Justice Could Decide Leak Was Not a Crime
By Mike Allen
Washington Post Staff Writer
Friday, January 2, 2004; Page A04
CRAWFORD, Tex., Jan.1 -- The Justice Department investigation into the leak of a CIA agent's identity could conclude that administration officials disclosed the woman's name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week.
"It could be embarrassing but not illegal," said Victoria Toensing, who was chief counsel of the Senate Select Committee on Intelligence when Congress passed the law protecting the identities of undercover agents.
The three-month-old investigation entered a new phase Tuesday when Attorney General John D. Ashcroft recused himself and the Justice Department announced the appointment of a special prosecutor, U.S. Attorney Patrick J. Fitzgerald of Chicago. Democratic presidential candidates complained that the change came too late and did too little to protect against a conflict of interest.
President Bush, when asked Thursday about the probe, said he did not know why Ashcroft had recused himself now.
The Intelligence Identities Protection Act of 1982 specifies that the revelation is a crime only if the accused leaker knew the person was a covert agent. The July newspaper column by Robert D. Novak that touched off the investigation did not specify that Valerie Plame was working undercover, but said she was "an agency operative on weapons of mass destruction." That raises the possibility that the senior administration officials he quoted did not know Plame's status.
"The fact that she was undercover is a classified fact, so it would not be unusual for people to know that she was agency but not know she was undercover," Toensing said.
Plame's husband, former U.S. ambassador Joseph C. Wilson IV, had undertaken a volunteer CIA mission that undercut reports that former Iraqi president Saddam Hussein sought uranium from Africa. Wilson became a public critic of the White House case for invading Iraq, and administration officials have said the revelation about Plame was apparently designed to diminish Wilson's credibility by suggesting he got the assignment because of his wife.
Toensing said that administration efforts to encourage reporters to look into the connection between Plame and Wilson could have been "typical Washington talk" and would not "even begin to qualify as a dirty trick."
Wilson said he believes the White House should be subject to political accountability, as well as legal accountability, if prosecutors discover Bush's aides abetted an attempt to undermine his reputation. "The question is whether the president is going to accept having people on his staff who have engaged in behavior which has to be inconsistent with his own promise to change the tone in Washington," Wilson said. "Just because it isn't criminal doesn't make it ethically acceptable."
Deputy Attorney General James B. Comey Jr., who announced the new leadership of the investigation, gave no indication of where it was heading. FBI agents have interviewed a variety of senior administration officials and have asked about the possible involvement of top White House aides, including Bush's senior adviser, Karl Rove.
When White House press secretary Scott McClellan was barraged with questions about the case this fall, he said repeatedly he knew of no Bush aides who had "leaked classified information." McClellan would not answer questions about the ethics or propriety of encouraging reporters to write about Plame.
"The subject of this investigation is whether someone leaked classified information," McClellan said. Another time, he said, "The issue here is whether or not someone leaked classified information." McClellan left open the possibility that White House aides had discussed Plame with the media.
A senior administration official said Bush's aides did not intend to mount a legalistic defense, but two GOP legal sources who have discussed the case with the White House said the careful, consistent wording of McClellan's statements was no accident.
"If they could have made a broader denial, they would have," said a lawyer who is close to the White House. "But they seem to be confident they didn't step over the legal line."
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