Privilege Claim Is Possible in Leak Probe

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Privilege Claim Is Possible in Leak Probe
The Bush White House apparently plans to review the documents before releasing them. The 'outed' CIA agent is considering a lawsuit.
By Richard B. Schmitt and Maura Reynolds
L.A. Times Staff Writers -
October 7, 2003

WASHINGTON ?- The White House said Monday that it might take up to two weeks to turn over all the documents requested by the Justice Department in connection with its probe of who leaked the name of a CIA operative to columnist Robert Novak.

The drawn-out timetable, which suggests that officials may be considering invoking claims of executive privilege in connection with some of the materials being sought, comes as scores of White House staffers are scrambling to assemble electronic, phone and computer records related to the investigation.

As of late Monday, about 500 staffers had responded to a request from White House counsel Alberto R. Gonzales to turn over the requested records to his office by the end of business today or else certify in writing that they didn't have any pertinent materials in their possession, a spokeswoman said.

The hunt for documents began last week at the behest of Justice Department investigators checking out allegations that a Bush administration official leaked the name of CIA operative Valerie Plame to journalists in an effort to retaliate against her husband, former envoy Joseph C. Wilson IV, for criticizing administration policy on Iraq.

Novak disclosed Plame's name in a July 14 column, suggesting that she might have been responsible for getting her husband selected for a CIA-backed mission to Niger in 2002 to assess foreign intelligence that Saddam Hussein was trying to purchase a form of uranium to make nuclear weapons.

Wilson reported back that the claims about Hussein's interest in African "yellowcake" uranium appeared to be bogus, which has since been verified.

But the allegation was used in President Bush's State of the Union address in January anyway, which in turn triggered Wilson to write a critical opinion piece in the New York Times. Novak's column followed that opinion piece eight days later.

The completion of the document search will mark a new phase of the investigation, potentially putting the White House at odds with the demands of investigators.

Depending on the volume of materials, Bush lawyers face the potentially cumbersome task of sorting through information for relevance, and then having to decide whether to assert a privilege for materials on the grounds of national security or attorney-client privilege.

That has been a flashpoint in the past ?- from President Nixon's initial refusal to turn over his audiotapes during the Watergate affair, to some of President Clinton's aides' resistance to answer certain grand jury questions about the Monica S. Lewinsky sex-and-perjury case.

"They will read through everything that is provided, and make an assessment whether there is anything in there that is potentially privileged," said Beth Nolan, a White House counsel during the Clinton administration and now a lawyer at the Washington law firm Crowell & Moring.

"If something is just sensitive but not privileged, they cannot refuse to turn it over," she said, "but they may want to be prepared for that and know that."

A spokeswoman declined to comment on whether the White House planned to invoke executive privilege, saying it was too early to say. But she reiterated that the administration planned to "cooperate fully" in the investigation.

The whodunit has, to a degree, gripped Washington, and has spawned speculation about who may have tipped off Novak and possibly other journalists.

Over the weekend, the White House, responding to questions from reporters, sought to eliminate two men whose possible involvement had been rumored: I. Lewis "Scooter" Libby, who is Vice President Dick Cheney's chief of staff, and Elliot Abrams, director of Middle East affairs at the National Security Council.

"Neither of these individuals were involved in leaking this classified information, nor would they condone it," a White House spokeswoman said.

Previously, the White House had issued a similar denial on behalf of Karl Rove, the president's chief political advisor.

But White House officials have also attempted to draw a distinction between leaking the name of an operative and thereby breaking the law, and calling the attention of reporters to that information after it already has been made public.

Meanwhile, a lawyer for the Wilson family said it is considering a civil lawsuit against unspecified government officials for damages, on grounds including invasion of privacy and emotional distress, among other potential claims.

"There is no question that the Wilsons' legal rights have been violated in a number of ways," said Christopher Wolf, a privacy expert in the Washington office of the Proskauer Rose law firm.

"Whether a civil action to vindicate those rights makes sense at this time is something that we are carefully considering," he said.

Revealing the name of a covert operative is a federal crime, although few cases have been prosecuted under the law. The government must prove that the person who leaked the information knew that the operative's status was classified, and that the name was disclosed intentionally, rather than in casual conversation.

Former prosecutors say leak cases are next to impossible to prove without the cooperation of the journalists who receive them, and so far, in the case of the unmasked CIA operative, they aren't talking.

What's more, tracing phone conversations between journalists and administration officials may also prove exceedingly difficult.

The White House phone system is such that electronic records show only that calls come into or out of a main switchboard, rather than to specific extensions, an administration official said.

In addition, the regularity with which officials maintain separate phone logs varies, another former administration official said.

Some employees have their assistants catalog all calls placed and received, and those lists would have to be turned over, according to Justice Department investigators' document order. Others don't keep such careful records.