Rove was the source of the Plame leak... so it appears

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The Serious Implications Of President Bush's Hiring A Personal Outside Counsel For The Valerie Plame Investigation

By JOHN W. DEAN
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Friday, Jun. 04, 2004

Recently, the White House acknowledged that President Bush is talking with, and considering hiring, a non-government attorney, James E. Sharp. Sharp is being consulted, and may be retained, regarding the current grand jury investigation of the leak revealing the identity of Valerie Plame as a CIA covert operative.

(Plame is the wife of Bush critic and former ambassador Joe Wilson; I discussed the leak itself in a prior column, and then discussed further developments in the investigation in a follow-up column.)

This action by Bush is a rather stunning and extraordinary development. The President of the United States is potentially hiring a private criminal defense lawyer. Unsurprisingly, the White House is doing all it can to bury the story, providing precious little detail or context for the President's action.

According to the Los Angeles Times, Bush explained his action by saying, "This is a criminal matter. It's a serious matter," but he gave no further specifics. White House officials, too, would not say exactly what prompted Bush to seek the outside advice, or whether he had been asked to appear before the grand jury.

Nonetheless, Bush's action, in itself, says a great deal. In this column, I will analyze what its implications may be.

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)

Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style - not D.C.-style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of whom are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing appeared before any grand jury to reveal their sources. So this issue is headed toward a showdown. And under existing law, a journalist cannot refuse to provide information to a grand jury.

Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

There is, of course, one totally benign way to view the situation. "It is hard for me to imagine that Pat Fitzgerald is going to be going aggressively after the president," one Washington lawyer told the Los Angeles Times. "My guess is that he feels a need to conduct an interview because he needs to be in a position to say, 'I have done everything that could be done.'" The lawyer added, "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized."

But from what I have learned from those who have been quizzed by the Fitzgerald investigators it seems unlikely that they are interviewing the President merely as a matter of completeness, or in order to be able to defend their actions in front of the public. Asking a President to testify - or even be interviewed - remains a serious, sensitive and rare occasion. It is not done lightly. Doing so raises separation of powers concerns that continue to worry many.

Instead, it seems the investigators are seeking to connect up with, and then speak with, persons who have links to and from the leaked information - and those persons, it seems, probably include the President. (I should stress, however, that I do not have access to grand jury testimony, and that grand jury proceedings are secret. But the facts that are properly public do allow some inference and commentary about what likely is occurring in the grand jury.)

Undoubtedly, those from the White House have been asked if they spoke with the president about the leak. It appears that one or more of them may indeed have done so. .

If so - and if the person revealed the leaker's identity to the President, or if the President decided he preferred not to know the leaker's identity. -- then this fact could conflict with Bush's remarkably broad public statements on the issue. He has said that he did not know of "anybody in [his] administration who leaked classified information." He has also said that he wanted "to know the truth" about this leak.

If Bush is called before the grand jury, it is likely because Fitzgerald believes that he knows much more about this leak than he has stated publicly.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away - if indeed there have been any. It is remarkably easy to obstruct justice, and this matter has been under various phases of an investigation by the Justice Department since it was referred by the CIA last summer.

It seems very possible the leaker - or leakers, for two government sources were initially cited by columnist Robert Novak -- may have panicked, covered up his (or their) illegality, and in doing so, committed further crimes. If so, did the President hear of it? Was he willfully blind? Was he himself the victim of a cover-up by underlings? The grand jury may be interested in any or all of these possibilities.

Bush Needs An Outside Attorney To Maintain Attorney-Client Privilege

Readers may wonder, why is Bush going to an outside counsel, when numerous government attorneys are available to him - for instance, in the White House Counsel's Office?

The answer is that the President has likely been told it would be risky to talk to his White House lawyers, particularly if he knows more than he claims publicly.

Ironically, it was the fair-haired Republican stalwart Independent Counsel Kenneth Starr who decimated the attorney-client privilege for government lawyers and their clients - which, to paraphrase the authority Wigmore, applies when legal advice of any kind is sought by a client from a professional legal adviser, where the advice is sought in confidence.

The reason the privilege was created was to insure open and candid discussion between a lawyer and his or her client. It traditionally applied in both civil and criminal situations for government lawyers, just as it did for non-government lawyers. It applied to written records of communications, such as attorney's notes, as well as to the communications themselves.

But Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers.

In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege.

A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again.

This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

What Might a Private Attorney Advise Bush to Do?

It is possible that Bush is consulting Sharp only out of an excess of caution - despite the fact that he knows nothing of the leak, or of any possible coverup of the leak. But that's not likely.

