What Ashcroft Was Told
By Murray Waas, National Journal
© National Journal Group Inc.
Thursday, June 8, 2006
Then-Attorney General John Ashcroft continued to oversee the Valerie Plame-CIA leak probe for more than two months in late 2003 after he learned in extensive briefings that FBI agents suspected White House aides Karl Rove and I. Lewis "Scooter" Libby of trying to mislead the FBI to conceal their roles in the leak, according to government records and interviews. Despite these briefings, which took place between October and December 2003, and despite the fact that senior White House aides might become central to the leak case, Ashcroft did not recuse himself from the matter until December 30, when he allowed the appointment of a special prosecutor, Patrick Fitzgerald, to take over the investigation.
According to people with firsthand knowledge of the briefings, senior Justice Department officials told Ashcroft that the FBI had uncovered evidence that Libby, then chief of staff to Vice President Dick Cheney, had misled the bureau about his role in the leaking of Plame's identity to the press.
By November, investigators had obtained personal notes of Libby's that indicated he had first learned from Cheney that Plame was a CIA officer. But Libby was insisting in FBI interviews that he had learned Plame's name and identity from journalists. Libby was also telling investigators that when he told reporters that Plame worked for the CIA, he was only passing along an unsubstantiated rumor.
Officials also told Ashcroft that investigators did not believe Libby's account, according to sources knowledgeable about the briefings, and that Libby might have lied to the FBI to defend other -- more senior -- administration officials.
Ashcroft was told no later than November 2003 that investigators also doubted the accounts that Rove, President George W. Bush's chief political adviser, had given the FBI as to how he, too, learned that Plame was a CIA officer and how he came to disclose that information to columnist Robert Novak.
It was Novak who, in a July 14, 2003, syndicated column, outed Plame as a CIA employee, relying on Rove as one of his sources.
In a briefing devoted specifically to Rove and Novak, sources said, officials told Ashcroft that investigators believed it was possible that the presidential aide and the columnist had devised a cover story to present to the FBI to make it appear that Rove had not been a source for Novak's column.
Ashcroft's decision to continue overseeing the leak investigation through December of 2003 was a sore point among some federal investigators: Rove and Libby were top aides to the president and vice president at the time, and Rove also had been a political consultant to Ashcroft in his senatorial and gubernatorial campaigns.
Since the Watergate era, attorneys general have traditionally disqualified themselves from politically sensitive investigations that involve their friends and political associates, or those of the presidents they serve. Stephen Gillers, a professor of legal ethics at New York University, said in an interview that Ashcroft should have recused himself from the Plame probe "once he learned that the people professionally trained to draw these inferences" -- namely, the FBI investigators -- "believed there was substantial reason that Rove and Libby were involved in the leak."
Gillers added: "There is always going to be an interim period during which you decide you will recuse or not recuse. But [Ashcroft] should have had an 'aha!' moment when he learned that someone, figuratively, or in this case literally, next door to the president of the United States -- who was Ashcroft's boss -- was under suspicion."
Ashcroft declined to comment for this article. But in October 2003, Mark Corallo, then a spokesman for Ashcroft, said in an interview with this reporter that Ashcroft maintained an intense interest in the probe because he considered it imperative to determine who leaked Plame's identity. "The attorney general wants this to be investigated thoroughly and promptly, and to that end, he wants to be informed of the progress of the investigators," Corallo said. Corallo now serves as a spokesman for Rove on the CIA leak case.
Current and former Justice officials not directly involved in the case said in interviews for this article, almost without exception, that once senior aides to both the president and vice president came under suspicion, Ashcroft should have recused himself entirely from the case.
Ashcroft's Deep Interest
Although it has been known that Ashcroft was briefed on the Plame investigation in the months before Fitzgerald was appointed, details of those briefings have not emerged until now.
The Justice Department's involvement in the case began with the announcement on September 30, 2003 -- two and a half months after Plame was outed in Novak's column -- that the department was responding to a CIA request to launch an investigation.
