The Valerie Plame Affair:
    Ashcroft recuses himself

The Attorney General has recused himself from managing the investigation of the Valerie Plame scandal, according to a story by David Stout that will appear in tomorrow’s New York Times. The U.S. Attorney for Northern Illinois, a career prosecutor named Patrick Fitzgerald, will be taking over.

Tom Maguire, who is taking a vacation from blogging this week but who alterted me to the story by email, offers two straightforward speculations:

1. The investigation is making radid progress and pointing directly at Karl Rove. That presented Ashcroft, a former political client of Rove’s, with an intolerable personal conflict of interest, so he bowed out.

2. The investigation is making rapid progress and pointing directly at other people in the White House, presenting Ashcroft, as a member of the President’s official family, with an intolerable institutional conflict of interest.

Either seems plausible. Tom also offers a third, less straightforward interpretation: that the investigation is going nowhere and Ashcroft wants it to fail on someone else’s watch. But that seems to be contradicted by the remarks of the Deputy Attorney General as reported in the story. The reference in the press conference (video clip here) to Ashcroft’s having made the decision “at the appropriate point in this investigation” clearly implies that something has happened recently to force Ashcroft’s hand.

It’s worth noting that the shift transfers responsibility for the investigation from one political appointee to another. While Fitzgerald has made a career as a non-political prosecutor, as U.S. Attorney he is a political appointee, nominally of the President, actually of Peter Fitzgerald (no relation) the Republican Senator from Illinois.

The U.S. Attorney’s job has often been a political steppingstone, Jim Thompson was U.S. Attorney for Northern Illinios before becoming Governor. No matter how non-political Fitzgerald has been to date, it’s not outrageous to think that he might find it a poor career move to be too insistent in asking “What did the President know, and when did he know it?”

Update and correction: The two paragraphs above appear to be wrong. I’m told, though I wasn’t given a source on it, that Patrick Fitzgerald is in fact a Democrat, brought in by Peter Fitzgerald to do a job on the former Republican Governor of Illinois, George Ryan. This he promptly did, in spades. So Patrick Fitzgerald may have precisely the right set of characteristics for a prosecutor, if what you want is to have this case prosecuted to the hilt. This NY Times profile certainly suggests as much; it also says that when Fitzgerald registered to vote in New York he did not specify a party affiliation. Nothing here supports the suggestion made above that he might have political ambitions as a Republican in Illinois.

In a slightly chilling note, Stout quotes the Deputy AG as saying (in Stout’s words) that Fitzgerald “could choose to retain some of the department investigators who have been participating in” the investigation so far. If that means replacing the current team of investigators (and presumably prosecutors as well) with a group chosen by Fitzpatrick, the balance between civil servants and political appointees will in fact have shifted way from civil servants due to the move. Reassuringly, the MSNBC story suggests strongly that the existing team will stay in place; that is given as the reason for not appointing a special counsel from outside the Justice Department. (Weirdly, MSNBC is still refusing to use the name “Valerie Plame.”)_

On the other hand, it would be an even worse career move for Fitzgerald, having been handed the case at this point, to end it without putting a major trophy on the wall.

Clearly, the announcement is a good sign from the viewpoint of those of us who have been hoping that Valerie Plame’s unmaskers would be brought to justice, and a very bad sign from the viewpoint of the people in the White House (and their friends on Capitol Hill and in the press) who have been more or less openly trying to (as one of them told the Financial Times earlier this month) “let the earth movers roll in over this.”

Whether it’s good news, as opposed to a good sign, is a different question. It’s pretty obviously something less than an investigation headed by a truly independent prosecutor. It’s probably better than having the case managed by career people at Main Justice with the Attorney General kibitzing, probably not as good as having it managed by career people at Main Justice with the Deputy AG or the Assistant AG for the Criminal Division kibitzing.

But the hell with all that niggling analysis. Go out and celebrate. The odds on a Democrat’s replacing George W. Bush just shortened considerably.

Update Glenn Reynolds comments. He cites Eric Rasmussen, who in turn cites his own prior legal analysis suggesting that no crime was committed except perhaps by Joseph Wilson.

Unfortunately, Prof. Rasmussen doesn’t seem to have bothered to read the relevant statue more than casually, and Prof. Reynolds doesn’t seem to have bothered either to do that himself or to read anything by those of us who have looked at that statute, and others, carefully. (Unlike Reynolds and Rasmussen, I’m not a law professor, but I do know how to parse a criminal statute. And unlike Rasmussen, I’ve followed the case closely enough to know that the key assertions of fact have been made not by “Democrats” but by “two top White House officials,” who are undoubtedly Republicans. All the Democrats have been doing is demanding an investigation; they’re not the source of the allegations.)

