At times diGenova has been remarkably strident,
sounding more like an angry defense attorney for George W. Bush’s White
House than someone who could have plausibly worn the title “independent”
when he investigated an alleged abuse of government power by George H.W.
Bush’s administration a dozen years ago. [More on that below.]
For instance, during a Nov. 16, 2005, appearance on
Fox News, diGenova lashed out at Fitzgerald following
by the Washington Post’s Bob Woodward that a Bush II administration
official had told him about the identity of CIA officer Plame in
mid-June 2003. That apparently was before former vice presidential chief
of staff Lewis Libby began peddling information about Plame’s identity
to other reporters.
Citing Fitzgerald’s statement at an Oct. 28, 2005,
press conference that Libby was then the first known official to begin
talking to reporters about Plame, DiGenova argued that Woodward’s
admission justified the dismissal of Libby’s five-count indictment on
charges of perjury, lying to FBI investigators and obstruction of
“By alleging that Mr.
Libby was in fact the initial source, [Fitzgerald] publicly bootstrapped
his case on that fact,” diGenova said. “That is now totally false and it
requires him now, under Justice Department guidelines, to seriously
consider dismissing the case because you cannot indict when there's a
reasonable doubt and I believe now that there is reasonable doubt about
Mr. Libby's state of mind.”
Though Fitzgerald had
only said that as of Oct. 28 Libby was the first “known” official to
tell reporters about Plame – and that fact seems to have little bearing
on Libby’s alleged deceptions – diGenova echoed the arguments of Libby’s
defense team that Fitzgerald’s news conference comment was somehow
“I think this it is a
very serious development for the prosecutor,” diGenova said. “I can
predict that he will be holding no further news conferences because he
has just been hoisted by his own petard from the last news conference he
Even Fox News anchor
Brit Hume was perplexed by diGenova’s hostility toward Fitzgerald. “You
are quite sharply a critic of him,” Hume noted. “Why?”
“Because I believe that
that news conference was a disgrace,” diGenova responded.
spread quickly around right-wing blogs adding more fuel to the animosity
Bush’s defenders are directing at Fitzgerald, the U.S. Attorney in
Chicago who was named by the Justice Department to handle the Plame case
in December 2003 because then-Attorney General John Ashcroft was too
close to the leak suspects.
But another question
raised by diGenova’s intemperate comments is how a partisan Republican
prosecutor could have been named independent counsel to handle a
sensitive political investigation in 1992, when top aides to George H.W.
Bush were implicated in a scheme to destroy Bill Clinton’s candidacy by
violating the Democratic candidate’s privacy rights in a government
search of his passport file.
In retrospect, the
so-called Passport-gate affair and the Plame-gate investigation have
many parallels, both involving White House abuse of its access to
government secrets and calculated leaks to the press to undermine a
political adversary. But the two prosecutors – diGenova and Fitzgerald –
approached their duties very differently, with diGenova seemingly
determined not to find wrongdoing in contrast to Fitzgerald's dogged
strategy to get to the bottom of the mystery.
The two cases occurred
at politically sensitive moments for the two Bush presidents.
George W. Bush's aides
allegedly leaked classified information about Plame's CIA work in
mid-2003 to undermine her husband, former Ambassador Joseph Wilson,
because he had emerged as a leading critic of Bush's case for war with
Iraq. Wilson had challenged Bush's
claims about Iraq seeking enriched uranium from Africa, just as it was
becoming apparent that Iraq lacked the weapons of mass destruction that
Bush had cited as the principal justification for his invasion.
In 1992, George H.W.
Bush was trailing Clinton in the polls and Bush's advisers hoped to
assure the president's reelection by finding derogatory information in
Clinton's passport file. Under White House pressure, State Department
officials conducted a late-night search of Clinton's passport file,
looking for a rumored letter that Clinton supposedly had written while a
college student at Oxford College seeking to renounce his U.S.
Though the letter
proved non-existent, Bush aides seized on staple holes and a tear in the
corner of Clinton’s passport application – most likely where a check or
photo had been attached – to fashion a criminal referral around the
possibility that a Clinton friend had tampered with the file to remove
the apocryphal letter.
