Washington Post columnist Richard Cohen seems to be confused. Cohen apparently does not understand an issue that forms the basis of his October 13 column blasting special prosecutor Patrick Fitzgerald, who is heading up the Department of Justice investigation into the leak of former CIA covert operative Valerie Plame. That issue is the scope of Fitzgerald's authority, which Cohen seems to suggest Fitzgerald is overstepping. Headlined “Let this Leak Go,” Cohen's column pooh-poohed the significance of the leak, which he describes as par for the course in Washington. Cohen also raised the specter of prosecutorial excess by invoking independent counsel David Barrett, who in 1995 undertook an investigation into false statements made by then-Secretary of Housing and Urban Development Henry Cisneros regarding payments to Cisneros's mistress; Barrett has long since dispensed with the Cisneros matter, but the investigation keeps going at a cost of $21 million to date. Cohen wrote that Fitzgerald may have moved on from “the illegal act he was authorized to investigate” to “some other one -- maybe one concerning the disclosure of secret material.”
But what Cohen doesn't seem to understand is that “the illegal act” he is apparently referring to -- potential violation of the 1982 Intelligence Identities Protection Act (IIPA) -- involves the same sequence of events as would be implicated in the “some other one” he also refers to -- “disclosure of secret material.” Whether or not Fitzgerald seeks an indictment under the IIPA (which states that it is unlawful for someone to knowingly divulge the identity of an agent whose “intelligence relationship to the United States” is being actively concealed), the Espionage Act (which concerns the release of classified information to someone not authorized to receive it), laws prohibiting perjury or obstruction of justice, or anti-conspiracy laws (which Cohen dismissively suggests is the refuge of prosecutors when they don't have a real violation of the law to prosecute) -- or seeks no indictment at all -- everything stems from the alleged leaking of Plame's identity as a CIA operative, which Fitzgerald was charged with investigating. Bush administration officials allegedly leaked her identity in order to undermine the credibility of her husband, former ambassador Joseph C. Wilson IV, a vociferous critic of the Bush administration's decision to go to war with Iraq.
In asserting that Fitzgerald “might not indict anyone for the illegal act he was authorized to investigate,” Cohen seems to suggest that Fitzgerald was given limited authority -- to investigate possible violations of only one statute, the IIPA. That is false. Fitzgerald's official delegation as special prosecutor, which was reprinted in a 2004 Government Accountability Office (GAO) decision paper, did not limit his prosecutorial authority to any particular statute. Rather, it granted him “all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity.”
In the December 30, 2003, press conference to announce Fitzgerald's appointment, then-deputy attorney general James Comey made clear that the investigation's scope was at the special prosecutor's discretion. He contrasted this with the more limited mandate allowed an “outside special counsel” :
COMEY: Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive [sic] decisions to make. I expect that he will only consult with me or with Assistant Attorney General [Christopher] Ray, should he need additional resources or support.
My choice of Pat Fitzgerald, a sitting United States attorney, permits this investigation to move forward immediately and to avoid the delay that would come from selecting, clearing and staffing an outside special counsel operation. In addition, in many ways the mandate that I am giving to Mr. Fitzgerald is significantly broader than that that would go to an outside special counsel.
An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission. Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it.
In a subsequent letter, Comey further defined Fitzgerald's authority as plenary and clarified that he would not be subject to the same limitations as an outside special counsel. The GAO quoted this letter as follows:
In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary. It also states, “Further, my conferral on you of the title of Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.”
The above evidence shows that the legal approaches Cohen listed would be well within the scope of Fitzgerald's authority. These include charges related to conspiracy or the disclosure of classified material -- which Cohen dismissively referred to as “secret material,” the disclosure of which he wrote constitutes “a daily occurrence in Washington, where most secrets have the shelf life of sashimi.” For a different view on the seriousness of the leak, see "Why Patrick Fitzgerald Gets It" by Larry Johnson.
Later in the column, Cohen again mischaracterized Plame's covert work at the CIA as an “official secret” and falsely suggested that such information was “known to hairdressers, mistresses and dog walkers all over town.” But the identity of a CIA operative is classified information, not simply a secret. Moreover, news reports have indicated that Plame's identity was unknown even to her friends and neighbors.