Public Might Never See Results of CIA Leak Probe BY JOSH GERSTEIN - Staff Reporter of the Sun
If federal prosecutors manage to get to the bottom of how CIA operative Valerie Plame's identity was leaked to the press - an investigation that has led to one reporter's incarceration - sharing their conclusion with the public may require something quite ironic: another leak.
Attorneys involved in the case say there is no clear legal authority for the special prosecutor pursuing the politically charged investigation, Patrick Fitzgerald, to explain how Ms. Plame's identity was disclosed. In fact, if Mr. Fitzgerald chooses not to charge anyone with a crime, it might well be illegal for him or any other government official to explain precisely who was and was not involved.
"It's an extremely big issue," said a former federal prosecutor, Paul Rosenzweig.
The inquiry, which is said to be in its final stages, focuses on whether top Bush administration officials disclosed Ms. Plame's CIA employment in an attempt to smear her husband, Joseph Wilson IV, a former diplomat who sharply disputed the administration's claims about Iraq's efforts to acquire nuclear materials in Africa.
While the prospects for an authoritative official report on the investigation remain unclear, some facts are emerging piecemeal. Newsweek said yesterday it obtained an e-mail suggesting that Mr. Bush's top political strategist, Karl Rove, mentioned Mr. Wilson's wife's CIA connection to a Time magazine journalist, Matthew Cooper, three days before Ms. Plame was exposed in a syndicated column. However, there was no indication that Mr. Rove used her name or knew she was considered to be undercover. If Mr. Rove did not know that Mr. Wilson's wife was a covert agent, it would be difficult for prosecutors to bring criminal charges against him, legal analysts said.
Mr. Cooper, who wrote that the July 11, 2003, chat took place "on double super secret background," said Mr. Rove denied reports that Vice President Cheney or the then-director of central intelligence, George Tenet, authorized Mr. Wilson's CIA-sponsored trip to Africa in 2002 to investigate Iraq's alleged attempts to acquire nuclear materials. According to the e-mail, Mr. Rove said Mr. Wilson's wife arranged the trip. The White House official said the marital connection rendered Mr. Wilson's assessment about the Iraqis flawed and suspect.
An attorney for Mr. Rove, Donald Luskin, did not return calls seeking comment for this story. A Time spokeswoman declined to comment on the Newsweek account.
Mr. Rove apparently saved Mr. Cooper from jail last week by releasing him from the promise of confidentiality. Another journalist, Judith Miller of the New York Times, is behind bars for refusing to discuss her reporting with the grand jury investigating the case.
Mr. Fitzgerald, who is the U.S. Attorney in Chicago, took over the investigation in December 2003 after Democrats complained that the Justice Department could not handle the probe impartially. He was named as a special counsel, a position that allows him to act with greater independence than other federal prosecutors, but not quite as freely as independent counsels appointed under the statute that expired in 1999.
Few in Washington mourned the demise of that law, which was widely seen as encouraging expensive, open-ended investigations that were virtually immune from external oversight. With the law gone, the Justice Department moved to a similar but more discretionary system based on the agency's own regulations,.
"Exactly how this is going to work, nobody really knows," a press attorney who has been closely following the inquiry, Nathan Siegel, said. "The situation cries out for some sort of public accounting."
Mr. Fitzgerald faces two main obstacles to a public description of his findings. First, much of his probe has involved testimony before a grand jury. Federal court rules prohibit prosecutors from discussing any matter occurring before a grand jury. Second, the federal Privacy Act bars many disclosures of information about individuals contained in government files.
The independent counsel law effectively overrode those legal strictures, but the department's regulations, which do mention the possibility of a public report, cannot waive the Privacy Act and grand jury secrecy rules.
"It's probably more likely than not, if charges were not brought, you would not have a report," a deputy attorney general under President Clinton, Eric Holder, said.
Mr. Holder acknowledged that such an outcome would leave "unanswered questions," but he said the existing rules are a sensible way to discourage prosecutors from taking pot shots at uncharged individuals. "Public officials don't have anything more important than their reputation. To the extent you have an investigation of somebody and decline to bring charges, as much as I would like to actually die to find out what happened here, you generally let it go," the former Justice Department official said.
A former independent counsel, Curtis von Kann, said the uncertainty underscores his view that Washington was too hasty to abandon the independent counsel law. "I was one of the minority of folks who thought we shouldn't throw the baby out with the bathwater," he said. "It just all kind of bubbled up and got in everybody's craw and they said, 'Let's get rid of those things.' Then, a few years down the pike, you say, 'Hey, how are we going to find out what happened here?'"
Mr. Rosenzweig, who was an attorney for the independent counsel probe that led to Mr. Clinton's impeachment, noted that the law does allow some grand jury reports on organized crime to be made public. "Historically, the department has been unwilling to broaden that for use in cases like this," he said. "I would certainly counsel them to do so for political reasons."
While prominent attorneys have predicted the Plame probe will close without anyone being charged, Mr. Holder said they may be underestimating Mr. Fitzgerald's determination. "For those who say there's not likely to be prosecutions, I say, hold on, the jury's still out on that," he said.