Bush operatives then
leaked to Newsweek the existence of the confidential criminal referral
and got the newsmagazine to go with the spin about a Clinton friend
possibly tampering with the file. George H.W. Bush and other Republicans
then linked the FBI probe with other “suspicions” about Clinton’s
patriotism, causing the Democrat to sink in the polls. [For details, see
Secrecy & Privilege.]
The passport gambit
might have worked, except that some House Democrats smelled the odor of
a Republican dirty trick and exposed the extraordinary late-night search
of the passport files of Clinton and his mother. The FBI also rejected
the criminal referral, further causing the attack on Clinton’s
patriotism to backfire.
In the days after
Bush’s electoral loss to Clinton, the State Department’s inspector
general Sherman Funk cited possible criminal violations surrounding the
passport search. Because of the political sensitivity of the case, the
law at the time required that the case be referred to a three-judge
panel for the selection of an independent counsel.
The outgoing Bush administration was lucky, however, because Supreme
Court Chief Justice William Rehnquist recently had shaken up leadership
of the panel, replacing moderate Republican Judge George MacKinnon with
right-wing Republican Judge David Sentelle, a protégé of Sen. Jesse
Helms and an appointee of Ronald Reagan.
To investigate Passport-gate, Sentelle recruited a fellow Reagan
appointee, former U.S. Attorney Joseph diGenova, to act as the
independent counsel. DiGenova was named in a sealed order on Dec. 14,
Though diGenova’s appointment was made under court seal, an order
that barred disclosure of the investigation, diGenova promptly alerted
the Bush White House. According to a White House phone log, diGenova
called presidential counsel Boyden Gray at 2:40 p.m. on Dec. 16.
DiGenova left an “urgent” message which read: “Not at liberty to give
subject b /c [because] of court order.” [To see Gray's phone log,
When I asked diGenova about the unusual message, he said he called to
inform Gray that a subpoena for White House records would be
DiGenova also recalled that he had contacted Gray only after word of
the appointment had appeared in the Washington Post. I informed diGenova,
however, that the Post story didn’t break until the evening of Dec. 17,
more than a day after the phone call.
DiGenova called me back a few days later with a more formal answer:
“One of the first things I did was to call the White House counsel’s
office to advise him [Gray] that there was a criminal investigation and
he was to protect and preserve documents in the White House. … They had
to know there was an investigation.”
Whatever diGenova’s intention, however, the call did not spur Gray to
issue an immediate order to White House staff about protecting records.
According to another document I discovered at the National Archives, Gray notified the White
House staff about the need to “preserve and maintain documents” only on
Dec. 21, five days after diGenova’s early warning and only after the
White House had received formal notification of the Passport-gate
investigation. [To see Gray's document order,
Later, diGenova’s investigation did find that some relevant White
House files were erased, but it was not clear if the erasures occurred
between the time of diGenova’s first call on Dec. 16 and Gray’s letter
to the staff on Dec. 21.
Relieved White House
While diGenova’s early call may not have prompted an immediate
protection order, the call apparently did reassure Gray that the White
House had little to worry about.
On Dec. 17, after President Bush heard about the independent counsel
appointment, he called Gray, and Gray “said that the special prosecutor
[diGenova] is a good and fair person and that the thing is mainly at the
State Department – the handling of the Clinton matter,” according to
Bush’s diary. [To see excerpts from Bush's diary,
As part of the investigation, diGenova conducted two formal
interviews with former President Bush at his office in Houston.
Handwritten notes from the first interview on Oct. 23, 1993, stated
that diGenova first assured Bush that his staff lawyers were “all
seasoned prof[essional] prosecutors who know what a real crime looks
like. … [This is] not a gen[eral] probe of pol[itics] in Amer[ica] or
dirty tricks, etc., or a general license to rummage in people’s personal
lives.” [To see the notes for the first interview,
click here; for the second,
The FBI’s typewritten report of the interview noted that Bush
acknowledged his personal interest in turning up derogatory information
about Clinton and having it released, but he denied giving a direct
order for the passport search.
