A Justice Department leak investigation isn't good enough--the Democrats want an independent counsel looking into the leaks, and fast.
8:00 AM, Oct 9, 2003 • By TERRY EASTLAND
JUSTICE DEPARTMENT LAWYER John Dion has worked on every major national security case of the past quarter-century, including the prosecutions of Aldrich Ames and Robert Hansen. Since 1997, he has run the counterespionage section within the Criminal Division. About once a week, the CIA advises his office of another case involving the unauthorized disclosure of classified information.
In July, the CIA asked Dion's office whether someone's leaking the name of a covert CIA agent to columnist Robert Novak might have violated a 1982 law forbidding the intentional disclosure of a clandestine agent's identity. Dion has since commenced an investigation. It is hard to imagine a lawyer more qualified than Dion to head up the investigation. But Democrats in Congress are impatient with the idea of a Justice Department investigation.
It doesn't matter that Dion is a career lawyer who has won the praise of both Republican (Edwin Meese) and Democratic (Janet Reno) attorneys general. No, Democrats want Attorney General John Ashcroft to hand the case to an outside lawyer--now. Some Democrats even want to pass a new independent counsel law--under which a court would appoint the outside lawyer.
Democrats press the old argument stemming from Watergate--that the Justice Department can't conduct a credible investigation. They see a conflict of interest: Dion ultimately reports to the attorney general, who reports to President Bush. Justice Department regulations address cases presenting conflicts of interest. They authorize the attorney general to name an outside counsel. But it hardly is obvious that the department now faces a serious conflict.
Novak cited "two administration officials" in his column. They may work in the White House, but they also may work in other places. There are tens of thousands of "senior administration officials." The only suggestion that White House aides leaked the covert agent's name comes from another "senior administration official," who told The Washington Post that "two top White House officials" leaked the agent's name to at least six (unnamed) journalists.
The department's critics would have the attorney general rely on the word of The Post's anonymous source and move to name an outside counsel. But the rational course is the one the department is taking under Dion's direction. Surely, the attorney general would need to know a great deal more before deciding whether to keep the case or name an outside counsel.
Fortunately, in the department's quest to find out more, it won't be handicapped by the old independent counsel law, which Congress wisely decided not to extend when it came up for renewal four years ago and would be foolish to try to revive today.
Designed to overcome conflicts of interest, the law sharply limited the attorney general's law enforcement role in investigating allegations of malfeasance against high-ranking administration figures. The law authorized the attorney general to open a "preliminary investigation" in those exceptional cases but denied the department use of its usual investigative tools. It couldn't (among other things) convene a grand jury, issue a subpoena or grant immunity. Nor could it determine criminal intent.
Precisely because there is no independent counsel law, the Justice Department is able to pursue the leak investigation just as it would any other case. Which means it can move quickly--conducting interviews, subpoenaing records and convening a grand jury. And at any stage of the inquiry, depending on what it is yielding, the attorney general can decide to ask an outside counsel to take the case or to resolve a specific issue. Solomon Weisenberg, a former federal prosecutor who handled public corruption cases, says a special counsel might be named to address the often difficult question of criminal intent.
What is most disturbing about the Democratic demand for an outside counsel is its presumption that the Justice Department is incapable of handling the case. Dion's record suggests otherwise.
Terry Eastland is publisher of The Weekly Standard. This column originally appeared in the Dallas Morning News.