Prosecutor’s Lips Still Sealed in Probe of Leaked Information

Time seemed to be of the essence last December when the Justice Department named a special prosecutor to handle the seemingly straightforward, if politically delicate, task of investigating whether a Bush administration official had illegally identified the name of a CIA operative to a newspaper columnist.

“The attorney general and I agree that all leak investigations must be conducted with energy and urgency,” said James Comey, the deputy attorney general, in announcing the appointment of a longtime friend and colleague, Patrick J. Fitzgerald, the U.S. attorney in Chicago, to the post.

Today, Fitzgerald’s investigation seems plenty energized, although the urgency he is bringing to the task is open to debate.

The probe, which the Justice Department began on its own in September 2003, is entering its second year without any clear end in sight. The schedule for a court fight over subpoenas indicates that the case is unlikely to be resolved before the Nov. 2 election, and could stretch into 2005.

Thus, when voters go to the polls in less than two weeks, they will probably have no better idea whether an administration official may have committed a crime.

The question that drove Fitzgerald’s appointment -- who leaked the identity of a CIA operative to columnist Robert Novak? -- has devolved into a 1st Amendment courtroom brawl with a gaggle of other Beltway journalists about contacts they had with administration officials during the summer of 2003, when the Novak column was published.

Some of those journalists now face possible jail time for refusing to answer questions from Fitzgerald. But it is unclear whether Novak has been approached or questioned by the prosecutor.

“It is a bafflement,” said Steve Lubet, a Northwestern University law professor. To all appearances, “he is putting the screws to everybody in sight -- except for Novak.”

Fitzgerald has refused to comment on any aspect of the investigation. A lawyer for Novak also has declined to discuss any contacts his client may have had with the prosecutor.

No one has publicly suggested that Fitzgerald, a career Justice Department lawyer whom Comey has likened to “Eliot Ness with a Harvard law degree,” is delaying any indictments until after Nov. 2 to avoid hurting President Bush’s reelection prospects.

Still, the prosecutor’s investigation into how the name of CIA operative Valerie Plame made its way into a Novak column on July 14, 2003, and whether any laws were broken in the process, illustrates some of the problems prosecutors face in deciding whether -- and when -- to bring politically sensitive cases.

Prosecutors are not supposed to let politics, including elections, affect timing or the decision to bring cases. Yet there appears to be an unwritten rule that charges with possible political fallout should not be filed on the eve of an election because the motivation would be suspect.

The rule was last tested in the first Bush administration when independent counsel Lawrence Walsh brought an indictment of former Defense Secretary Caspar W. Weinberger in connection with the Iran-Contra scandal just four days before the 1992 presidential election.

The indictment created a political firestorm because it cited Weinberger notes indicating that candidate George H. W. Bush was aware of the arms-for-hostage deal at the heart of the scandal.

Walsh later revealed in a memoir that there was debate within his own team whether to include the references to Bush in the indictment.

Bush pardoned Weinberger after losing his reelection bid to Bill Clinton.

Fitzgerald could still pull an October surprise. Some former prosecutors who have conducted similar national-security investigations and who did not want to be identified think it is likely that by now Fitzgerald knows who leaked the information to Novak and is mulling over whether a crime was committed.

Fitzgerald has the authority to bring charges without seeking the approval of anyone at the Justice Department.

U.S. Atty. Gen. John Ashcroft recused himself from the case after Democrats complained that his ties to White House political director Karl Rove called his objectivity into question.

Leak investigations can prove problematic. Although leaks to journalists by government officials are routine in Washington, the tipsters are hardly ever prosecuted.

Journalists on the receiving end of leaks are disinclined to cooperate with investigators because they feel an ethical obligation to protect their confidential sources.

Prosecutors, at least until Fitzgerald came along, have been reluctant to press the issue in court.

Probes of political figures can also be especially tricky and time-consuming. One member of Fitzgerald’s staff assisted in an independent counsel probe of former HUD Secretary Henry G. Cisneros that took eight years.

In the latest case, Plame’s husband, former envoy Joseph C. Wilson, has alleged that his wife was outed by the Bush administration in response to a column he wrote challenging the president’s claim that Iraq had sought nuclear materials in Niger.

Wilson had been sent to the tiny West African nation by the CIA in February 2002 to investigate such reports and found no evidence to support them.

Eight days after Wilson’s opinion article appeared in the New York Times, Novak wrote his column, saying that Wilson had been sent to Niger on the recommendation of his CIA operative wife, whom he identified by name. Novak cited “two senior administration officials,” whom he didn’t name, as sources.

Guessing the identity of those sources remains a Washington parlor game.

Novak’s refusal to say whether he has spoken to Fitzgerald has led to speculation that the prosecutor is marshaling other evidence before confronting the columnist with the identity of the suspected leaker as part of a climactic end game.

Another theory has it that Novak is not talking because he might be culpable under a sweeping 1917 law that on its face makes it a crime for anyone, journalists included, to mishandle classified information.

Still others speculate that the prosecutor has concluded that Novak’s two administration sources did not break the letter of the law that makes it a crime to reveal names of covert agents.

Under that law, prosecutors must show that the person who leaked the information had a classified status -- which would include numerous White House officials -- and knew he or she was unmasking a covert agent whose identity authorities were attempting to conceal.

Meanwhile, Fitzgerald has been aggressively taking on other journalists who reported on the story. Two -- from Time and the New York Times -- face possible jail time for refusing to cooperate.

Normally, the subpoenaing of journalists signals that an investigation is nearing an end because under Justice Department guidelines, journalists are supposed to be subpoenaed only as a last resort. But now the subpoenas are causing a fight that is prolonging the investigation.

The next scheduled court hearing on the journalists’ case is Dec. 8.