Plame, who had a covert agency job working on issues of weapons proliferation, was unmasked at a time when the White House was conducting a broad effort, led by Cheney and his staff, to discredit Plame's husband, former Ambassador Joseph C. Wilson IV.
In March 2002, the CIA had sent Wilson to Niger to look into allegations that Saddam Hussein had tried to procure weapons-grade uranium from the African nation. Wilson reported back that he found no factual basis for the allegations. President Bush and other senior administration officials, however, cited the Niger-Iraq connection as one reason for invading Iraq. In the spring of 2003, Wilson was publicly alleging that the Bush administration had misrepresented intelligence information to make its case to go to war with Iraq. Wilson's best-known account of his findings in Niger appeared in a July 6, 2003, New York Times op-ed.
Looking to undermine Wilson's credibility, Rove, Libby, and at least one other senior administration official told reporters that Plame had arranged for her husband's CIA-sponsored trip, casting it as nepotism.
On September 30, the same day that Justice announced the leak probe, Bush praised the decision: "There's just too many leaks, and if there is a leak out of my administration, I want to know who it is. If the person violated [the] law, the person will be taken care of. And so I welcome the investigation."
In a statement that day, Ashcroft, perhaps sensitive to the fact that he was a political appointee of the president, said that prosecutors and FBI agents "who are and will be handling the investigation are career professionals with extensive experience in handling matters involving sensitive national security information."
Ashcroft showed a deep interest in the investigation from its very inception, seeking regular briefings on its progress, according to Corallo, to the congressional testimony of senior Justice officials who briefed the attorney general on the matter, and to interviews with current and former federal law enforcement officials.
The briefings for Ashcroft were conducted by Christopher Wray, then the assistant attorney general in charge of the Criminal Division, and John Dion, a 30-year career prosecutor who was the day-to-day supervisor of the investigation.
On October 16, about two weeks after the investigation had begun, Ashcroft assured the public, "I believe that we have been making progress that's valuable in this matter." Asked about the possible appointment of a special prosecutor, Ashcroft said, "I have not foreclosed any options in this matter."
What the public did not know was that two days earlier, the FBI had interviewed Libby for the first time. It was in that interview that Libby first insisted that in mentioning to reporters -- specifically Matthew Cooper of Time magazine and Judith Miller of The New York Times -- that Plame worked for the CIA, he had been careful to point out that the information was unsubstantiated gossip he had heard from other journalists. Libby also told the FBI that a day or two before he spoke to Cooper and Miller, he was told about Plame by NBC Washington Bureau Chief Tim Russert.
According to Libby's first FBI interview, which is summarized in the grand jury indictment of Libby that was handed up in October 2005: "During a conversation with Tim Russert on NBC News on July 10 or 11, 2003, Russert asked Libby if Libby was aware that Wilson's wife worked for the CIA; Libby responded to Russert that he did not know that, and Russert replied that all the reporters knew it." On July 12, 2003, Libby spoke with Miller and Cooper, telling them that Plame worked for the CIA.
In November 2003, the FBI interviewed Libby a second time, and information derived from that briefing was also passed on to Ashcroft, sources said.
Around this same time, FBI agents had obtained Libby's own notes stating that Cheney, not Russert, was the person who told Libby about Plame's CIA connection. Also by then, investigators had obtained other government records and the accounts of other witnesses indicating that Wilson's Niger mission and Plame's possible role in sending her husband to Africa were major preoccupations for the vice president. As the agents interviewed Libby, they showed him his own notes on Cheney's disclosure to him about Plame's CIA job.
According to the FBI report cited in Libby's indictment, when Russert supposedly told Libby that Plame worked for the CIA, "Libby was surprised by this statement because, while speaking with Russert, Libby did not recall that he previously had learned about Wilson's wife's employment from the vice president."
Although the FBI had not yet been able to interview any of the journalists -- Russert, Cooper, or Miller -- they were skeptical of Libby's account, sources said. Word of their concern was passed up to Ashcroft in a routine briefing on the status of the leak probe.
