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INDICTMENTS IN CIA LEAK CASE

Who Talked? It Wasn't the Special Prosecutor

October 30, 2005|Richard B. Schmitt | Times Staff Writer

WASHINGTON — With U.S. troops unable to find expected weapons of mass destruction in Iraq, a group of officials met aboard Air Force Two in mid-2003 to discuss how to respond to the growing prominence of one particular critic of President Bush's war policy. Vice President Dick Cheney was on the flight. So was his chief of staff, I. Lewis "Scooter" Libby.

It was a scene that suggested intrigue. And if it had occurred as part of a past Washington scandal, the investigator who revealed it probably would have included a wealth of details, naming everyone present and laying out what they said.

But when Special Prosecutor Patrick J. Fitzgerald announced Friday that he was wrapping up his two-year investigation of the CIA leak case, he offered the barest sketch of the meeting on Air Force Two -- and left many central questions in the case unanswered. Did Cheney help map out strategy with Libby during the flight? Did officials talk about Valerie Plame, the wife of the Bush critic, and that she worked for the CIA -- a detail that was soon leaked to the media?

Did Cheney attend the meeting, or did he sit elsewhere on the plane?

Answering none of these questions, Fitzgerald's 22-page indictment, with its bare-bones outlines of the case, provided a bracing lesson on what major political investigations have become now that they are no longer conducted by independent counsels, and how the culture of rooting out scandal in Washington has fundamentally changed.

Ever since Watergate, special federal investigations of political scandals have often ended with detailed accounts of the inner workings of government. The probes might take years; they might cost millions; but at the end, they often provided a rich, detailed story of episodes in question.

The reason was the independent counsel law, created by Congress in 1978 because it felt the executive branch could not be trusted to investigate itself in cases of alleged abuse and corruption. Independent counsels gave the nation book-length -- even multi-volume examinations of the Iran-Contra affair and of President Clinton's relations with a former intern. But Congress in 1999 chose not to renew the law authorizing them, out of concern that they had been used to pursue partisan witch hunts.

Fitzgerald, by contrast, is a special prosecutor, charged with bringing violations of the law to court, rather than information to the court of public opinion.

His spare account suggests that with the independent counsel statute gone, the public is apt to know far less about the actions of elected officials and government bureaucrats when they are engaged in conduct that may be questionable but that does not violate the law.

"My job is to investigate whether or not a crime was committed, can be proved and should be charged," Fitzgerald said Friday as he announced an indictment of Libby for allegedly lying to the FBI and a grand jury investigating the leak case. "I'm not going to comment on what to make beyond that. It's not my jurisdiction, not my job, not my judgment."

Because only Libby was charged, he said, he would not be answering questions about the actions of other officials. Some legal experts see the new practice as a good development, restoring proper restraint as investigators ferret out information about wrongdoing. Prosecutors should focus strictly on bringing and proving charges in court; watchdogs such as Congress and the media can use their own powers to sort out lapses in judgment by policymakers, this thinking goes.

"There is a trade-off," said John Q. Barrett, a professor at St. John's University law school in New York and a former associate independent counsel. "The public does not automatically get the fruits of the good information that a criminal investigation does gather."

At the same time, he said, it can be unfair to people who are investigated but never charged to have their names publicly exposed. And public disclosure of information could violate "institutional promises" built into the justice system. Grand juries can compel people to testify, for instance, but witnesses are assured that their testimony is strictly confidential.

Some people said that by releasing a tightly focused indictment of Libby, Fitzgerald showed that the nation is better off than when independent counsels such as Kenneth W. Starr investigated politicians.

Starr's original mandate was to investigate the failed Arkansas real estate deal known as Whitewater, but his investigation of President Clinton yielded a 445-page account that included substantial information about the president's sexual relations with White House intern Monica Lewinsky. Recounting episodes of oral sex, phone sex and, in one case, the use of a cigar as a sex prop, the report even said which parts of Lewinsky's body the president touched during their encounters.

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