President Bush’s assertion on Tuesday that "we’ll get to the bottom of this and move on" has the ring of wishful thinking. This scandal is going to roil the White House for quite a while. That prediction holds even if — as seems reasonably likely — the "senior administration officials" who allegedly sought to discredit, or spite, a whistle-blower by telling reporters that his wife worked for the CIA were unaware that she was a covert agent, and thus committed no crime.
No crime yet, that is. For unless the leakers stand up and confess their scummy exercise in political hardball, there will probably be a cover-up. There will almost have to be a cover-up. The first step in any criminal investigation into leaks of classified information is typically to paper the universe of possible leakers, which in this case includes top White House officials, with questionnaires. One question might be: "Did you have anything to do with these leaks?" The leakers’ options will be to come clean; to refuse to answer, which would be a firing offense; or to lie, which would be a federal crime.
"The test of whether this is a serious investigation will be whether White House people who knew this woman’s identity are subpoenaed to testify," in the words of a former Justice Department official. So the leakers, and any others with guilty knowledge, may one day find themselves in a grand jury room. Their options then will be to tell the truth, take the Fifth, or commit perjury.
While the criminal investigation unfolds behind closed doors, look for more score-settling leaks by rival CIA and White House officials, more lame defenses by congressional Republicans who would have torn the Clinton White House apart for this, more diatribes by delighted Democrats who defended Bill Clinton’s serial perjuries, and maybe even media stakeouts at the homes of those dragged into the spotlight.
Yuck. It all has such a tedious, late-20th-century, Lawrence Walsh-Kenneth Starr-Susan McDougal-Hillary-billing-records-Buddhist-temple feel to it. Can’t we just find the miscreants, clear them out of the White House, make an appropriate adjustment in Bush’s approval rating, and call the whole thing off?
Alas, we can’t. Only a thorough criminal investigation, with all the ugly political side effects, holds any hope of resolving whether high-level Bush aides carried their hyping of the Iraq nuclear threat to the point of criminal retaliation against a dissenter, and which officials may have been involved.
The news media may find itself in the center ring as well as the press box this time. It seems likely that prosecutors will subpoena the phone records of the six or more reporters to whom officials are suspected of leaking the CIA agent’s name — and it’s conceivable that reporters might be ordered to disclose their sources and jailed for contempt of court if they refuse. That would be unheard of in Washington scandal lore, and a dangerous precedent. But in a case of this potential importance, a really aggressive prosecutor, willing to take the media pounding that has deterred others from serving subpoenas on reporters, might be tempted to try. And the most relevant Supreme Court precedents suggest that the courts would probably reject claims that reporters have an absolute First Amendment right to protect their sources.
The most obvious target for a subpoena would be conservative columnist Robert D. Novak, who in July identified Valerie Plame, wife of former Ambassador Joseph C. Wilson IV, as a CIA "operative on weapons of mass destruction," citing "two senior administration officials" as his sources. According to recent news reports, Plame was working as an analyst, but her name was classified to protect contacts from her past and possible future undercover work abroad.
Wilson had drawn White House wrath by publicly challenging as deceptive the administration’s statements about Iraqi arms, including President Bush’s January 28 assertion that Britain "has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Wilson had come to the opposite conclusion when the CIA sent him to Niger in February 2002 to investigate.
The leakers’ apparent motive was either fatuous (to portray Wilson as a lightweight who got the Niger assignment only because of his wife’s help and perhaps his own presumed predisposition to parrot the CIA line in interagency disputes), or it was malicious (to take revenge on Wilson and send a menacing message to other potential whistle-blowers by blowing Plame’s cover).
Reporters and critics have suggested that the way for Bush to show that he does not condone such leaks would be to ask his top aides, face-to-face, if they were involved, starting with political guru Karl Rove, the person most often mentioned by Wilson and the media as a possible suspect. But even if Bush succeeded in personally smoking out the leakers, and then fired them, it would by no means end the investigation. Rather, the president would have set himself up for the role of star prosecution witness in any criminal trials of the same former aides whose confessions he had extracted by appealing to their loyalty. So it’s not hard to understand why Bush punted the whole business to the Justice Department.
Should Attorney General John D. Ashcroft yield to Democrats’ demands that he appoint a quasi-independent special counsel from outside the Justice Department to take over the investigation? Perhaps eventually, but not just yet. Our experience under the now-defunct statute providing for court-appointed independent counsels shows that a prosecutor appointed to handle a single high-profile case has extraordinary incentives to pursue an unduly exhaustive investigation, even of a relatively petty allegation, and a singularly merciless brand of justice. So the Justice Department should keep this investigation in-house for as long as it credibly can. But the investigation will be credible only if shielded from any but the most nominal supervision by Ashcroft, who has a clear political conflict of interest and is a highly polarizing figure to boot. And Ashcroft should recuse himself entirely if any specific evidence points to Rove, who advised Ashcroft on the campaign trail and helped him get his current job.
Ashcroft and Bush have stressed that "career professionals" at the Justice Department will do the investigating. But the career lawyers who have traditionally run investigations of leaks do not have an impressive track record, and understandably so. They are routinely inundated with complaints; it is all but impossible to catch leakers, because reporters won’t cooperate; the universe of possible suspects is usually quite large, and so the Justice Department often gives up the hunt without even demanding testimony from officials. When finding nothing is the norm, you tend to stop looking very hard.
In this case, which involves unusually ugly leaks and a manageable number of unusually important possible suspects, Ashcroft should ensure energetic investigation by bringing in a respected federal prosecutor, probably from outside Washington, with enough stature to be seen as immune from political pressure.
Such a prosecutor might well conclude that the leakers did not cross the line from reckless endangerment into criminality. The most relevant statute is the Intelligence Identities Protection Act, which has never been used, as best I can determine, since it was adopted in 1982 to stop former CIA agent Philip Agee’s treasonous campaign to expose CIA undercover operatives around the world.
The leaking of Plame’s CIA connection violated that law if, and only if, the leakers knew that Plame was a "covert agent" and the government had been "taking affirmative measures to conceal" her CIA work. And if the leakers knew that, they knew that identifying her might destroy her effectiveness, compromise much of the work she had done, and even endanger her life or the lives of informants overseas. Only a person of truly extraordinary depravity could do such a thing.
The more likely explanation, in my view, is extraordinary pettiness and recklessness: The leakers, knowing only that Plame worked for the CIA, stupidly mentioned this to Novak and others for no better, and no worse, reason than the probably vain hope of nicking Wilson’s credibility.
But still no conscientious prosecutor would simply assume that the leakers lacked guilty knowledge. Rather, he or she would demand reams of sensitive internal White House documents and e-mails. The prosecutor would later seek interviews with — or grand jury testimony by — every top official within the universe of possible leakers, and lots of people who might have discussed the matter with them. And the prosecutor would set whatever traps possible to flush out the leakers and catch them lying.
That’s why the cover-up will probably be criminal even if the leaks themselves were not.