Cheney May Be Entangled in CIA Leak Investigation

From Bloomberg:


Cheney May Be Entangled in CIA Leak Investigation (Correct)
(Corrects third paragraph to delete reference to former White House aide Jim Wilkinson; corrects 18th paragraph to say Fitzgerald reports to Justice Department.)
By Richard Keil

Oct. 17 (Bloomberg) -- A special counsel is focusing on whether Vice President Dick Cheney played a role in leaking a covert CIA agent's name, according to people familiar with the probe that already threatens top White House aides Karl Rove and Lewis Libby.
The special counsel, Patrick Fitzgerald, has questioned current and former officials of President George W. Bush's administration about whether Cheney was involved in an effort to discredit the agent's husband, Iraq war critic and former U.S. diplomat Joseph Wilson, according to the people.
Fitzgerald has questioned Cheney's communications adviser Catherine Martin and former spokeswoman Jennifer Millerwise about the vice president's knowledge of the anti-Wilson campaign and his dealings on it with Libby, his chief of staff, the people said. The information came from multiple sources, who requested anonymity because of the secrecy and political sensitivity of the investigation.
New York Times reporter Judith Miller, who has now testified twice before a federal grand jury probing the case after spending 85 days in jail for refusing to cooperate with Fitzgerald, wrote in yesterday's New York Times that Fitzgerald asked her whether the vice president ``had known what his chief aide,'' Libby, ``was doing and saying'' regarding Wilson, a critic of the war in Iraq.
Potential `Big Case'
Fitzgerald has told lawyers involved in the case that he hopes to conclude soon -- the grand jury's term expires Oct. 28, although it could be extended -- and there is a growing sense among knowledgeable observers that the outcome will involve serious criminal charges. ``Fitzgerald is putting together a big case,'' Washington attorney Robert Bennett, who represents Miller, said on the ABC-TV program ``This Week'' yesterday.
The charges could range from a broad conspiracy case to more narrowly drawn indictments for obstruction of justice or perjury, according to lawyers involved in the case. Charges are considered less likely on the law that initially triggered Fitzgerald's probe, which makes it illegal to deliberately unmask an undercover intelligence agent, because of the difficulty in meeting that statute's exacting standards for prosecution.
Lea Anne McBride, a Cheney spokesman, declined to comment yesterday on whether the vice president, 64, has been contacted by Fitzgerald about his status in the case, except to say: ``This is an ongoing investigation, and we are fully cooperating.'' Randall Samborn, a Fitzgerald spokesman, declined to comment. Calls to Robert Luskin, Rove's attorney, and Joseph Tate, Libby's lawyer, weren't returned.
Options
There's no indication Fitzgerald is considering criminal charges against the vice president, who gave unsworn testimony to investigators last year. One option for Fitzgerald is to outline his findings about Cheney's role if he files a final report on the investigation.
Fitzgerald, 45, has also questioned administration officials about any knowledge Bush may have had of the campaign against Wilson. Yet most administration observers have noted that on Iraq, as with most matters, it's Cheney who has played the more hands-on role.
``Anything dealing with intelligence, no matter how big or how small, Cheney is involved in it,'' Senate Democratic Leader Harry Reid of Nevada said in an interview. ``This is his portfolio, and he guards it very well.''
Pursuit of Evidence
One lawyer intimately involved in the case, who like the others demanded anonymity, said one reason Fitzgerald was willing to send Miller to jail to compel testimony was because he was pursuing evidence the vice president may have been aware of the specifics of the anti-Wilson strategy.
And both U.S. District Court Judge Thomas Hogan and an appellate-court panel -- including David Tatel, a First Amendment advocate -- said they ruled in Fitzgerald's favor because of the gravity of the case.
Katy Harriger, a political scientist at Wake Forest University in Winston-Salem, North Carolina, who has written extensively about special-counsel investigations, said the pace and trajectory of Fitzgerald's probe suggests it will end with the indictment of Rove, Libby or both.
Harriger said she anticipates indictments in part because of the special prosecutor's willingness to jail Miller. ``That's not something you do unless you really have something more going on that isn't obvious to the public,'' she said.
Avenues of Investigation
Larry Barcella, a former assistant U.S. attorney for the District of Columbia, said the recent activity in the case suggests criminal charges are likely, although not in connection with the 1982 law making it illegal to disclose a covert agent's identity.
A more likely focus is possible ``false statements, conspiracy or obstruction of justice,'' said Barcella, now a defense lawyer for the Washington-based law firm of Paul, Hastings, Janofsky & Walker. ``It's obviously not good that Rove and Libby have spent so much time before the grand jury.''
To make a case against Cheney as part of a conspiracy indictment, Fitzgerald would have to show the vice president was an active participant in a decision to smear Wilson, Barcella said. ``It's a case most easily made if you can prove a person knowingly entered into an agreement to do something illegal,'' he said. ``Beyond that, it can be tricky.''
Fitzgerald's status differs in one potentially important respect from the independent counsels who investigated alleged wrongdoing during earlier administrations. They reported to a panel of appellate judges, while Fitzgerald reports to the Justice Department.
Given the prospect of both protracted criminal cases and then civil lawsuits, it now seems possible the issue will bedevil the final years of Bush's presidency, much as the Iran-contra affair burdened President Ronald Reagan's second term and the Monica Lewinsky scandal plagued President Bill Clinton's.
No Leaks
