From Senators: Tom Daschle, Joseph R. Biden, Carl Levin, Charles E. Schumer
To: The President / The White House
Thursday 09 October 2003
The President
The White House
Washington, DC 20500
Dear Mr. President:
We write to express our continuing concerns regarding the manner in which your Administration is
conducting the investigation into the apparently criminal leaking of a covert CIA operative's identity.
You have personally pledged the White House's full cooperation in this investigation and you have
stated your desire to see any culprits identified and prosecuted, but the Administration's actions are
inconsistent with your words.
Already, just fourteen days into this investigation, there have been at least five serious missteps.
First, although the Department of Justice commenced its investigation on Friday, September 26,
the Justice Department did not ask the White House to order employees to preserve all relevant
evidence until Monday, September 29. Every former prosecutor with whom we have spoken has said
that the first step in such an investigation would be to ensure all potentially relevant evidence is
preserved, yet the Justice Department waited four days before making a formal request for such
documents.
Second, when the Justice Department finally asked the White House to order employees to
preserve documents, White House Counsel Alberto Gonzales asked for permission to delay
transmitting the order to preserve evidence until morning. That request for delay was granted. Again,
every former prosecutor with whom we have spoken has said that such a delay is a significant
departure from standard practice.
Third, instead of immediately seeking the preservation of evidence at the two other Executive
Branch departments from which the leak might have originated, i.e., State and Defense, such a
request was not made until Thursday, October 1. Perhaps even more troubling, the request to State
and Defense Department employees to preserve evidence was telegraphed in advance not only by the
request to White House employees earlier in the week, but also by the October 1st Wall Street
Journal report that such a request was "forthcoming" from the Justice Department. It is, of course,
extremely unusual to tip off potential witnesses in this manner that a preservation request is
forthcoming.
Fourth, on October 7, White House spokesperson Scott McClellan stated that he had personally
determined three White House officials, Karl Rove, Lewis Libby and Elliot Abrams, had not disclosed
classified information. According to press reports, Mr. McClellan said, "I've spoken with each of them
individually. They were not involved in leaking classified information, nor did they condone it." Clearly, a
media spokesperson does not have the legal expertise to be questioning possible suspects or
evaluating or reaching conclusions about the legality of their conduct. In addition, by making this
statement, the White House has now put the Justice Department in the position of having to determine
not only what happened, but also whether to contradict the publicly stated position of the White
House.
Fifth, and perhaps most importantly, the investigation continues to be directly overseen by Attorney
General Ashcroft who has well-documented conflicts of interest in any investigation of the White
House. Mr. Ashcroft's personal relationship and political alliance with you, his close professional
relationships with Karl Rove and Mr. Gonzales, and his seat on the National Security Council all tie
him so tightly to this White House that the results may not be trusted by the American people. Even if
the case is being handled in the first instance by professional career prosecutors, the integrity of the
inquiry may be called into question if individuals with a vested interest in protecting the White House
are still involved in any matter related to the investigation.
We are at risk of seeing this investigation so compromised that those responsible for this national
security breach will never be identified and prosecuted. Public confidence in the integrity of this
investigation would be substantially bolstered by the appointment of a special counsel. The criteria in
the Justice Department regulations that created the authority to appoint a Special Counsel have been
met in the current case. Namely, there is a criminal investigation that presents a conflict of interest for
the Justice Department, and it would be in the public interest to appoint an outside special counsel to
assume responsibility for the matter. In the meantime, we urge you to ask Attorney General Ashcroft
to recuse himself from this investigation and do everything within your power to ensure the remainder
of this investigation is conducted in a way that engenders public confidence.
Sincerely,
Tom Daschle
Joseph R. Biden
Carl Levin
Charles E. Schumer
Go to Original
4 Senators Criticize Leak Probe
By Mike Allen and Susan Schmidt
Washington Post
Friday 10 October 2003
Letter to Bush Cites Screening of White House Documents
Minority Leader Thomas A. Daschle (D-S.D.) and three other Senate Democrats asserted
yesterday that procedures adopted by the Justice Department and White House could compromise an
investigation into the leak of an undercover CIA operative's identity.
Their objections include the decision of White House counsel Alberto R. Gonzales to screen
documents White House employees submitted to his office in response to a Justice Department order.
Gonzales set a deadline of last Tuesday for employees to turn in records that might be relevant; then
his office is forwarding them to investigators.
The White House has not ruled out the possibility that Gonzales will seek to withhold documents
under a claim of executive privilege.
The Justice Department and several outside Republican lawyers said they considered the
procedures to be standard and prudent.
The Democrats outlined their objections in a letter to President Bush, calling for the appointment of
a special prosecutor who would have a degree of independence from Attorney General John D.
Ashcroft.
"Already, just fourteen days into this investigation, there have been at least five serious missteps,"
they wrote. "We are at risk of seeing this investigation so compromised that those responsible for this
national security breach will never be identified and prosecuted."
The letter was signed by Daschle and Joseph R. Biden Jr. (Del.), Carl M. Levin (Mich.) and Charles
E. Schumer (N.Y.).
The objections were:
The Justice Department began the investigation Sept. 26 but did not ask the White House to
order employees to preserve relevant evidence until Sept. 29.
Gonzales did not order employees to preserve their records until the next day, when the
investigation was announced.
The Justice Department did not ask the Pentagon and State Department to preserve possible
evidence until late on Oct. 1, after news reports that such a request was coming.
White House press secretary Scott McClellan has said he determined that three senior officials
who were the subject of speculation in news accounts were not involved in leaking classified
information. The senators wrote: "Clearly, a media spokesperson does not have the legal
expertise to be questioning possible suspects or evaluating or reaching conclusions about the
legality of their conduct."
Ashcroft remains responsible for the probe despite his close political and personal relationships
with Bush and his top aides.
Justice Department spokesman Mark Corallo replied: "From the time that career prosecutors at the
Department of Justice decided to open an investigation, it has been handled professionally and by the
book."
The investigation is being headed by John J. Dion, the department's counterespionage chief. Corallo
called Dion "a 30-year-veteran of impeccable integrity."
Federal law generally bars destruction of materials relevant to an investigation whether or not
subpoenas have been issued.
Asked Tuesday about the possibility of a claim of executive privilege on documents not forwarded to
investigators, McClellan said: "The president has made it clear that we are cooperating fully. We
welcome this investigation. We want this investigation to move forward in a thorough and quick way,
so that we can get to the bottom of this. But I think it's premature to even speculate about such
matters."
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