Who Talked? It Wasn't the Special Prosecutor

By Richard B. Schmitt

Oct. 30, 2005 12 AM PT

Times Staff Writer

WASHINGTON — With U.S. troops unable to find expected weapons of mass destruction in Iraq, a group of officials met aboard Air Force Two in mid-2003 to discuss how to respond to the growing prominence of one particular critic of President Bush’s war policy. Vice President Dick Cheney was on the flight. So was his chief of staff, I. Lewis “Scooter” Libby.

It was a scene that suggested intrigue. And if it had occurred as part of a past Washington scandal, the investigator who revealed it probably would have included a wealth of details, naming everyone present and laying out what they said.

But when Special Prosecutor Patrick J. Fitzgerald announced Friday that he was wrapping up his two-year investigation of the CIA leak case, he offered the barest sketch of the meeting on Air Force Two -- and left many central questions in the case unanswered. Did Cheney help map out strategy with Libby during the flight? Did officials talk about Valerie Plame, the wife of the Bush critic, and that she worked for the CIA -- a detail that was soon leaked to the media?

Did Cheney attend the meeting, or did he sit elsewhere on the plane?

Answering none of these questions, Fitzgerald’s 22-page indictment, with its bare-bones outlines of the case, provided a bracing lesson on what major political investigations have become now that they are no longer conducted by independent counsels, and how the culture of rooting out scandal in Washington has fundamentally changed.

Ever since Watergate, special federal investigations of political scandals have often ended with detailed accounts of the inner workings of government. The probes might take years; they might cost millions; but at the end, they often provided a rich, detailed story of episodes in question.

The reason was the independent counsel law, created by Congress in 1978 because it felt the executive branch could not be trusted to investigate itself in cases of alleged abuse and corruption. Independent counsels gave the nation book-length -- even multi-volume examinations of the Iran-Contra affair and of President Clinton’s relations with a former intern. But Congress in 1999 chose not to renew the law authorizing them, out of concern that they had been used to pursue partisan witch hunts.

Fitzgerald, by contrast, is a special prosecutor, charged with bringing violations of the law to court, rather than information to the court of public opinion.

His spare account suggests that with the independent counsel statute gone, the public is apt to know far less about the actions of elected officials and government bureaucrats when they are engaged in conduct that may be questionable but that does not violate the law.

“My job is to investigate whether or not a crime was committed, can be proved and should be charged,” Fitzgerald said Friday as he announced an indictment of Libby for allegedly lying to the FBI and a grand jury investigating the leak case. “I’m not going to comment on what to make beyond that. It’s not my jurisdiction, not my job, not my judgment.”

Because only Libby was charged, he said, he would not be answering questions about the actions of other officials. Some legal experts see the new practice as a good development, restoring proper restraint as investigators ferret out information about wrongdoing. Prosecutors should focus strictly on bringing and proving charges in court; watchdogs such as Congress and the media can use their own powers to sort out lapses in judgment by policymakers, this thinking goes.

“There is a trade-off,” said John Q. Barrett, a professor at St. John’s University law school in New York and a former associate independent counsel. “The public does not automatically get the fruits of the good information that a criminal investigation does gather.”

At the same time, he said, it can be unfair to people who are investigated but never charged to have their names publicly exposed. And public disclosure of information could violate “institutional promises” built into the justice system. Grand juries can compel people to testify, for instance, but witnesses are assured that their testimony is strictly confidential.

Some people said that by releasing a tightly focused indictment of Libby, Fitzgerald showed that the nation is better off than when independent counsels such as Kenneth W. Starr investigated politicians.

Starr’s original mandate was to investigate the failed Arkansas real estate deal known as Whitewater, but his investigation of President Clinton yielded a 445-page account that included substantial information about the president’s sexual relations with White House intern Monica Lewinsky. Recounting episodes of oral sex, phone sex and, in one case, the use of a cigar as a sex prop, the report even said which parts of Lewinsky’s body the president touched during their encounters.