Within, at most, 10 days of the interview with Libby, sources said, Ashcroft was briefed not only on what Libby had told the FBI but also on the evidence that had made FBI agents and prosecutors doubt his story. Later, investigators obtained Libby's handwritten notes that showed that Libby had learned about Plame from Cheney.
Wray, the head of the criminal division, and Bruce C. Swartz, a deputy assistant attorney general who oversees criminal investigations involving sensitive national security matters, were later told of the notes' existence and of the investigators' belief that Libby might have been holding back to protect Cheney. It is unclear, however, whether Ashcroft was briefed in detail regarding Cheney before he recused himself from the Plame case.
Other papers that the White House later turned over to federal investigators would show that Cheney had been a driving force in encouraging Libby to discredit Wilson's allegations against the Bush administration.
Both Libby and Cheney have adamantly denied that the vice president ever encouraged Libby to leak Plame's CIA status to the media. But over time, both Fitzgerald and attorneys for Libby have presented new information in court filings that Cheney was personally involved in the broader effort against Wilson.
In papers filed in federal court on May 12, 2006, for example, Fitzgerald noted that Cheney was so upset over Wilson's New York Times op-ed that the vice president made handwritten notes in the margin of a photocopy of the column. Cheney wrote in the margin: "Have they done this sort of thing before? Send an Amb[assador] to answer a question?" referring to the CIA's decision to send a former ambassador, Wilson, on an intelligence fact-finding mission. Cheney also wrote: "Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"
In his filing, Fitzgerald wrote: "Those annotations support the proposition that publication of the Wilson op-ed acutely focused the attention of the vice president and the defendant -- his chief of staff -- on Mr. Wilson, on assertions made in his article, and on responding to those assertions." It is unclear whether investigators reviewed Cheney's annotations while Ashcroft was overseeing the CIA probe, but sources say that investigators had by then already theorized that Libby might be trying to stymie the FBI.
Charles Wolfram, a professor emeritus of legal ethics at Cornell Law School, said the "most distressing" ethical aspect of the case was that Ashcroft continued overseeing the Plame probe even after Cheney's name arose. "This should have been a matter of common sense," Wolfram said. Ashcroft "should have left it to career prosecutors whether or not to go after politically sensitive targets. You can't have Ashcroft investigate the people who appointed him or of his own political party."
Unique Hurdles
Around the same date that Libby was interviewed, the FBI also questioned Rove for the first time. During that interview, and later in his initial appearance before the grand jury, Rove did not disclose that he had spoken about Plame to Time magazine's Cooper. Ashcroft wasn't briefed about the omission because at that time investigators apparently didn't know that Rove and Cooper had talked on July 9, 2003, just before Novak's column appeared.
Rove's failure in the early stages of the CIA leak probe to provide information on his conversation with Cooper about Plame is one of the reasons Rove is still under investigation by Fitzgerald.
Although FBI investigators did not know of the Rove-Cooper phone call, they were skeptical about Rove's account of his July conversation with Novak. Both Rove and Novak have since said that Rove was one of "two senior administration officials" cited as sources in Novak's column.
According to the accounts of their conversation that both Rove and Novak later gave to investigators, the subject of Wilson's trip to Niger and any role played by Plame came up at the very end of a conversation on an entirely different matter.
Rove told the FBI that when Novak mentioned Plame's CIA connection and that she might have played a role in selecting her husband to go to Niger, he (Rove) simply said that he had heard much the same information. According to sources, Novak later told investigators a virtually identical story.
Ashcroft was advised during the fall 2003 briefings that investigators had strong doubts about Novak's and Rove's accounts of their July 9 conversation. The investigators were skeptical that Novak would have relied merely on an offhand comment from Rove as the basis for writing his column about Plame.
Questioned further, Rove told investigators that he originally heard the information about Plame from a person whose name he could not remember. That person, he said, might have been a journalist, although he was not certain. Rove has also said that he could not recall whether the conversation about Plame took place in person or over the telephone.