On this subject, I spoke with an experienced former federal prosecutor who works in Washington, specializing in white collar criminal defense (but who does not know Sharp). That attorney told me that he is baffled by Bush's move - unless Bush has knowledge of the leak. "It would not seem that the President needs to consult personal counsel, thereby preserving the attorney-client privilege, if he has no knowledge about the leak," he told me.

What advice might Bush get from a private defense counsel? The lawyer I consulted opined that, "If he does have knowledge about the leak and does not plan to disclose it, the only good legal advice would be to take the Fifth, rather than lie. The political fallout is a separate issue."

I raised the issue of whether the President might be able to invoke executive privilege as to this information. But the attorney I consulted - who is well versed in this area of law -- opined that "Neither 'outing' Plame, nor covering for the perpetrators would seem to fall within the scope of any executive privilege that I am aware of."

That may not stop Bush from trying to invoke executive privilege, however - or at least from talking to his attorney about the option. As I have discussed in one of my prior columns, Vice President Dick Cheney has tried to avoid invoking it in implausible circumstances - in the case that is now before the U.S .Supreme Court. Rather he claims he is beyond the need for the privilege, and simply cannot be sued.

Suffice it to say that whatever the meaning of Bush's decision to talk with private counsel about the Valerie Plame leak, the matter has taken a more ominous turn with Bush's action. It has only become more portentous because now Dick Cheney has also hired a lawyer for himself, suggesting both men may have known more than they let on. Clearly, the investigation is heading toward a culmination of some sort. And it should be interesting.

The weird thing is, Judith Miller is headed for or is already in jail. Matthew Cooper, however, has said he will testify as his source has contacted him to give him permission to do so.

Why would Cooper get permission from the source and not Miller? Have I missed something here?

Is there possibly more than one source?

The Prosecutor Never Rests
Whether Probing a Leak or Trying Terrorists, Patrick Fitzgerald Is Relentless

By Peter Slevin
Washington Post Staff Writer
Wednesday, February 2, 2005; Page C01

CHICAGO

If Osama bin Laden ever stands trial, there's a prosecutor in Chicago waiting to face him down. As a driven young lawyer in the 1990s, Patrick J. Fitzgerald built the first criminal indictment against the man who would become the world's most hunted terrorist. Both men have moved on, you might say, but Fitzgerald still imagines that fantasy date before a judge.

"If you're a prosecutor, you'd be insane if you didn't want to go do that," Fitzgerald says in the well-appointed conference room of the U.S. attorney's office here. "If there was a courtroom and they said someone has to stand up and try him, would I hesitate to volunteer? No. I'm not saying I'd be the best person to try him at that point, but I'd be lying if I told you I wouldn't be interested."

"If you're not zealous, you shouldn't have the job," says U.S. Attorney Patrick J. Fitzgerald, whose subpoenas of reporters have prompted complaints. (John Gress For The Washington Post)

A solidly built former rugby player who enjoyed getting muddy and bloody well into his twenties, Fitzgerald is nothing but confident in his own skin. Just as he does not fear bin Laden, he seems to fret little that he is now tangling simultaneously with the Bush White House and the New York Times, two of the nation's most powerful and privileged institutions.

Fitzgerald, 44, is the special prosecutor investigating the leak of covert CIA operative Valerie Plame's name to columnist Robert Novak. The gifted son of an Irish doorman makes no bones about challenging the establishment. His office is also prosecuting former Illinois governor George Ryan and loyal associates of Chicago Mayor Richard Daley on influence-peddling and corruption charges.

He sees his task as getting to the bottom of things in ways as creative as the law allows. The law doesn't say you can't question a sitting president about his contacts or an investigative reporter about confidential sources. So Fitzgerald has done both, including quizzing Bush for more than an hour in the White House last June. His assiduous demands for answers from journalists alarms critics who believe he has created the greatest confrontation between the government and the press in a generation.

The Times editorial page has hammered Fitzgerald, saying that "in his zeal to compel reporters to disclose their sources, Mr. Fitzgerald lost sight of the bigger picture." His demand that Times reporter Judith Miller and Time magazine correspondent Matthew Cooper be forced to testify prompted the paper to call the case "a major assault" on relationships between reporters and their secret sources, the very essence of reporting on the abuse of power.

Fitzgerald is too politic to talk back, at least before he has wrapped up the case. A federal appeals panel in Washington is due to rule any day on whether the reporters must testify, and his work on the leak investigation is not done. But he appears to wonder what the fuss is all about. He says freely that he is zealous, a term he translates as passion within limits.

James B. Comey, deputy attorney general and unofficial president-for-life of the Pat Fitzgerald Booster Club, says no high-profile prosecutor ever provided less evidence that he was "doing something wacky."

