Leak Inquiry Embarks on a Long Road
A handful of federal investigators on Wednesday began looking into the suspected outing of a CIA operative by a Bush administration official, adopting a deliberate approach to a politically charged case that is apt to prove complex and take months.
The FBI said it had assembled a team of a half-dozen agents steeped in leak investigations, but sought to play down expectations of a quick resolution. “We are talking about very, very, very preliminary stages,” an FBI official said.
She said the bureau was not viewing the probe as an investigation of the White House at this stage. Rather, “we are investigating an unauthorized disclosure of classified information,” she said. “Where the investigation leads is still to be determined.”
But it is the White House that is under orders from the Justice Department to preserve key materials related to the burgeoning scandal over allegations that administration officials leaked to journalists the identity of the wife of former diplomat Joseph C. Wilson IV in retaliation for his criticism of the administration’s Iraq policy.
“What has been asked of us at this point is simply to preserve information,” Scott McClellan, the White House spokesman, said Wednesday. “The Justice Department hasn’t asked us anything beyond that, at this point.”
McClellan acknowledged at a briefing that senior White House officials may well have discussed with reporters information about Wilson’s wife -- but only after she had been exposed by columnist Robert Novak in July as a CIA operative.
The case has flared into a high-risk proposition for the president, and a test of the evenhandedness of his Justice Department, where Atty. Gen. John Ashcroft has brushed off calls from members of Congress for a special counsel in lieu of letting his career prosecutors take the lead.
An ABC-Washington Post poll taken Tuesday found that seven in 10 Americans, including a majority of Republicans, favor a special counsel.
But Ashcroft’s plan to have his own prosecutors pursue the case could itself prove to have political overtones, as any decisions on whether to file charges move through the upper echelons of the department.
Right now, the investigation is being led by John Dion, the department’s chief spy-catcher, who over a 30-year career has won departmental recognition from Republicans and Democrats.
But in addition to Ashcroft, among the political appointees who may help decide the fate of the case is the department’s new second-in-command, acting deputy Robert McCallum. He is an old friend and Yale classmate of the president’s; both were members of the secret Skull & Bones Society at Yale.
McCallum replaced Larry Thompson, a respected former independent counsel who investigated alleged improprieties by officials at the Department of Housing and Urban Development during the Reagan administration. Thompson recently left the department.
Nonetheless, some legal experts said they were comfortable with the decision to keep the case in-house, so long as the attorney general and his team keep their distance.
“I believe that the career lawyers in Justice -- the people who preceded John Aschroft and who will be there after he leaves -- will do a nonpolitical investigation, an honest investigation,” said Stephen Gillers, a legal ethics specialist at New York University Law School. “Ashcroft’s sole job is to stay out of it.”
Politics aside, the task facing investigators is deceptively complex. Obtaining phone records of administration officials, for instance, is often the stuff of a delicate political negotiation between prosecutors and White House lawyers, who are likely to argue that some sensitive materials are irrelevant to the case and should be kept under wraps.
“It is going to take them several weeks just to get the relevant records from the CIA and the White House,” a former Justice Department criminal division official said, requesting anonymity. “The White House is not going to turn over all of [chief political advisor] Karl Rove’s phone logs. There is going to be a negotiation over it. You have to negotiate the terms and conditions. It is going to take some time.”
The former official added that the CIA has probably identified potentially hundreds of people who knew about the undercover status of Wilson’s wife, Valerie Plame, a specialist in weapons of mass destruction, which could further drag out the investigation.
Leak investigations in general have an abysmal success record, in large measure because prosecutors find it hard to make a case without the cooperation of journalists, who seek to protect the identity of their sources. Moreover, the Justice Department has special guidelines on subpoenaing journalists’ phone and other records, which require investigators to exhaust all other avenues of getting the pertinent information first.
“The White House insider will have control over how the investigation progresses -- unless you go to the other side of the leak, which is the media,” said Daniel Richman, a former federal prosecutor and currently a professor at Fordham Law School in New York. “But for all our talk about prosecutors’ overreaching in the U.S., that is something that has never been done with any seriousness by the government.
“What is the likelihood of a leak investigation succeeding without the journalists’ participation? The answer is, it is very difficult to have any success, and the history of leak investigations is one of dead ends,” he said.
Circumstantial evidence, such as phone records or logs, which create an apparent trail, are often weak links because other people may have access to the phone lines in question, he said. Another option is polygraph tests, but questions about their reliability, and the whiff of indignity that surrounds them, would probably raise objections from some at the White House. McClellan, asked Wednesday whether the White House would permit polygraph exams for staffers, declined to comment on the “hypothetical” question.
Moreover, the 1982 law against divulging names of agents, the Intelligence Identities Protection Act, seems to have some wiggle room. It requires proof that the disclosure was intentional and that the accused knew the person being identified was a covert agent. The law has hardly been used, and then mostly in the context of espionage cases, including a 1985 probe of a CIA operative in Ghana who admitted passing along top-secret information to her lover.
The president avoided all questions Wednesday about the controversy. At the end of a late-morning Oval Office photo-op with the prime minister of Pakistan, Bush ignored shouted inquiries from reporters as a large press gaggle was hustled out of his office.
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