Pursuing the Leak

MARGARET WARNER:

On Monday, the Justice Department began a criminal investigation into the leak of a CIA operative's name. The agent is married to former ambassador Joseph Wilson. In July, Wilson challenged the president's claims that Iraq tried to buy uranium in Niger, saying he'd debunked the allegation a year earlier after his own CIA-sponsored trip there.

Days later, Wilson's wife and her CIA role were disclosed in a column by Robert Novak. He cited "two senior administration officials." And a Washington Post story last weekend said a White House official had called another half-dozen reporters with the same information.

The White House has pledged full cooperation with the probe and instructed its staffers to preserve all pertinent e-mails and phone logs. But Democrats are calling for the appointment of a special counsel, saying the attorney general cannot conduct an impartial inquiry.

Here to explain how an investigation like this unfolds are Joseph DiGenova. He was a U.S. attorney in the 1980s. In the early '90s, he served as independent counsel investigating former White House officials in the Clinton passport matter. And Bruce Yannett, a former assistant U.S. attorney. He served as associate independent counsel in the Iran- contra probe. Welcome to you both.

So, Joe DiGenova, take us through the steps of an investigation like this. If you were the top Justice Department official running this right now, what would you be doing?

JOSEPH DiGENOVA:

Well, first of all, you would have established with the CIA already that Mrs. Wilson — we'll just call her Mrs. Wilson — was in fact a covert officer, that the agency was trying to protect her identity and her role and that she had been overseas at least once in the last five years in a covert capacity. You would freeze all electronic e-mail. You would freeze all telephone records. You would freeze computers and hard drives to preserve any written information.

Once all of that was done you would then begin interviews not only at the CIA but then you would move from the outer side into the center and try to find out who had spoken with whom. These investigations are difficult. They are almost never successful. And the reason is the person who knows most, the journalist, is someone that you can basically never talk to.

MARGARET WARNER:

Before we get to the journalist's role, Bruce Yannett, what would you add to that in terms of the process right now? Today it was disclosed that now it's not going to be just the CIA and the White House that's looked at, but State and the Department of Defense as well.

BRUCE YANNETT:

Well, one of the things you would want to do for sure is to try to figure out which people in the government knew her identity as a covert agent. So I assume that the expansion to the State Department and the Defense Department probably relates to that. I agree with Joe, I'm sure they've started with the CIA but one of the questions that they've asked the CIA is who else in the government knew her identity which undoubtedly leads to State and Defense. So you expand there to ensure that you cast a wide net and interview and capture records as to everyone in the government who knew about her.

MARGARET WARNER:

And from what you know, does a records order like this that's gone out to everyone to preserve all their e-mails and phone logs, does it also cover, for example, their cell phones which many people use now all the time or their home phones?

BRUCE YANNETT:

Well, typically those orders are really irrelevant when it comes to phone records because the government will get those directly from the phone company or directly from the White House switchboard or the Defense Department switchboard as the case may be. It's things like personal files, personal notes, things on people's computers that the order is directed at and those you do want to preserve but phone records really they'll get directly from the phone company.

MARGARET WARNER:

Joe DiGenova, you mentioned the reporter's role. At what point does an investigator try to go to the journalists who after all do know who called them?

JOSEPH DiGENOVA:

Well, the department has regulations on when you can subpoena a journalist in an investigation. They require that a very long series of steps that exhaust all other investigative techniques before you can go to specifically try to subpoena a reporter, and that must be approved personally by the attorney general or a specific designee if he is unavailable. You're not going to go to the journalist early because you can't complete all those steps. And you're unlikely ever to get a positive response from any journalist who wants to continue to be in the journalism business but sometimes it's worth a shot because you might get a response.

MARGARET WARNER:

Bruce Yannett, does that stricture or limitation also apply, for instance, to subpoenaing a journalist's phone records or trying to get their e-mail logs?

BRUCE YANNETT:

Yes, in fact, the regulations that Joe was just mentioning specifically say that the attorney general's approval is required before you go after a reporter's telephone logs. I just want to point out one thing if I might, which is that just a few years ago in the independent counsel investigation of Agricultural Secretary Mike Espy, the independent counsel actually did subpoena the records of "60 Minutes." "60 Minutes" went to court to try to stop it and the court ruled in favor of the independent counsel ordering "60 Minutes" to produce records so it does happen sometimes.

MARGARET WARNER:

Did "60 Minutes" produce the records or did the people who had the records defy the order and go to prison?

BRUCE YANNETT:

It's my understanding the records were produced.

MARGARET WARNER:

Anything you want to add to that about the difficulty in getting … well, let me ask you specifically in this case, we're not just talking about the Novak column, but there are all these other reporters though nobody knows who they are, who anonymously are said to have been called. Joe Wilson has said that some of those reporters in turn called him to try to check out the story and he's perfectly willing to tell the FBI if they ask him which reporters called you? To what degree does that help?

