An Open Letter to Special Counsel Patrick Fitzgerald

From Former White House Counsel John W. Dean
By John W. Dean
FindLaw.com

Friday 18 November 2005

The Honorable Patrick J. Fitzgerald
Special Counsel
Bond Federal Building
1400 New York Avenue, NW
Washington, DC 20530

Dear Special Counsel Fitzgerald:

Excuse my being so presumptuous as to send you this open letter, but the latest revelation of the testimony, before the grand jury, by Washington Post reporter Bob Woodward has raised some fundamental questions for me.

In your post as Special Counsel, you now have nothing less than authority of the Attorney General of the United States, for purposes of the investigation and prosecution of "the alleged unauthorized disclosure of a CIA employee's identity." (The employee, of course, is Valerie Plame Wilson, a CIA employee with classified status, and the wife of former Ambassador Joseph Wilson.) On December 30, 2003, you received a letter from the Deputy Attorney General regarding your powers. On February 6, 2004 you received a letter of further clarification, stating without reservation, that in this matter your powers are "plenary." In effect, then, you act with the power of the Attorney General of the United States.

In light of your broad powers, the limits and narrow focus of your investigation are surprising. On October 28 of this year, your office released a press statement in which you stated that "A major focus of the grand jury investigation was to determine which government officials had disclosed to the media prior to July 14, 2003, information concerning Valerie Wilson's CIA affiliation, and the nature, timing, extent, and purpose of such disclosures, as well as whether any official made such a disclosure knowing that Valerie Wilson's employment by the CIA was classified information."

If, indeed, that is the major focus of your investigation, then your investigation is strikingly limited, given your plenary powers. To be a bit more blunt, in historical context, it is certainly less vigorous an investigation than those of your predecessors who have served as special counsel - men appointed to undertake sensitive high-level investigations when the Attorney General of the United States had a conflict of interest. (Here, it was, of course, the conflict of Attorney General John Ashcroft that led to the chain of events that resulted in your appointment.)

The Teapot Dome Precedent

As I am sure you are aware, President Calvin Coolidge appointed Owen J. Roberts, a Philadelphia attorney at the time, and former U.S. Senator Atlee Pomerene, then practicing law in Ohio, as special counsels to investigate and prosecute on behalf of the government any wrongdoing related to the so-called Teapot Dome inquiry. That investigation related to the improper dissipation of government assets - dubious oil leases to Edward L. Doheny and Harry F. Sinclair.

Several years ago, I had an opportunity to spend several weeks at the National Archives going through the files of Special Counsels Roberts and Pomerene. I urge you to send a member of your staff to do the same, for they are highly revealing as to the aggressive - yet appropriate - nature of their investigation and actions.

What you will find is that Roberts and Pomerene, before figuring out exactly who was to blame and going after them, first sought to protect the interest of the United States by ending the further dissipation of the nation's oil reserves to Doheny and Sinclair, and seek restitution.

In brief, they started by taking protective civil measures. Only with that accomplished did they move on to criminal prosecutions. Why have you not done the same?

Your investigation also relates to the dissipation - if not the irreparable destruction - of a government asset: Valerie Plame Wilson. As you no doubt know, the U.S. Government invested a great deal of money in her special education and training, as well as other aspects of her covert status. Then, either intentionally, or with gross negligence, senior Bush administration officials blew Valerie Wilson's cover. (Prior to the disclosure, her status was not, as some have claimed, an "open secret": Rather, as you yourself have said, the fact that she was a CIA asset was not previously well-known outside the intelligence community.)

Yet there is no evidence that you have made any effort whatsoever to undertake any civil remedies dealing with this either intentional or grossly careless destruction of a government asset. As acting Attorney General for this matter, you have even more authority than did Special Counsels Roberts and Pomerene.

Those who leaked the information about Valerie Wilson breached signed contracts they had made with the government. These contracts, moreover, were not to be taken lightly: They enforced profoundly important obligations to national security, on the part of the very people who were supposed to be serving that end.

