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Dissing Fitzgerald & Prosecutorial Politics

By Robert Parry
November 24, 2005

When special prosecutor Patrick Fitzgerald’s investigation into the outing of covert CIA officer Valerie Plame is debated on TV, one of Fitzgerald’s fiercest critics has been Joseph diGenova, who is described as a former independent counsel himself.

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 the admission 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 justice.

“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 important.

“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 held.”

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.

DiGenova’s comments 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.

Parallel Cases

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. citizenship.

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 Robert Parry’s Secrecy & Privilege.]

Backfiring

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, 1992.

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, click here.]

When I asked diGenova about the unusual message, he said he called to inform Gray that a subpoena for White House records would be forthcoming.

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, click here.]

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, click here.]

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, click here.]

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 legal.”

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 FBI wrote.

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 here.]

As the interview ended, two of diGenova’s assistants – Lisa Rich and Laura Laughlin – asked Bush for autographs, according to the handwritten notes.

DiGenova's Conclusions

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 discovered.

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.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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