Rove's version was strikingly similar to the one from Libby, who had also been a source for reporters about Plame. Libby's version to the FBI was that in telling reporters that Plame worked for the CIA and may have played a role in sending Wilson to Niger, he was merely passing on unsubstantiated rumors that he had heard from other reporters. But the indictment of Libby alleges that he lied about this, and instead was told about Plame by Cheney, an undersecretary of State, and at least two other government officials.
As National Journal reported recently, investigators further believed -- based on the timing of phone calls between Rove and Novak, and on other evidence -- that the Bush adviser and the columnist may have devised a cover story to conceal Rove's role in leaking information about Plame to Novak. Investigators were so concerned about this possibility that Ashcroft received a briefing specifically on that one topic, according to people familiar with those briefings.
Corallo, now a spokesman for Rove, said in a statement: "Karl Rove has never urged anyone directly or indirectly to withhold information from the special counsel or testify falsely." James Hamilton, an attorney for Novak, said he could not comment on the ongoing CIA leak probe. And a spokesperson for Fitzgerald said his office would not comment.
As the leak probe progressed through the fall of 2003, Rove's past work as a political adviser to Ashcroft in three of his political campaigns was not the only concern for career Justice Department officials, sources said. Also not lost to some career prosecutors was the fact that a number of Ashcroft's top aides at Justice had come from the Republican National Committee.
During the initial stages of the Plame investigation, the RNC was at the forefront of the Bush administration's effort to stymie demands for the appointment of a special prosecutor and to continue the campaign to discredit Wilson. To some career investigators, the RNC appeared to be acting as a proxy for the White House in attempting to thwart the naming of a special prosecutor.
David Israelite, who was a deputy chief of staff to Ashcroft, had been the RNC's political director. Barbara Comstock, who was Ashcroft's director of public affairs, had been in charge of the RNC's opposition research department. Corallo, who succeeded Comstock at Justice under Ashcroft, had also worked for the RNC. Currently, Comstock is serving as a spokeswoman for Libby and his legal team as he prepares for trial early next year.
In the fall of 2003, senior Justice officials concerned about the investigation faced unique hurdles in seeking Ashcroft's recusal, current and former federal law enforcement officials said in interviews.
Wray, head of the Criminal Division, was supervising the investigation. Ordinarily, if he had sought Ashcroft's recusal, ultimate authority over the investigation would have fallen to the deputy attorney general. But that position was then vacant.
On October 3, President Bush had nominated James B. Comey, the U.S. attorney for the Southern District of New York, to be deputy attorney general. The leak probe was just getting under way, and Comey was awaiting Senate confirmation.
Meanwhile, the acting deputy attorney general was Robert D. McCallum, a Yale classmate of Bush's and a lifelong friend of the president and first lady Laura Bush. Bush and McCallum were inducted together into the secret Skull and Bones Society at Yale.
If Ashcroft were to recuse himself from the Plame investigation, several current and former officials said in interviews, it was a virtual certainty that McCallum would have had to recuse himself as well, putting Wray in charge of the probe.
By seeking Ashcroft's recusal, Wray would in effect have been placing himself in charge of one of the nation's most politically sensitive investigations, without anyone to oversee or supervise him.
"He was really in a difficult position," said a former Justice Department official. "If Wray had walked into the AG's office and asked that Ashcroft recuse, Wray would have in effect been making himself the de facto attorney general" in the matter. The official went on to say: "But Ashcroft should have known on his own what to do. He didn't need to be asked. He didn't need to be pushed. He should have just done it."
On December 9, 2003, the Senate unanimously confirmed Comey as deputy attorney general. It would not be long before Comey was privately arguing that Ashcroft should step aside and name a special prosecutor.
In announcing Ashcroft's recusal and Fitzgerald's appointment on December 30, Comey said that Ashcroft had made the decision: "The attorney general, in an abundance of caution, believed that his recusal was appropriate based on the totality of circumstances and the facts and evidence developed at this stage of the investigation," Comey said. "I agree with that judgment."
Asked what might have caused the Fitzgerald appointment, Comey said: "If you were to speculate in print or in the media about particular people, I think that would be unfair to them." Then he added, almost as an afterthought, "We don't want people that we might be interested in to know we're interested in them."
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