Why are you not enforcing those contracts? Why have you not urged the president to sanction those who have released national security information? The president has said he would fire those who committed crimes - but breach of such profoundly important contracts, even if it does not rise to the level of a crime, is surely cause for dismissal, as well.

You should so urge the President. And if he is not willing to take appropriate action with those who have dishonored their offices, and broken their contracts, you ought to go to court and get an injunction to remove their security clearances.

Again, their agreement with the government was the very understanding upon which they were (and continue to be) given classified information. Now that they have breached it, the vital predicate for those clearances is gone.

The Watergate Precedent

Even more troubling, from an historical point of view, is the fact that the narrowness of your investigation, which apparently is focusing on the Intelligence Identities Protection Act (making it a crime to uncover the covert status of a CIA agent), plays right into the hands of perpetrators in the Administration.

Indeed, this is exactly the plan that was employed during Watergate by those who sought to conceal the Nixon Administration's crimes, and keep criminals in office.

The plan was to keep the investigation focused on the break-in at the Democratic National Committee headquarters - and away from the atmosphere in which such an action was undertaken. Toward this end, I was directed by superiors to get the Department of Justice to keep its focus on the break-in, and nothing else.

That was done. And had Congress not undertaken its own investigation (since it was a Democratically-controlled Congress with a Republican President) it is very likely that Watergate would have ended with the conviction of those caught in the bungled burglary and wiretapping attempt at the Democratic headquarters.

Now, with a Republican-controlled Congress and a Republican President, you (a Republican appointee) are the last bulwark of protection for the American people. We must hope you will keep faith with them.

It was well understood at the Nixon White House, and it surely is at the Bush White House, that government attorneys do not look to prosecute those for whom they work. We knew that career government lawyers simply were not going to be looking for crimes at the White House - not because they acted with corrupt intent, but simply because it is no one's instinct to bite the hand that feeds them.

When Archibald Cox was appointed special counsel - under pressure from the U.S. Senate as a condition to confirm Attorney General Elliot Richards - he immediately recognized what had occurred. While no Department of Justice lawyer was found to have engaged in the cover up, their timidity had facilitated it. Cox was fired because he refused to be intimidated. His firing became a badge of honor for all those who do the right thing, regardless of the consequences.

While I have no reason to believe you are easily intimidated, all I can say is that your investigation, thus far, is falling precisely within the narrow confines - the formula procedure - that was relied upon in the first phase of the Watergate cover-up by the Nixon administration.

So narrow was your investigation that it appears that you failed to learn that Bob Woodward had been told of Valerie Wilson's CIA post until after you had indicted Scooter Libby. While I have no doubt you know your way around the Southern District of New York, and the Northern District of Illinois, Washington DC is a very different place.

With all due respect, Mr. Fitzgerald, I believe you are being had. I believe that you were selected with the expectation that you would conduct the narrowest of investigations, and it seems you have done just that.

The leak of Valerie Wilson's status did not occur in a vacuum. Republicans in Congress do not want to know what truly happened. You are the last, best hope of the American people in this regard.

I can tell you, as someone who travels about the country, that Americans - regardless of their political disposition - are deeply troubled by this case. And, increasingly so, by the limits you have apparently placed on your investigation.

To right-minded Americans, the idea that Administration officials have betrayed their national security obligations, yet remain in their jobs, is nothing short of appalling. Beyond politics is patriotism: Patriotic Americans want to see you not only prosecute those who compromised and endangered Valerie Plame Wilson, but also force the Administration to clean house with respect to those who did this, which you can accomplish through appropriate civil action.

As one who does know something about the way Washington works, I hope you will actually use the plenary powers you have been granted to implement what I understood to be the announced policy of the Department of Justice for which you work - a zero tolerance policy for leaks.

John W. Dean, a FindLaw columnist, is a former counsel to the president.