"What's been interesting is seeing the media accounts and the columnists portray him as some sort of runaway prosecutor. That makes me smile," says Comey, who is largely responsible for Fitzgerald getting the Plame assignment. "Because there is no prosecutor who is less of a runaway than this guy."

The Untouchable

Fitzgerald frequently makes crime-fighting headlines in Chicago, where he took over the U.S. attorney's office just 10 days before 9/11. What's surprising is that he got the job at all. A New Yorker born and bred, Fitzgerald knew hardly a soul in Chicago, which was precisely the idea. Sen. Peter Fitzgerald (no relation) was looking for an outsider to battle the state's notoriously corrupt political apparatus.

The recently retired Illinois Republican tells a story about back in Al Capone's day, when Col. Robert McCormick, the imperious publisher of the Chicago Tribune, called FBI Director J. Edgar Hoover and demanded that he send someone to Chicago who could not be bought.

Hoover sent the untouchable Eliot Ness.

Now, as then, the U.S. attorney's job has the gloss of patronage. The late Chicago mayor Richard J. Daley used to say the U.S. attorney in Chicago is one of the three most important people in the state, and Peter Fitzgerald said he wanted "someone who couldn't be influenced either to prosecute someone unfairly or protect someone from being prosecuted unjustly."

So the senator, who as the state's senior Republican had the right to recommend a candidate to the White House, went to one of Hoover's successors for advice.

"I called Louis Freeh and said, 'Who's the best assistant U.S. attorney you know of in the country?' He said, 'Patrick Fitzgerald in the Southern District of New York.' " The senator then called Mary Jo White, who ran the New York office. Same question. Same answer.

At the time, Patrick Fitzgerald was trying suspects in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He thought the call from a senatorial aide was a practical joke by one of his buddies. But as soon as their interview was over, the senator knew he had his man.

"I thought, 'He is the original Untouchable,' " Peter Fitzgerald says. "You could just see it in his eyes that he was a straight shooter. There were no levers that anyone had over him. He had no desire to become a partner in a private law firm. He has no interest in electoral politics. He wanted to be a prosecutor."

The weird thing is, Judith Miller is headed for or is already in jail. Matthew Cooper, however, has said he will testify as his source has contacted him to give him permission to do so.

Why would Cooper get permission from the source and not Miller? Have I missed something here?

Is there possibly more than one source?

Selective security: as easy as falling off a bike.

07.07.2005 Lawrence O'Donnell

The One Very Good Reason Karl Rove Might Be Indicted

Two years ago, when I first read the federal law protecting the identities of covert agents, my reaction was the same as everyone else who reads it -- this is not an easy law to break. That's what I said on Hardball then in my first public discussion of the outing of Valerie Plame, and that's what I said on CNN the other night. Let's walk through the pieces that would have to fall into place for Karl Rove to have committed a crime when he revealed Plame's identity to Matt Cooper.

First, and most obviously, Valerie Plame had to be a covert agent when Rove exposed her to Cooper. It's not obvious that she was. The law has a specific definition of covert agent that she might not fit -- an overseas posting in the last five years, for example. But it's hard to believe the prosecutor didn't begin the grand jury session with a CIA witness certifying that Plame was a covert agent. If the prosecutor couldn't establish that, why bother moving on to the next witness?

Second, Rove had to know she was a covert agent. Cooper's article refers to Plame as "a CIA official." Most CIA officials are not covert agents.

Third, Rove had to know that the CIA was taking "affirmative measures" to hide her identity. Doesn't seem like the kind of thing a political operative would or should know.

Fourth, Rove had to be "authorized" to have classified information about covert agents or at least this one covert agent. Doesn't seem like the kind of security clearance a political operative would or should have.

I'll be surprised if all four of those elements of the crime line up perfectly for a Rove indictment. Surprised, not shocked. There is one very good reason to think they might. It is buried in one of the handful of federal court opinions that have come down in the last year ordering Matt Cooper and Judy Miller to testify or go to jail.

In February, Circuit Judge David Tatel joined his colleagues' order to Cooper and Miller despite his own, very lonely finding that indeed there is a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources. He based his finding on Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop new privileges "in the light of reason and experience." Tatel actually found that reason and experience "support recognition of a privilege for reporters' confidential sources." But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to "the gravity of the suspected crime."

Judge Tatel's opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to "[h]aving carefully scrutinized [the prosecutor's] voluminous classified filings."

Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case "which involves the alleged exposure of a covert agent." Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters' shield law -- but in the end, he couldn't bring himself to do it in this particular case. In his final paragraph, he says he "might have" let Cooper and Miller off the hook "[w]ere the leak at issue in this case less harmful to national security."

Tatel's colleagues are at least as impressed with the prosecutor's secret filings as he is. One simply said "Special Counsel's showing decides the case."

All the judges who have seen the prosecutor's secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.

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