Attempting to Do Justice to the Leak Investigation

Democrats have been intensifying pressure on the Justice Department to step aside and let a special counsel investigate allegations that the White House unmasked a CIA operative to retaliate against an administration foreign-policy critic.

Their concern is that political ties between top Justice Department officials, including Atty. Gen. John Ashcroft, and the White House will inhibit a full and fair investigation.

But history suggests prosecutors could surprise them. Justice Department attorneys have on more than a few occasions pursued cases inside their party -- from the prosecution of many of the president’s men during the Watergate scandal to the indictment of former House Ways and Means Chairman Dan Rostenkowski, once one of the most powerful Democrats in Congress, by the Clinton Justice Department. Rostenkowski, who served 17 months in prison, was later pardoned by Clinton.

Conversely, Sen. Charles E. Schumer, the New York Democrat who has been leading the charge to take the leak case out of the hands of Justice Department prosecutors, was cleared by Ronald Reagan’s Justice Department in connection with allegations of misusing state funds during his first congressional campaign in the early 1980s.

A spokesman for Schumer, Phil Singer, declined to discuss that case in depth. He said the conflict-of-interest concerns with Ashcroft stem from his relationship with the White House, rather than the fact that Republicans happen to be involved, making Schumer’s earlier run-in with the department irrelevant.

Yet past same-party prosecutions, some former officials said, show that the Justice Department, especially career prosecutors, are more than capable of rising above partisan concerns.

“If the Justice Department is worth having, it is worth trusting,” said Griffin Bell, attorney general in the Carter administration and now an Atlanta attorney, who sees no need for a special counsel in the leak case. “The lawyers in the criminal division are perfectly capable of interviewing witnesses and calling people before the grand jury to find out what the truth is.”

Proponents of a special prosecutor contend that Ashcroft and the Justice Department are so deeply indebted politically to the White House that they cannot be trusted to conduct a hard-hitting investigation.

In a letter to President Bush on Thursday, four Democrats, including Schumer and Senate Minority Leader Tom Daschle of South Dakota, urged Bush to take steps to move the leak inquiry outside the Justice Department, saying that Ashcroft had a conflict of interest under department guidelines. Among other concerns, the letter cited his “personal relationship and political alliance” with Bush and ties to Karl Rove, the president’s chief political advisor. Rove furnished direct-mail services to Ashcroft when he was a political candidate in the early 1990s.

The investigation involves allegations that an administration official in July leaked the name of CIA operative Valerie Plame to columnist Robert Novak because officials were unhappy with her husband, Joseph C. Wilson IV, a former State Department envoy. Wilson had written a New York Times article that criticized the evidence Bush cited in his State of the Union address in January to argue for war against Iraq.

The investigation, launched two weeks ago after the CIA filed a formal complaint with the Justice Department, is being handled by the department’s counter-espionage section, led by a 30-year spy catcher who has been recognized for his work in Republican and Democratic administrations. The White House is reviewing and turning over to investigators phone records and other relevant inquiry papers.

Many specialists on legal ethics and the rules for appointing special prosecutors say it is premature to take that step. Even the much-maligned and now-expired independent-counsel law -- under which the Iran-Contra affair in the 1980s and the Whitewater episode in the 1990s were investigated -- allowed the Justice Department up to 90 days for a preliminary investigation.

Charles LaBella, a former federal prosecutor in San Diego who headed a task force that investigated campaign-finance irregularities during the Clinton years, said he isn’t familiar enough with the leak case to say whether a special counsel is needed.

LaBella’s recommendation that an independent counsel be appointed in the campaign-finance case was rejected by then-Atty. Gen. Janet Reno and created a political stir. He said whoever handles the current investigation will have a tough time because leak cases are almost impossible to prove, since they depend on the cooperation of journalists, who rarely talk.

Others said they believe Ashcroft has an incentive to stay as far from the case as possible.

“Does anyone think that John Ashcroft could get away with squelching line attorneys in the Department of Justice in this day and age? ... That would give this thing legs,” said Stanley Brand, a former general counsel of the House of Representatives.

Brand said the main lesson of the independent-counsel statwas that “the old system was not that bad,” by giving discretion to the Justice Department.

It worked for Schumer.

In the early 1980s, Schumer, then a freshman member of Congress, was being investigated by a federal prosecutor in Brooklyn in connection with allegations that employees of a New York Assembly committee he once headed simultaneously worked on his first congressional campaign, possibly violating the law.

A grand jury reportedly heard testimony, and it looked bad for the liberal newcomer -- until the matter reached Reagan’s Justice Department for final consideration. Reagan’s associate attorney general, future New York Mayor Rudolph W. Giuliani, stopped the case in its tracks.

A local prosecutor, Elizabeth Holtzman, who held the same congressional seat before Schumer and had had political differences with her successor, decided to launch her own investigation. Her idea: appoint a special prosecutor to investigate.

But Schumer’s lawyers went to court and won a ruling from New York’s highest court, which held that Holtzman had improperly delegated her power to exercise prosecutorial discretion. Later, Holtzman conducted her own investigation and found no grounds to prosecute.