The Leak of CIA Agent Valerie Plame Wilson's Identity: Why Competing Congressional and Special Counsel Investigations Will Inevitably Cause Problems

by John W. Dean

With media attention firmly on the Democratic presidential primaries, little notice has been given to another significant, and developing, national topic. Recently, several important events have occurred relating to the investigation of the leak of the CIA undercover identity of Valerie Plame, wife of Bush Administration critic former ambassador Joe Wilson. These developments are worthy of close examination.

In July 2003, Robert Novak disclosed the leaked information to the public. Since then, the tempest surrounding the disclosure has only grown.

At the end of December 2003, a Special Counsel, Chicago U.S. Attorney Patrick Fitzgerald, was appointed. Fitzgerald's appointment (and Attorney General Ashcroft's recusal of himself in the matter) suggested, as I noted in a prior column, that things were heating up in the investigation. And now, more events have unfolded.

On January 21 a group of former intelligence officers wrote to Congress requesting, according to the New York Times, "an immediate inquiry" into the disclosure. As the Times noted, "[i]t is unusual for former intelligence officers to petition Congress on a matter like this."

In addition, the same day, Representative Rush Holt (D. NJ), a member of the House intelligence committee, introduced a privileged Resolution of Inquiry relating to the Plame Wilson leak. (A resolution of inquiry is an infrequently used technique to obtain information from the executive branch.) Holt was joined by nine other colleagues.

The Resolution requested that President Bush, Attorney General Ashcroft, Secretary of State Powell and Secretary of Defense Rumsfeld provide Congress "with factual information in their possession relating to the disclosure of the identity and employment of Ms. Valerie Plame as a covert employee of the CIA."

Then, five days later, on January 26, six senior Democrats in Congress called for the Government Accounting Office to determine whether the White House followed proper security procedures for protecting Plame's identity. (They were Senate Minority Leader Tom Daschle (D. SD), Senators Jay Rockefeller (D. WV) and Joe Lieberman (D. CN)), House Minority Leader Nancy Pelosi (D. CA) and Representatives Henry Waxman (D. CA) and John Conyers (D. MI)).

In short, neither Ms. Plame's former colleagues nor the Democrats are inclined to give the Administration a pass on this matter. This matter is not going to go away. So what, if anything, do these actions mean?

The Status Of The Justice Department Investigation Of The Plame Leak

Recently, Time magazine reported, and the New York Times further confirmed, that Fitzgerald has assembled a grand jury in Washington to investigate the Plame leak, and he is currently presenting evidence to the grand jury.

The New York Times noted that, "Mr. Fitzgerald has been pushing to obtain the cooperation of witnesses close to the White House who might otherwise be subpoenaed to testify before the grand jury." (But it didn't fill in the details: The Times further reports that little is known about what Fitzgerald is, or is not, doing, because he remains U.S. Attorney in Chicago, and is not discussing his D.C. duties, or even his travel there, with Chicago associates.)

The newspaper added that such cooperation "often results in agreement in the form of immunity pledges or plea deals that can provide prosecutors with additional evidence to use against other suspects." As I suggested in my prior column, I expect that this has happened, or soon will happen, in this case. For the evidence strongly suggests that a witness has emerged who knows what happened, and that witness is cooperating the government in exchange for immunity.

Needless to say, trying to read the meaning of hearsay reports of secondhand puffs of smoke, is foolish. But what is clear is that Special Counsel Fitzgerald is proceeding, and this raises the potential of a clash with the interest of Congress in this whodunit.

The Resolution of Inquiry Into The Plame Case

With ten members of Congress so intensely interested in this matter they are employing a Resolution of Inquiry to pursue it, the Justice Department will get the message that it is one day going to have to account for this investigation..

Such resolutions have been around since the founding of the nation, but they are only used by the House of Representatives. Any member of the House can introduce such a resolution. Under House Rules, a resolution of inquiry is addressed to the head of an executive department, including the president, and must be limited to seeking only factual information. It is considered a "privileged" resolution because it cannot be ignored, or easily buried.

After being introduced, the resolution is referred to the House committee with jurisdiction over the matter. The committee must report back to the House after fourteen legislative days. At that time, it is voted on by the full House.

The current resolution relating to the Plame Wilson leak has been referred to the House Permanent Select Committee on Intelligence, which almost certainly will react unfavorably.

Since Special Counsel Fitzgerald is actively pursuing the investigation before a grand jury, the committee will doubtless say that producing such information may interfere with the criminal investigation. And the full House will agree.

Nevertheless, those who sought the resolution will have made their point -- and made it strongly.

When introducing his resolution, Rush Holt explained his concern with "the absence of public outrage among senior officials in our intelligence community and in this administration."

Obviously, as Holt suggests, the Administration would prefer that the public forget about this damaging leak. Forcing Republicans to vote against the resolution is a smart move on his part. After all, the resolution merely asks the executive branch to provide factual information about what is plainly a breach of national security.