“Although he [Bush] did not recall tasking [chief of staff James]
Baker to research any particular matter, he may have asked why the
campaign did not know more about Clinton’s demonstrating” against the
Vietnam War, the FBI interview report stated.
As for his knowledge about some conservative journalists filing
Freedom of Information Act requests for Clinton’s passport records,
“President Bush remembered a general discussion that people were trying
to get some information … although he could provide no details as to who
may have mentioned this to him. …
“The President advised that … he probably would have said, ‘Hooray,
somebody’s going to finally do something about this.’ If he had learned
that the Washington Times was planning to publish an article, he would
have said, ‘That’s good, it’s about time.’ … Based on his ‘depth of
feeling’ on this issue, President Bush responded to a hypothetical
question that he would have recommended getting the truth out if it were
George H.W. Bush said he could not recall if he had heard about the
Clinton passport search before it appeared in the press. But he added
that he might have indirectly encouraged his subordinates to pursue
those anti-Clinton rumors.
“The President added that he would not have been concerned over the
legality of the issue but just the facts and what was in the files,” the
Bush clearly was disappointed that the searches uncovered so little.
“The President described himself as being indignant over the fact that
the campaign did not find out what Clinton was doing,” the FBI report
stated. [To see the typed FBI notes, click
As the interview ended, two of diGenova’s assistants – Lisa Rich and
Laura Laughlin – asked Bush for autographs, according to
After the Bush interviews, diGenova began work on his final report.
Despite the evidence that Clinton’s files had been exploited to
influence the outcome of a presidential election, diGenova concluded
that there was no wrongdoing by anyone in the Bush administration.
DiGenova added “that certain White House personnel may have
indirectly encouraged the search for Clinton’s passport files by making
inquiry about the status of responses to [FOIA] requests.” As for the
Oval Office, diGenova “found no evidence that President Bush was
involved in this matter.”
DiGenova reserved his toughest criticism for State Department
Inspector General Funk for suspecting that a crime had been committed in
the first place. DiGenova castigated Funk for “a woefully inadequate
understanding of the facts.”
John Duncan, a senior lawyer in Funk’s office, protested diGenova’s
findings of no criminal wrongdoing.
“Astoundingly, [diGenova] has also concluded that no senior-level
party to the search did anything improper whatever,” Duncan wrote. “The
Independent Counsel has provided his personal absolution to individuals
who we found had attempted to use their U.S. Government positions to
manipulate the election of President of the United States.”
While there are many
parallels between the Passport-gate and Plame-gate affairs, one striking
difference is how the two prosecutors – diGenova and Fitzgerald –
handled journalists who had received the government leaks.
DiGenova refused to
pressure Newsweek reporters to divulge the government sources who had
leaked the confidential criminal referral on the supposed tampering with
Clinton’s passport file. That meant a central set of facts – who in
George H.W. Bush’s administration was smearing Clinton – was never
By contrast, Fitzgerald
demanded that journalists who received the Plame leaks provide
testimony. Officials in George W. Bush’s administration were pressed to
sign waivers and otherwise grant reporters permission to talk.
The testimony from
these journalists, including New York Times reporter Judith Miller and
Time correspondent Matthew Cooper, revealed that senior White House
officials Lewis Libby and Karl Rove were among the sources disclosing
Plame’s identity amid a broader campaign to discredit her husband.
The history of the
Passport-gate investigation also might help explain why George W. Bush
seemed so confident early in the Plame-gate affair that the
investigation would fail to identify the senior administration
officials who had leaked Plame’s identity.
“I have no idea whether we’ll find out who the
leaker is – partially because, in all due respect to your profession,
you do a very good job of protecting the leakers,” Bush told reporters
at a news conference on Oct. 7, 2003.
Bush’s comment, however, came about two months
before Attorney General Ashcroft recused himself and the investigation
was turned over to Fitzgerald. Because of Fitzgerald’s tenacity – in
marked contrast diGenova’s laxity a dozen years ago – Bush’s prediction
has not held up too well.