Who Sits in on the Interviews?

My outrage [*] about the White House plan to have its own counsel “vet” the staff’s submissions of documents relating to the Valerie Plame affair does not seem to have been widely shared outside the circle of bloggers who have been on this case since July. (Kevin Drum sees the situation as I do. [*])

My original post said, in so many words, that the White House Counsel had committed no impropriety; that did not prevent my receiving outraged emails defending someone who had not been attacked.

That post failed to make clear that as far as I can see the President, too, was entirely within his legal rights in proceeding as he has done. They’re his employees, and he can give them, within reason, any orders he likes. Information that they produce on his demand can properly be reviewed by his lawyer to determine how much of that information should be turned over to third parties, even other parts of the Executive Branch.

But his exercise of that authority can legitimately be criticized by others, especially when his behavior seems to belie his words: in this case, his stated desire “to get to the bottom of this.” [His expressed skepticism that the result he claims to want will in fact be achieved [*] doesn’t help his credibility in that regard. In the mouth of such a famously optimistic fellow, a prediction is half a wish.]

If it is the President’s stance, as it was Mr. Clinton’s in the various matters in which his White House was investigated, that no wrongdoing has occurred, that the investigation is unnecessary and politically motivated, and that the investigators cannot be trusted to keep his secrets because they work for his foes, then it follows as a matter of course that the relationship between the White House and the investigators is arm’s-length at best, if not actively adversarial. In that case, what he has ordered in this case would be no more than routine.

But if it is his position that a serious crime has (probably) been committed, and that it is in his interest and the country’s to “get to the bottom of it,” then he ought to act accordingly. Moreover, he ought to act in a way that reduces, rather than increasing, suspicion about his own guilt: if not the guilt of having ordered the release of the information or known about in advance, at least the guilt of whose actions, or culpable failures to act, helped protect those who actually made the phone calls that “burned” Valerie Plame.

[For those, including both most reporters and most of the public, who were unaware of this issue until the public report of the CIA referral to Justice ten days ago, Bush’s inaction over the previous eleven weeks does not stand out as clearly as it does for those of us who have been following it from the beginning. In particular, it’s impotant to keep in mind the fact that the circle immediately around the President knew, even if the President himself did not know, that an undercover officer’s cover had been “burned,” probably by senior administration officials, no later than the third week of July, and that the White House took no action to launch its own investigation or to ask for an investigation by the Justice Department. A Los Angeles Times story [*] remarks on the difference in intensity between this investigation and those involving leaks from Capitol Hill.]

This investigation is being carried out by the Department of Justice, directed by an Attorney General who serves at the President’s pleasure and an FBI Director whom he appointed (and who, unlike Louis Freeh in relation to Bill Clinton, was not an ideological or partisan foe and has shown no hostlity toward the President). That makes the claim that the investigators in this case cannot be entrusted with the President’s secrets somewhat harder to swallow.

While the FBI and the Justice Department are part of the Executive Branch, the officials within them, and in particular the career officials, must exercise professional judgment in carrying out the investigaton now started, and must protest if the President makes it unreasonably difficult for them to carry out their task. The Presdident’s first move, I suggest, has been unhelpful when it might have been helpful.

The next big question will arise when it comes time (assuming that interview are not already taking place) to interview the senior officials, both within the White House and in the agencies, who might have themselves been the transmitters of information about Valerie Plame’s identity or might have knowledge of those who were.

The President might, for the same reasons he assigned for having his counsel review the document submissions, to have his counsel present at those interviews. That presence would act to inhibit witnesses concerned about the impact of what they might say on their career prospects, and there could be no guarantee that the information from those interview would not — lawfully — reach the ears of both the culprits and of other potential witnesses in a way that would reduce the probability of finding the guilty parties.

Were that to happen, the Justice Department/FBI team working on the case would have an obligation to protest, and I would hope that such a protest would resonate in the press, on Capitol Hill, and among the larger public.

The President has to decide whether he’s with the hare or the hounds, the cops or the bad guys. And the country should judge him accordingly.

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

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