Arguably, then, the resolution should be a no brainer for any patriot. Accordingly, voting against it will have negative political repercussions for some House Republicans. It will not be an easy vote to explain, for the information the resolution requests plainly should be provided and, more than this, should be made public.

Congressional Versus Criminal Proceedings

While Congressman Holt's resolution keeps needed pressure on the investigators, and raises public awareness of the issues, it may also have a baleful effect -- one that the sponsors may not have anticipated. The effect may be to invites abuses by Congress.

To see how this might occur, it's necessary to review some history. An couple of examples will make the point.

In 1980, the Department of Justice and FBI were investigating members of Congress in connection with the Abscam matters. (Abscam arose when FBI agents ran a sting operation pretending to be wealthy Arab sheiks willing to pay well for political favors). The investigation led to criminal charges against several Congressmen.

A resolution of inquiry was filed seeking to discover what the FBI was doing. But the resolution was overwhelmingly opposed by the House Judiciary Committee because it might jeopardize the investigation. It then went to the full House. During the floor debate, a serious issue was raised of whether the executive branch might be setting up the legislative branch with this sting operation.

In the end, however, Congress voted overwhelmingly (404 to 4) to table the resolution. Otherwise, it feared it would appear that it was protecting itself by interrupting, and possibly derailing, the Justice Department prosecutions of its own members.

A parallel situation arose during Iran-Contra. Congress was warned that its investigation could result in an inability to prosecute wrongdoers. Nevertheless, it took that risk, and called Oliver North and John Poindexter to testify; granted them immunity from prosecution; and compelled them to testify about the Reagan White House's scheme of providing arms for hostages and then forwarding the funds from the sales to the Nicaraguan Contras notwithstanding a Congressional prohibition.

Later, the Independent Counsel prosecuted and convicted North and Poindexter despite their Congressional immunity. But their cases were later thrown out. The court held that their immunized testimony had tainted the testimony of witnesses the government used to prosecute them. In the end, immunity from being prosecuted based on their Congressional testimony meant, in practice, that North and Poindexter were immune from being prosecuted at all.

The North and Poindexter case showed how Congress's decision to immunize witnesses could thwart later attempts to prosecute them. Nevertheless the U.S. Court of Appeals for the District of Columbia stressed that the decision of whether or not to grant such immunity in such situations was still Congress's to make: "[t]he decision as to whether the national interest justifies … the enforcement of the criminal laws is, of course, a political one to be made by Congress."

Iran-Contra Independent Counsel Lawrence Walsh later wrote that from the outset of his assignment, he realized that Congress could "crush" his work. In his eyes, Congress's job in discovering the facts, and his job in prosecuting wrongdoers, were not compatible. And he turned out to be absolutely correct: Congress effectively did preclude efforts to prosecute accused wrongdoers.

This dynamic shows how the Democrats' resolution of inquiry seeking information on the Plame leak might dramatically boomerang against them. Suppose Republicans actually favor the resolution -- and it passes in the Full House. The result may be just the opposite of the justice the Democrats desire.

Revealing information about the Plame investigation could effectively result in a similar tainting of the case. And doing so could crush the work of Special Counsel Fitzgerald -- and, in the bargain, protect at least some of the insiders who made the leak. Since the insiders were, according to Novak, "senior Administration officials" (and are believed by most to be White House officials), inadvertently disrupting any potential prosecution is exactly what the Democrats don't want.

The resolution of inquiry, thus, poses a conundrum for the Democrats: They want to ask the question, but they may not want the answers they will receive. For the Republican to try to quell the investigation by this means, however, would be high risk. And the Democrats, now knowing the investigation is proceeding, no doubt are prepared to wait to see what happens.

Meanwhile, the Democrats have handed the Administration an equally difficult problem with the inquiry by the General Accounting Office.

General Accounting Office Investigation of Plame Leak

There is a touch of de ja vu in the request that the General Accounting Office determine whether the White House followed proper security procedures to protect Valerie Plame's covert identity. As I discussed in an earlier column, Vice President Cheney has set the precedent; he stonewalled an earlier information request by GAO all the way to the U.S. District Court for the District of Columbia, and won. (That requested related, as readers may recall, to Cheney's Energy Task Force meetings.) Indeed, Walker v. Cheney -- which I discussed in another column -- will doubtless haunt this more recent GAO inquiry.

There is every reason to believe the White House will once again go into full stonewalling mode when GAO comes knocking with respect to the Plame Wilson leak. Doubtless, it will make some new claim that GAO has no authority to pursue the matter.

But doing this in a campaign year, given the Administration's record of excessive secrecy, may be risky. This is a very legitimate GAO inquiry, so it will be interesting to see how the White House handles it. No president wants to claim executive privilege in an election year.

This is an issue of fundamental government operations -- of the protection of national security secrets. There could not be a more important area of Congressional inquiry in this age of terrorism. But we'll see.

John W. Dean, a FindLaw columnist, is a former counsel to the President.