Why Did Attorney General Ashcroft Remove Himself From The Valerie Plame Wilson Leak Investigation?
Signs that a Key Witness May Have Come Forward
By JOHN W. DEAN
Tuesday, Jan. 06, 2004
writ.news.findlaw.com
Recently, Attorney General John Ashcroft removed himself from the
investigation into who leaked the identity of covert CIA agent
Valerie Plame Wilson. Since the announcement, there has been
considerable speculation as to why this occurred, and what it
means.
Some think the move suggests the inquiry will be scuttled -- and
Ashcroft is ducking out early to avoid the heat. But that seems
unlikely. The new head of the investigation, Patrick J. Fitzgerald, is
a high profile, well-respected U.S. Attorney, who runs one of the
more important offices in the country, Chicago's. Fitzgerald is also a
close friend of Deputy Attorney General James Comey, who
announced his appointment. It seems unlikely that Fitzgerald was
brought in merely to kill the case.
Others believe that Ashcroft's decision to remove himself suggests
that the investigation must be focusing on people politically close to
Ashcroft, and that Ashcroft thus pulled out because he knew he
would be criticized whatever he did. That is certainly possible.
But as I will explain, I have a slightly different take on what has
occurred and why. Here is what the latest positioning of the tea
leaves tells me.
The Recent Progress of the Plame Investigation
All signs indicate that the Plame leak investigation has been
gaining steam.
As readers may recall, it was in a July 14 column that journalist
Robert Novak revealed that Valerie Plame Wilson was a CIA covert
agent. As I discussed in a prior column, the leak is potentially a
felony, and could violate several laws.
According to The Washington Post, on December 23, minority leader
Thomas Daschle, and the ranking Democrat of the Armed Services
Committee, Carl Levin, sent Ashcroft a letter. The letter demanded
a status report on the Plame investigation, and urged the
appointment of a special counsel. So Democrats have kept the heat
on, but that does not strike me as the probable reason for
Ashcroft's decision.
On December 26, the Post reported that the investigation was, in
fact, gaining momentum, and the Justice Department had added a
fourth prosecutor "specializing in counterintelligence" (which I
translate as meaning he had all the security clearances needed to
work on a case like this). It also reported that "FBI agents have
told people they have interviewed that they may be asked to
testify before a grand jury." Empanelling a grand jury empowers
prosecutors both to serve subpoenas, and to gather testimony
under oath.
On December 30, Deputy Attorney General Comey held a press
conference to announce that Ashcroft had removed himself from
the investigation. Comey said that the investigation would instead
be headed by Fitzgerald. Of note to me, was Comey's comment
that "this has come together really in the last week" -- meaning,
apparently, the week of December 22-26 -- the Christmas holiday
week during which the FBI raised the prospect of a grand jury.
As Comey explained, given Fitzgerald's U.S. Attorney status --
which will be continuing concurrent with his "special counsel" status
-- there will be no interruption in the investigation. Comey noted
that if Fitzgerald "needs to issue a subpoena involving the media,
for example, or if he wants to grant immunity to somebody," he will
not have to obtain approval of the Justice Department. (The
reference to the media certainly hints at subpoenaing Novak's
phone records, or calling him before the grand jury -- again
suggesting progress in the inquiry.)
On January 2, NBC News reported that the FBI was focusing on the
White House as the probable source of the leak. It also reported
that the FBI had asked White House staffers "to sign a form
releasing reporters from any promises of confidentiality they may
have made to their sources."
Not only does none of this activity indicate an investigation that is
being scuttled, but it clearly implies something noteworthy has
happened in the investigation.
The New Phase Of the Investigation
Not wanting to hype the situation, all Comey said was that Ashcroft
withdrew because, in an "abundance of caution," he "believed that
his recusal was appropriate based on the totality of the
circumstances and the facts and evidence developed at this stage
of the investigation." He added later in the press conference that
the "recusal is not one of actual conflict of interest that arises
normally when someone has a financial interest or something. The
issue that he was concerned about was one of appearance."
What facts would raise a serious questions of the appearance of a
conflict of interest here? I'd bet that the investigation is focusing on
at least one target whom Ashcroft knows more than casually, or
works with regularly. After all, Novak did identify his sources as two
"senior Administration officials."
What explains the timing of Ashcroft's removal? Recall that the
removal occurred as a result of events occurring in the same week
the Post reported that the FBI had told potential witnesses they
might have to face a grand jury.
Some of those witnesses very probably hired lawyers as soon as
they heard the news. Especially likely to hire a lawyer would be a
middle-level person with knowledge of a leak by a higher-up. And
such a lawyer would likely have gone immediately to the
prosecutors to make a deal.
Who might the lawyer be? It's pure speculation, but former D.C.
United States Attorney Joe diGenova, or his wife and law partner,
Victoria Toensing, are likely candidates. Toensing, as chief counsel
of the Senate Select Committee on Intelligence worked on one of
the laws that may have been violated -- the law protecting the
identities of undercover agents. Who better to defend a leaker who
might be subject to a law, than the person who drafted the law?
Moreover, Toensing was quoted in a recent Washington Post story
explaining that it is possible that any leak "could be embarrassing
but not illegal" -- suggesting that a leaker might have a possible
defense. (Unfortunately for the leaker, however, as I noted in an
earlier column, more than one law may have been broken.)
When the lawyer -- diGenova, Toensing, or someone else -- went
to the government seeking immunity for his or her client, Ashcroft
would have heard that the middle-level person was offering to
finger the high-level leaker. At that point, he would have realized
he himself knew the high-level leaker; and decided to recuse
himself from the case, and let Fitzgerald take over.
After all, as Comey pointed out at the press conference announcing
Fitzgerald's appointment, Fitzgerald -- as a U.S. Attorney -- would
not have to consult with anyone at the Justice Department before
making an immunity deal. Accordingly, Fitzgerald could "flip" the
middle-level person -- offering him or her immunity to testify against
his or her superior -- without the permission, or even knowledge, of
Comey, let alone Ashcroft.
If There Is a Knowledgeable Witness, What Next?
If there is a witness willing to testify against one -- or both -- of the
leakers in exchange for immunity, what then? It seems likely that
Fitzgerald will move very quickly to find out if there is indeed a case
to be made against the leakers. To bolster his case, he may call
Novak and others to the grand jury or, as noted above, subpoena
Novak's (and others') phone records over the relevant period. Even
Ashcroft himself could in theory be called to the grand jury.
If this case does not make headlines in 90 to 120 days, it will be
quite surprising. There has been too much high level action and
Comey, a presidential appointee, knows that politically it would be
better for Bush & Company to have the matter flushed out within
the next few months, than to have it arise just before the
November election. Needless to say, this could be an interesting
year for the White House, with more than reelection to worry
about. |
