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 Ashcroft's decision.
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 investigation.
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 been broken.)
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 jury.
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.
John Dean is the former White House counsel for President Richard Nixon and author of The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court. This commentary first appeared on FindLaw.com (www.findlaw.com).
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