Leak Investigation: Why Gen. Ashcroft Removed Himself
Tue Jan 6 17:05:16 2004
Why Did Attorney General Ashcroft Remove Himself From The Valerie Plame Wilson
Signs that a Key Witness May Have Come Forward
By JOHN W. DEAN
Tuesday, Jan. 06, 2004
Recently, Attorney General John Ashcroft removed himself from the investigation
into who leaked the identity of covert CIA agent Valerie Plame Wilson. Since the
announcement, there has been considerable speculation as to why this occurred,
and what it means.
Some think the move suggests the inquiry will be scuttled -- and Ashcroft is
ducking out early to avoid the heat. But that seems unlikely. The new head of
the investigation, Patrick J. Fitzgerald, is a high profile, well-respected U.S.
Attorney, who runs one of the more important offices in the country, Chicago's.
Fitzgerald is also a close friend of Deputy Attorney General James Comey, who
announced his appointment. It seems unlikely that Fitzgerald was brought in
merely to kill the case.
Others believe that Ashcroft's decision to remove himself suggests that the
investigation must be focusing on people politically close to Ashcroft, and that
Ashcroft thus pulled out because he knew he would be criticized whatever he did.
That is certainly possible.
But as I will explain, I have a slightly different take on what has occurred and
why. Here is what the latest positioning of the tea leaves tells me.
The Recent Progress of the Plame Investigation
All signs indicate that the Plame leak investigation has been gaining steam.
As readers may recall, it was in a July 14 column that journalist Robert Novak
revealed that Valerie Plame Wilson was a CIA covert agent. As I discussed in a
prior column, the leak is potentially a felony, and could violate several laws.
According to The Washington Post, on December 23, minority leader Thomas
Daschle, and the ranking Democrat of the Armed Services Committee, Carl Levin,
sent Ashcroft a letter. The letter demanded a status report on the Plame
investigation, and urged the appointment of a special counsel. So Democrats have
kept the heat on, but that does not strike me as the probable reason for
On December 26, the Post reported that the investigation was, in fact, gaining
momentum, and the Justice Department had added a fourth prosecutor "specializing
in counterintelligence" (which I translate as meaning he had all the security
clearances needed to work on a case like this). It also reported that "FBI
agents have told people they have interviewed that they may be asked to testify
before a grand jury." Empanelling a grand jury empowers prosecutors both to
serve subpoenas, and to gather testimony under oath.
On December 30, Deputy Attorney General Comey held a press conference to
announce that Ashcroft had removed himself from the investigation. Comey said
that the investigation would instead be headed by Fitzgerald. Of note to me, was
Comey's comment that "this has come together really in the last week" --
meaning, apparently, the week of December 22-26 -- the Christmas holiday week
during which the FBI raised the prospect of a grand jury.
As Comey explained, given Fitzgerald's U.S. Attorney status -- which will be
continuing concurrent with his "special counsel" status -- there will be no
interruption in the investigation. Comey noted that if Fitzgerald "needs to
issue a subpoena involving the media, for example, or if he wants to grant
immunity to somebody," he will not have to obtain approval of the Justice
Department. (The reference to the media certainly hints at subpoenaing Novak's
phone records, or calling him before the grand jury -- again suggesting progress
in the inquiry.)
On January 2, NBC News reported that the FBI was focusing on the White House as
the probable source of the leak. It also reported that the FBI had asked White
House staffers "to sign a form releasing reporters from any promises of
confidentiality they may have made to their sources."
Not only does none of this activity indicate an investigation that is being
scuttled, but it clearly implies something noteworthy has happened in the
The New Phase Of the Investigation
Not wanting to hype the situation, all Comey said was that Ashcroft withdrew
because, in an "abundance of caution," he "believed that his recusal was
appropriate based on the totality of the circumstances and the facts and
evidence developed at this stage of the investigation." He added later in the
press conference that the "recusal is not one of actual conflict of interest
that arises normally when someone has a financial interest or something. The
issue that he was concerned about was one of appearance."
What facts would raise a serious questions of the appearance of a conflict of
interest here? I'd bet that the investigation is focusing on at least one target
whom Ashcroft knows more than casually, or works with regularly. After all,
Novak did identify his sources as two "senior Administration officials."
What explains the timing of Ashcroft's removal? Recall that the removal occurred
as a result of events occurring in the same week the Post reported that the FBI
had told potential witnesses they might have to face a grand jury.
Some of those witnesses very probably hired lawyers as soon as they heard the
news. Especially likely to hire a lawyer would be a middle-level person with
knowledge of a leak by a higher-up. And such a lawyer would likely have gone
immediately to the prosecutors to make a deal.
Who might the lawyer be? It's pure speculation, but former D.C. United States
Attorney Joe diGenova, or his wife and law partner, Victoria Toensing, are
likely candidates. Toensing, as chief counsel of the Senate Select Committee on
Intelligence worked on one of the laws that may have been violated -- the law
protecting the identities of undercover agents. Who better to defend a leaker
who might be subject to a law, than the person who drafted the law?
Moreover, Toensing was quoted in a recent Washington Post story explaining that
it is possible that any leak "could be embarrassing but not illegal" --
suggesting that a leaker might have a possible defense. (Unfortunately for the
leaker, however, as I noted in an earlier column, more than one law may have
When the lawyer -- diGenova, Toensing, or someone else -- went to the government
seeking immunity for his or her client, Ashcroft would have heard that the
middle-level person was offering to finger the high-level leaker. At that point,
he would have realized he himself knew the high-level leaker; and decided to
recuse himself from the case, and let Fitzgerald take over.
After all, as Comey pointed out at the press conference announcing Fitzgerald's
appointment, Fitzgerald -- as a U.S. Attorney -- would not have to consult with
anyone at the Justice Department before making an immunity deal. Accordingly,
Fitzgerald could "flip" the middle-level person -- offering him or her immunity
to testify against his or her superior -- without the permission, or even
knowledge, of Comey, let alone Ashcroft.
If There Is a Knowledgeable Witness, What Next?
If there is a witness willing to testify against one -- or both -- of the
leakers in exchange for immunity, what then? It seems likely that Fitzgerald
will move very quickly to find out if there is indeed a case to be made against
the leakers. To bolster his case, he may call Novak and others to the grand jury
or, as noted above, subpoena Novak's (and others') phone records over the
relevant period. Even Ashcroft himself could in theory be called to the grand
If this case does not make headlines in 90 to 120 days, it will be quite
surprising. There has been too much high level action and Comey, a presidential
appointee, knows that politically it would be better for Bush & Company to have
the matter flushed out within the next few months, than to have it arise just
before the November election. Needless to say, this could be an interesting year
for the White House, with more than reelection to worry about.
FindLaw's Writ - Dean: A Further Look At The Criminal ChargesThat ...
... I've only suggested the most obvious criminal statute that might come into
for those who exploit the leak of a CIA asset's identity. There are others. ...
FindLaw's Writ - Dean: The Bush Administration Adopts a Worse-than ...
... are those with direct access to the classified information about the "covert
who leak it. These insiders - including persons in the CIA - may serve up ...
FindLaw's Writ - Hilden:
... also pointed that Snepp had rights too: "[A]t the same time, the CIA
a ... he (or she) who refuses to sign is marked as a traitor, a leak just
FindLaw's Writ - Levinson: What Is The Constitution's Role In ...
... information Â— would show little sympathy for a "Pentagon Papers"-like leak.
... as a
"singularly unattractive" litigant Â— "a former CIA employee whose declared ...
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