First, the Rasmussen analysis starts from the premise that no one not personally authorized to know the identity of a covert agent can be guilty of a violation of the Intelligence Identities Protection Act. Wrong. Under 50 U.S.C. 421 (B), anyone who has authorized access to any classified information — i.e., anyone with a security clearance — who learns of the identify of an covert agent in the course of official business and then releases it is liable, though the maximum penalty is five years rather than ten:

Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both.

Moreover, under 422 B (2) (B), anyone authorized to receive any classified information can be held liable under the laws covering conspiracy, misprision, and aiding-and-abetting.

So it’s not very easy to tell a story about how someone in the White House could have revealed the information that Valerie Plame was covert without having violated the IIRC. It would have to turn out (a) that she wasn’t covered under the law because she hadn’t served abroad within the previous five years or (b) that the discloser didn’t know that her identity was covert.

But even if the unmaskers are able to get out from under the IIRC, there’s still 18 U.S.C. 793, the Espionage Act. (Analysis here; the Morison case disposes of the idea that the Espionage Act is somehow a dead letter.)

Why Reynolds prefers Rasmussen’s analysis to mine is a puzzle, especially since I have George W. Bush on my side. Bush announced back in October that revealing Plame’s identity was “very serious” and “criminal.”

Reynolds and Rasmussen also seem to think that if someone goes on a mission for the CIA and brings back evidence that contradicts what they and the President want to believe, that must somehow constitute a crime. Since no one who knows anything about this matter believes any such thing, or that anyone other than the person or persons responsible for disclosing the identity of a covert CIA officer is facing charges here, I’ll leave that idea to rest where it belongs.

Reynolds then makes the rather odd suggestion that the development leading to the recusal by Ashcroft — note that Comey attributed that recusal to new developments in the investigation — might have been the discovery that there was nothing worth prosecuting (or perhaps that Plame or Wilson was to be prosecuted). Since that finding, if announced by the Justice Department, would raise a political firestorm, Reynolds suggets, it was decided to refer the matter to a special prosecutor who would be harder to criticize.

There are two things wrong with this. First, as noted above, it would a dirty trick for Mr. Comey to play on his old friend Mr. Fitzpatrick. Second, if it was obvious from the beginning that the AG would have to recuse if no charges were to be brought against Karl Rove and friends, it was obvious from the beginning that he would have to recuse if charges were to be brought against Karl Rove and friends. In that case, the time to recuse would have been earlier rather than later.

While it makes sense that the AG would have waited to recuse himself until it was established that the targets of the investigation were people who created a personal conflict of interest for him, it makes no sense the other way around.

[Note that my earlier idea about an institutional conflict of interest must be wrong, since the Deputy AG and the Assistant AG for the Criminal Divison have the same institutional roles, and are remaining in the chain of command; the Ashcroft recusal must be based on a situation personal to himself and not inherent in his being a Presidential appointee.]

So the obvious interpretation remains the most probable: That Karl Rove is now a target, and that his having previously served as a campaign consultant to Ashcroft is the reason for Ashcroft’s recusing himself from supervision of the case. Placing Fitzpatrick in charge of the investigation makes sense only if there’s a significant investigation to run; otherwise, Comey could simply sign off on a declination memo.

Reynolds updates with a slur on my integrity, the sort of off-the-cuff insult at which he so excels:

“…the credibility of Plame-scandal-boosters like Kleiman would be stronger if it weren’t for lines like this: ‘Go out and celebrate. The odds on a Democrat’s replacing George W. Bush just shortened considerably.’ “

How I would enhance my credibility by pretending to ignore the political implications of this case is beyond me. I dislike the current Administration, and would be happy to see its malfeasances revealed in public. Nonetheless, my very first post on this matter, back last July, was an assertion that the charges first made in David Corn’s article were unlikely to be true, because I thought it unlikely that anyone in the Bush Administration would have acted so badly.

But since I’m not a witness in this case, it’s not clear why my “credibility” is really an issue. (Nor, for that matter, is it clear why Joseph Wilson’s behavior tells us anything of interest; nothing important about the case now rests on his account of it. I wrote him off as a source when it emerged that his reference to Karl Rove as a likely culprit rested on no very adequate basis, and haven’t based anything since on Wilson’s words.)

I have presented facts gleaned from public sources and offered inferences from those facts and analyses of the relevant laws. When errors have been brought to my attention (or when, as here, I have become aware myself of flaws in my own reasoning) I have made frank and explicit corrections and retractions.

If Reynolds wants to criticize any of that work, he’s welcome to do so, though doing so competently would require more time and attention than he seems willing to devote to the matter, discreditable as it is to an Administration he seems interested in defending. It will be time enough to analyze my motives after he has detected errors in my analysis.

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Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com