President Bush said Tuesday that he welcomed a Justice Department investigation into whether White House officials illegally disclosed the identity of a CIA agent in an effort to discredit or punish her husband, an administration critic.
Bush also dismissed calls by Democrats for the appointment of a special counsel to look into the matter. Administration critics argued that Atty. Gen. John Ashcroft is too partisan to preside over an impartial investigation.
On a campaign fund-raising trip through the Midwest, Bush said he is “absolutely confident that the Justice Department will do a very good job.”
“I want to know the truth,” Bush said. “If there is a leak out of my administration, I want to know who it is. And if the person has violated the law, the person will be taken care of.”
The remarks were the president’s first on the burgeoning scandal, which burst into view over the weekend when it was disclosed that the CIA had asked the Justice Department to investigate whether senior administration officials deliberately unmasked a CIA agent married to former diplomat Joseph C. Wilson IV, a critic of Bush’s handling of intelligence before the war in Iraq.
The Justice Department said Tuesday that it was conducting a formal investigation into who leaked the agent’s identity to conservative columnist Robert Novak, an apparent violation of a 1982 law designed to protect intelligence operatives.
The allegations are serious; exposing the identity of a CIA operative is a felony punishable by up to 10 years in prison. And the charges have handed Democrats a juicy political opportunity, enabling them to accuse the hawkish Bush administration of playing fast and loose with national security.
In the Senate, a resolution sponsored by about two dozen Democrats was introduced Tuesday calling for a “fair, thorough and independent investigation into a national security breach.”
Democrats took to the Senate floor to liken the leak to President Richard Nixon’s enemies list and to “kneecapping” the CIA agent in retaliation for her husband’s criticism of the administration’s policies.
“This is not just a leak; this is a crime, plain and simple,” Sen. Charles E. Schumer (D-N.Y.) said.
The politically charged nature of the case was underscored Tuesday when Wilson, who has portrayed himself as defending the CIA career of his wife, Valerie Plame, confirmed on CNBC that he has been in contact with a number of Democratic campaigns, in particular that of Sen. John F. Kerry (D-Mass.). Wilson said he had donated money to Kerry’s presidential campaign and is considering endorsing him, although he said he also had contributed to the Bush-Cheney campaign in 2000.
Wilson has agreed to meet today with Democrats on Capitol Hill.
Justice officials said they weren’t ruling out the possibility of acceding to the demands for a special counsel. Some former prosecutors said they believed the facts of the case were so murky that appointing a special counsel seemed premature.
For now, the politically delicate task falls to a low-profile group of Justice professionals. The team is headed up by John Dion, chief of the counterespionage section of the department’s criminal section, a 20-year spy catcher who has won department awards during Republican and Democratic administrations for his work investigating turncoats and security breaches.
“John is a very aggressive prosecutor who will call it as he sees it,” said Eric Dubelier, a Washington lawyer and former federal prosecutor who worked with Dion several years ago. “He will make a decision based on the facts and the law. Then, the question will be, ‘Who is the final arbiter?’ ”
But some members of Congress said there was already evidence that the investigation was going off-track.
They cite a heads-up the Justice Department gave the White House on Monday night that it had decided to launch a formal investigation, and that it would be sending out a letter Tuesday morning explaining which documents it wanted preserved.
White House spokesman Scott McClellan said the White House counsel’s office asked whether staff should be notified immediately; the Justice officials said it could wait until the next morning.
McClellan rebuffed a question asking whether the evening phone call could be seen as advance warning, calling it a “silly suggestion.”
Schumer said the notice created an opportunity for mischief, essentially giving White House staff an opportunity overnight to destroy evidence.
“If there were a special counsel, it is extremely doubtful that the White House would have been allowed to delay the request to preserve documents and other evidence,” Schumer said. “After all, every good prosecutor knows that any delay could give a culprit time to destroy the evidence.”
Legal experts said the White House probably was already obliged under the law to preserve documents, given the widespread publicity the case had generated over the weekend. Others said they thought the White House should have acted more aggressively in ensuring that the documents be preserved.
“I think a conscientious lawyer would have done it immediately. We are not dealing with a rural D.A.'s office,” said Stephen Gillers, a legal ethics specialist at New York University law school. Gillers said he thought that White House counsel Alberto Gonzales’ own preservation order was “incredibly vague” and might have confused some employees.
Later Tuesday, Gonzalez expanded his notification to White House staff members by specifying that they preserve records of any contacts with members of the news media, including columnist Novak and Newsday reporters Tim Phelps and Knut Royce.
Phelps and Royce were apparently named because a story they wrote about Novak’s column in July disclosed that Plame was an undercover operative, which Novak’s column didn’t say.
Their story also quoted Novak as saying that an administration official had sought him out with the information about Plame. Novak now tells it differently, saying that the information emerged in an interview that he requested with the administration official. The Newsday account suggests a more aggressive role by the unidentified leaker.
Under Justice Department regulations, Ashcroft has full discretion in whether to appoint a special counsel, unlike the post-Watergate independent counsel statute, which ascribed that authority to a panel of judges. Congress allowed the counsel statute to expire in 1999 amid recriminations over the expense and scope of the Whitewater investigations.
In its place, then-Atty. Gen. Janet Reno enacted guidelines for when the department should veer from its normal rules in cases where officials have conflicts of interest. Those rules remain in effect.
“The attorney general is absolutely free to structure any special investigative appointment within the Department of Justice that he wishes. That has been done repeatedly as needed throughout history,” said John Barrett, a law professor at St. John’s University law school in New York, and a former member of the independent counsel team that investigated the Iran-Contra affair during the Reagan administration.
Ashcroft himself has exercised the prerogative, setting up a special task force to scrutinize Enron after recusing himself from the investigation because he had once taken campaign contributions from the fallen energy trader.
Barrett said even if the independent counsel law were still in effect, the investigation would be going through a sorting-out process, trying to zero in on suspects, before deciding whether a conflict existed warranting an outside prosecutor.
“Even in the independent counsel model, the preliminary work was to be done by the Department of Justice. Someone has to do the initial spade work,” he said.
On Capitol Hill, such legal distinctions were buried under political rhetoric from both sides.
“If we need an independent counsel to investigate a private real estate deal,” said Sen. Harry Reid (D-Nev.), referring to the independent counsel investigation into President Bill Clinton’s and Hillary Rodham Clinton’s Whitewater land venture, “certainly a breach of national security deserves the same level of scrutiny.”
California Sens. Dianne Feinstein and Barbara Boxer, both Democrats, were among those supporting calls for an outside counsel. Feinstein, a member of the Senate Intelligence Committee, said in a statement: “Clearly, a well-respected special counsel from the outside -- Democrat or Republican -- is the only option to ensure a fair and thorough investigation that will have the confidence of the American people.”
But House Majority Leader Tom DeLay (R-Texas) said of the Democrats’ call for a special counsel: “Surprise, surprise.”
DeLay said the appointment of a special counsel “makes no sense.”
“You have special counsels if you think the administration is trying to cover up or obstruct justice,” he said. “The White House is very upset about this ... They’re trying to get to the bottom of this.”
Sen. Rick Santorum (R-Pa.) ridiculed Democrats’ call for an outside counsel, noting they were among critics of the independent counsel statute in the past.
“We killed the independent counsel because it was used for politics by both sides of the aisle,” Santorum said.
Times staff writer Richard Simon in Washington contributed to this report. Reynolds reported from Chicago and Schmitt from Washington.