles Kirbo, a Carter adviser, to block his extradition from the Bahamas to the U.S., where Vesco faces trial for fraud. Since the probe began before the Ethics Act was passed, the Justice Department decided that the law did not apply. Last week Ralph E. Ulmer submitted to Federal Judge William B. Bryant his resignation as foreman of the grand jury and accused the Administration of "duplicity." Among other things, he said, "information was withheld from the grand jury" and "a witness was encouraged to be less than candid with the FBI." Whatever the truth of these charges, they are exactly the kind of ugly accusations that appointment of a special prosecutor is supposed to dispel. ∙