While there have been virtually no leaks out of Fitzgerald's office, and even the subjects of his investigation are unsure about his intentions, White House officials and Bush supporters are fearful that recent developments spell legal jeopardy for Rove, the central strategist behind Bush's political campaigns and much of his presidency, and Libby, a key architect of the Iraq war strategy.
When the investigation began, White House officials asserted that neither Rove nor Libby played any role in the outing of Plame, and both aides told Fitzgerald that they learned of her identity from journalists.
Reporter's Account
In her Times account, Miller said she told Fitzgerald and the grand jury that Libby, 55, raised the subject of Wilson's wife during a meeting with Miller on June 23, 2003. That was before Wilson, 55, went public in a Times op-ed piece with his accusation that Bush and his aides had ``twisted'' intelligence findings to justify invading Iraq, although administration officials knew he was privately critical.
While Miller didn't say Libby had identified Plame as a covert agent, her account calls into question Libby's assertion that he first learned of Plame's identity from reporters.
Miller, 57, said she went to jail rather than testify because, unlike other reporters, she didn't feel Libby had given her specific and voluntary permission to speak about their confidential conversations. She relented when Libby contacted her by telephone and letter last month, saying he had always expected her to testify.
Those communications with Miller may pose legal problems for Libby. His letter to her stated that ``the public report of every other reporter's testimony makes clear that they did not discuss Ms. Plame's name or identity with me.''
Surprise
Miller wrote in her Times article that Fitzgerald asked her to read that portion of the letter aloud to the grand jurors and asked for her reaction to Libby's words. She said that part of the letter had ``surprised me because it might be perceived as an effort by Mr. Libby to suggest that I, too, would say we had not discussed Ms. Plame's identity. Yet my notes suggested that we had discussed her job.''
Bennett, Miller's attorney, yesterday called that part of Libby's letter ``a very stupid thing to do.'' Other lawyers suggested it could become part of any obstruction-of-justice charge Fitzgerald might bring.
Rove's testimony also has been contradicted by others, such as Time magazine reporter Matt Cooper. He said his July 2003 conversation with the White House aide focused more on Wilson and his wife than Rove had testified, while adding Rove had not identified her by name. There is also at least one discrepancy between Rove's version and that of columnist Robert Novak, who first identified Plame as a Central Intelligence Agency operative in July 2003, according to persons familiar with their accounts.
Return for Testimony
Rove, 54, returned to the grand jury for a fourth time on Oct. 14 and testified for more than four hours. His lawyer, Luskin, who has spoken frequently with reporters, has gone from public optimism that his client faces little legal danger to cautiously noting only that Fitzgerald hasn't told them Rove is a ``target.''
Bush refused to comment when asked by a reporter today whether he would expect a member of his administration to resign or take leave if indicted.
``There's a serious investigation,'' Bush said. ``I'm not going to pre-judge the outcome.''
Wilson was dispatched by the CIA in February 2002 to investigate reports, since discredited, that Saddam Hussein's regime was trying to buy uranium in Niger as part of a nuclear- weapons program. After Bush cited similar reports in his Jan. 28, 2003, State of the Union speech and the U.S. invaded Iraq in March of that year, Wilson began telling some journalists anonymously that the claim was questionable.
Reacting to Wilson
That prompted behind-the-scenes administration attempts to discredit Wilson. In his June 2003 meeting with Miller, Libby told her, in the context of a conversation critical of the CIA, that Wilson's wife worked for the spy agency, according to an account published in the Times yesterday.
Wilson went public with his criticism on July 6, 2003. In his Times piece, he concluded: ``Some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat.''
Over the next week, Libby and Rove talked to reporters, on the condition they not be identified, about Wilson's article and the fact that his CIA-employed wife may have had a role in giving him the Niger assignment.
Publication
Plame's identity was first published by Novak on July 14. He cited ``two senior administration officials'' as the sources of the information that Plame, 42, suggested Wilson for the Niger trip. Novak hasn't commented publicly on those sources.
Miller never wrote a story about Wilson or his wife -- although in one of her notebooks, dated July 8, 2003, a notation appears for ``Valerie Flame.''
One of the subplots is the role played by the New York Times. In addition to Miller's personal account, the Times yesterday published a separate 5,800-word piece that criticized both Miller and the way the newspaper handled the story.
The article reported the paper's publisher, Arthur Sulzberger Jr., and its executive editor, Bill Keller, unequivocally supported their reporter in her legal battle although ``they knew few details about Ms. Miller's conversations with her confidential source,'' and ``did not review'' her notes.
Miller, who wrote many influential pre-war war stories about Hussein's purported weapons of mass destruction that the Times later acknowledged were flawed, told the grand jury she recommended in 2003 that the newspaper pursue the Plame story. Jill Abramson, the newspaper's managing editor, said Miller never made any such recommendation.
In an interview yesterday, Wilson said that once the criminal questions are settled, he and his wife may file a civil lawsuit against Bush, Cheney and others seeking damages for the alleged harm done to Plame's career.
If they do so, the current state of the law makes it likely that the suit will be allowed to proceed -- and Bush and Cheney will face questioning under oath -- while they are in office. The reason for that is a unanimous 1997 U.S. Supreme Court decision ruling that Paula Jones' sexual harassment suit against then- President Bill Clinton could go forward immediately, a decision that was hailed by conservatives at the time.

To contact the reporter on this story:
Richard Keil in Washington at dkeil@bloomberg.net