When is a special counsel not a special counsel?

When the Ashcroft Justice Department appoints one to investigate the White House.

On December 30 James Comey, the newly ensconced deputy attorney general, held a press conference to announce that Attorney General John Ashcroft had recused himself from the department's investigation of the Bush Administration leak that appeared in a Robert Novak column this past July identifying the wife of former ambassador Joseph Wilson, a critic of Bush's actions in Iraq, as a covert CIA officer. Comey also disclosed that he, filling in for Ashcroft, had selected Patrick Fitzgerald, the US Attorney in Chicago, as a "special counsel" to lead the probe.

It seemed as if the Justice Department was finally--after months of delay--bowing to requests from Democrats calling for an independent inquiry aimed at discovering who in the Administration blew Valerie Wilson's cover, possibly compromising national security. Not quite. In naming Fitzgerald a "special counsel," Comey violated (or disregarded) the department's own regulations. Those regulations state, "The Special Counsel shall be selected from outside the United States Government." Fitzgerald was a current Justice Department employee and thus ineligible to be a "special counsel." Comey could have chosen Fitzgerald to run the investigation without bestowing upon him the "special counsel" title. But the point was to create the impression that the Administration had taken action to guarantee that this sensitive investigation would be free of political manipulation.

Calling Fitzgerald a "special counsel" is false advertising. Moreover, a presidential appointee (Fitzgerald) remains in charge, and another presidential appointee (Comey) is overseeing his work. Fitzgerald does have a reputation for being relentless and independent. Still, he does not bring to the post the standing that would be afforded by a high-profile and accomplished attorney with no current ties to the Justice Department. "Jim Comey and Pat Fitzgerald are close friends," says a former US Attorney. "I highly respect them both. But I can't imagine Pat doing something Jim wouldn't want. This is different from having the investigation led by somebody not beholden to the department."

Structural changes aside, it's hard to get a fix on whether the gumshoes are making headway. This criminal investigation is being conducted, as is routine, confidentially. There have been few leaks about the investigators' progress--or lack thereof. The Washington Post reported that probers have conducted more than thirty interviews with Bush officials and were planning to ask White House aides to sign waivers that would release journalists--such as Robert Novak--from pledges of confidentiality. (Novak and other reporters would probably still be unwilling to ID the culprits.) And the White House has wisely done little to keep the story alive. There are no public indications Bush aides have rushed to hire attorneys.

Leak investigations are notoriously difficult to prosecute. To make a case, Fitzgerald's crew will have to prove that a specific official had a specific conversation with Novak and intentionally divulged Valerie Wilson's undercover CIA affiliation. But more is involved than the original leak. There's already public evidence that right after the leak occurred, the White House attempted to exploit it by encouraging other reporters to play up the Valerie Wilson connection. This might not have been illegal, but it would have been a thuggish act. Criminal investigators, though, might legitimately be able to avoid pursuing this part of the story.

This is where the Democrats come in--or not. They should be demanding a Congressional inquiry into the leak that would also focus on White House actions after the leak. Not that the Republicans in charge of Congress will react kindly to such a request. But Senator Jay Rockefeller, the ranking Democrat on the intelligence committee, has so far seemed uninterested in this line of inquiry. The Democrats also ought to be pushing Justice to release a report detailing the investigation should no charges be filed. At the end of the probe, Fitzgerald--if he is acting as a special counsel--must send the Attorney General a confidential report explaining his prosecution or his reasons for not filing charges. The department is not obligated to release this report. But special counsels have put out final reports in the past. In 2000 special counsel John Danforth, a former Republican senator appointed to examine the 1993 Waco disaster, issued a report criticizing FBI agents and Justice Department lawyers. "He had plenty to say about matters that did not rise to the level of prosecution," says a former senior Justice Department official. "And he made damn sure it got out publicly. As an outsider and heavyweight person, Danforth had enough leverage to say to the Attorney General, make as much of this public as possible or you're going to have a worse problem when I say I am being gagged. Fitzgerald cannot play that card."

The latest developments signal that Justice is disinclined to do more than the minimum unless it is pressed from the outside. Both the leaker(s) and the investigators must be squeezed.

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