JOSEPH DiGENOVA:

Well it just provides another group of people for investigators to talk to. All Mr. Wilson knows that the reporters told him that someone told them about this story. No doubt they will invoke the same confidential source privilege that Mr. Novak would if he were approached. So I'm not sure that that provides anything further. Other than if you attempt to get their phone records, you might learn the people with whom they are speaking.

MARGARET WARNER:

All right. Bruce Yannett, let's go now to the law. Joe DiGenova already referred to that somewhat in terms of where is the bar? What makes this a crime? Under what circumstances is disclosing a CIA operative — we'll use that word loosely — a crime?

BRUCE YANNETT:

About 20 years ago, Congress passed a specific statute designed to protect the identities of covert agents. I think it was a result of Philip Agee and his revealing identities of agents some of whom were actually killed. There's a specific statute that says anyone who has knowledge as to the identity of a covert agent who knowingly reveals that information knowing the person to in fact be a covert agent and knowing that the government is taking steps to protect that person's identity has committed a felony punishable by ten years in prison.

That's a very high standard, I think, for the government to meet. This will be a very difficult case I think really for two reasons. One is the one we just spoke about which is that leak investigations are typically very difficult to satisfactorily complete and the second is that the statutory standard here is quite high so to get a conviction here you'd have to show not only that the person was an agent but that the leaker knew she was an agent and knew that the government was trying to protect her identity.

MARGARET WARNER:

So, for instance, Joe DiGenova, if some government official said to some … said to a reporter, well, you know, his wife works at the CIA, thinking she was say, an analyst, not in the clandestine division and it was probably her idea to send him to Africa, that would not be a crime.

JOSEPH DiGENOVA:

It would not be a crime if the person didn't know that she was a covered … a person operating under cover and that the agency was trying to protect her. As Bruce has said, the standard here for the government is very high. I don't know how they're going to prove whoever leaked this knew that she was a covered person under the act and that the agency was trying to protect her unless those people had specific discussions with people at the CIA or the State Department who knew about her cover and therefore were seized of that very specific knowledge — but the only way to prove that would be to find the people with whom the leaker had the conversations or to get an admission from the leaker. I just don't see that happening. It's a very, very difficult case to make.

MARGARET WARNER:

All right, Bruce Yannett, the big debate raging in Washington now, at least on the part of the Democrats, is their call for a special counsel. They are saying there is no way John Ashcroft or his department can do an impartial inquiry here. What is your view on that?

BRUCE YANNETT:

Well, I actually think a special counsel here would be appropriate. I think for again for two reasons: One, is that the American people want to have confidence that the investigation will be pursued as far as it needs to go. Suppose, for example — I'm not saying this is the case — but suppose, for example, evidence led to the office of the vice president or to some senior White House official, the American people will want the confidence that the investigation will be pursued to its logical conclusion.

The flip side of that though is that from the administration's standpoint, suppose the investigation doesn't reach any conclusions, they can't identity the leaker or can't conclude that the person deliberately committed a crime, you want to have the American people have confidence in that conclusion as well. So I think it benefits the administration to have an independent person appointed by the Justice Department to take a look at this, given the very close relationship between the attorney general and many officials in the administration including some people who … whose names have been in the press as possibly being involved in this.

MARGARET WARNER:

And, Joe DiGenova, pick up on that. And also explain now a special counsel is not an independent counsel of the Kenneth Starr variety. A special counsel is appointed by the attorney general but what is outside the department.

JOSEPH DiGENOVA:

That's right. Well, the independent counsel statute which Ken Starr was and I was and for whom Bruce worked were statutorily created. They were created by a … they were appointed by a three-judge panel. That statute was allowed by Congress with bipartisan support to go out of existence because nobody liked it. And two different presidents or more had suffered under it. However, the attorney general retains regulatory power under very old regulations to appoint special counsels when there is a political conflict of interest, a personal conflict of interest, or the appearance of … or a financial conflict of interest, to point someone so that the Department is cleansed of any appearance of impropriety. He can do that with the stroke of a pen.

MARGARET WARNER:

Do you agree with Bruce Yannett that in this case it would be a good idea?

JOSEPH DiGENOVA:

Well, I actually am of two minds. I spent a long time in the Justice Department and I was an independent counsel. I enjoyed both jobs. I loved the career people in the department. I know they're capable of investigating this case. I would love to see them break it and find the person and lock them up and put them away if a crime has been committed. But I also believe that at a certain point the attorney general may decide that it is in the interest of the department to appoint a special counsel, I would like it to be a two-step process.

MARGARET WARNER:

Bruce Yannett and Joe DiGenova, thank you both.