Where Fitzgerald released only information that supported the charges in the indictment, Starr’s voluminous account led to accusations that he had gratuitously invaded the private life of the president and the first family, and that he had veered far away from his original mandate. Starr said that the details were needed to establish that Clinton had lied under oath.

“Mr. Fitzgerald has proven that we are all better off without an independent counsel law,” said Lanny J. Davis, a lawyer and Clinton advisor during the Lewinsky affair. “The contrasts between him and Ken Starr could not be more stark. We should not use the criminal justice system to make findings of fact that are not in a courtroom. That is why we have due process.”

But others said that system could also deprive the public of crucial information, and that prosecutors could view their role too narrowly. Public officials should be held to a higher standard of conduct than ordinary citizens and should not complain when the public demands a full and open accounting of their actions, this thinking goes.

The GOP-controlled Congress has shown no interest in wanting to learn more about the Plame case, which has focused on Republicans in the White House. Fitzgerald himself has indicated he isn’t interested in cooperating with a congressional probe, saying in a letter to House Democrats on Friday that he was barred from releasing information to them for oversight of the case because of rules governing the secrecy of grand jury testimony.

The indictment against Libby alleges that he talked to reporters about Plame and her CIA affiliation. Bush’s critics have said that this was meant to undercut Plame’s husband, former diplomat Joseph C. Wilson IV, who was gaining attention in mid-2003 for saying that the administration bolstered its case for invading Iraq by exaggerating Saddam Hussein’s interest in acquiring nuclear materials.

But left unclear in the indictment, several people noted, is whether Libby talked to reporters on his own impetus, or whether he was responding to pressures from more senior officials. By releasing information only on the perjury, lying and obstruction charges he intends to take to trial, Fitzgerald left a key question unanswered, several people said.

“The question is, is this a White House that is creating an environment of vengeance and punishment against people who disagree with them, or is this just an example of one guy who went too far?” asked Kenneth Parsigian, a Boston lawyer who was an associate to Independent Counsel Lawrence E. Walsh during the probe of the Iran-Contra affair. “Without a report, that may never be known.”

It is a question that resonates with the Iran-Contra case, Parsigian said. President Reagan and other administration figures were pressed on what they knew about the arrangement that Marine Lt. Col. Oliver North had made to fund Nicaraguan rebels with proceeds from the sale of arms to Iran. The aid to the rebels came in direct violation of a congressional ban.

Walsh’s 1993 report on the Iran-contra matter -- a 566-page volume, plus appendices -- found no credible evidence that Reagan had broken the law but concluded that he had “knowingly participated or at least acquiesced” in covering up the scandal. It also discussed the roles of numerous administration figures and outside persons who were never charged, and it included a compendious supplement in which they voiced their objections to the findings.

The possible involvement of Cheney or others in the White House in the leak case is just one of the mysteries remaining in the wake of the indictment of Libby.

Fitzgerald was appointed to find out who leaked Plame’s name to the media, and whether laws were violated in the process. Her name first appeared in a July 14, 2003, article by syndicated columnist Robert Novak.

But the indictment does not fully reveal -- and Fitzgerald refuses to say -- who leaked the information to Novak. Novak wrote that two sources told him about Plame, but the Libby indictment only mentions one, who is identified only as “Official A.” Sources familiar with the case have said that Official A is Karl Rove, deputy chief of staff to the president.

Fitzgerald also won’t discuss the actions of Rove. One of Bush’s closest advisors, Rove testified before the grand jury four times. Rove has said through his lawyer that he has been told by Fitzgerald that he could still be charged. But if he is not prosecuted, the story of his actions are likely to remain secret.

Fitzgerald acknowledged the frustration that some people feel in wanting to learn more about the actions of public officials. “I know that people want to know whatever it is that we know, and they’re probably sitting at home with TVs thinking, ‘I want to jump through the TV, grab him by his collar and tell him to tell us everything they’ve figured out over the last two years,’ ” the prosecutor said Friday.

“We just can’t do that,” he said, “not because we enjoy holding back information from you. That’s the law.”