Brad DeLong's Semi-Daily Journal (2004)

Blind Ambition

John Dean writes about Bush's need for a private lawyer:

FindLaw's Writ - Dean: The Serious Implications Of President Bush's Hiring A Personal Outside Counsel For The Valerie Plame Investigation: The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself.... Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department.... Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago.... The Fitzgerald investigation has not made friends with the Washington press corps, many of whom are being subpoenaed to testify before the grand jury... under existing law, a journalist cannot refuse to provide information to a grand jury. Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Why might the grand jury wish to hear Bush's testimony?.... There is, of course, one totally benign way to view the situation.... [One] lawyer [said], "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized." But... [a]sking a President to testify - or even be interviewed - remains a serious, sensitive and rare occasion. It is not done lightly.... [I]t seems the investigators are seeking to connect up with, and then speak with, persons who have links to and from the leaked information - and those persons, it seems, probably include the President. Undoubtedly, those from the White House have been asked if they spoke with the president about the leak. It appears that one or more of them may indeed have done so. If so - and if the person revealed the leaker's identity to the President, or if the President decided he preferred not to know the leaker's identity. -- then this fact could conflict with Bush's remarkably broad public statements on the issue. He has said that he did not know of "anybody in [his] administration who leaked classified information." He has also said that he wanted "to know the truth" about this leak.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away.... It seems very possible the leaker - or leakers, for two government sources were initially cited by columnist Robert Novak -- may have panicked, covered up his (or their) illegality, and in doing so, committed further crimes. If so, did the President hear of it? Was he willfully blind? Was he himself the victim of a cover-up by underlings?....

Readers may wonder, why is Bush going to an outside counsel, when numerous government attorneys are available to him - for instance, in the White House Counsel's Office? The answer is that the President has likely been told it would be risky to talk to his White House lawyers, particularly if he knows more than he claims publicly. Ironically, it was the fair-haired Republican stalwart Independent Counsel Kenneth Starr who decimated the attorney-client privilege for government lawyers and their clients.... But Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers. In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege. A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr.... In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again.

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

It is possible that Bush is consulting Sharp only out of an excess of caution - despite the fact that he knows nothing of the leak, or of any possible coverup of the leak. But that's not likely. On this subject, I spoke with an experienced former federal prosecutor who works in Washington, specializing in white collar criminal defense (but who does not know Sharp). That attorney told me that he is baffled by Bush's move - unless Bush has knowledge of the leak. "It would not seem that the President needs to consult personal counsel, thereby preserving the attorney-client privilege, if he has no knowledge about the leak," he told me. What advice might Bush get from a private defense counsel? The lawyer I consulted opined that, "If he does have knowledge about the leak and does not plan to disclose it, the only good legal advice would be to take the Fifth, rather than lie. The political fallout is a separate issue."

I raised the issue of whether the President might be able to invoke executive privilege as to this information. But the attorney I consulted - who is well versed in this area of law -- opined that "Neither 'outing' Plame, nor covering for the perpetrators would seem to fall within the scope of any executive privilege that I am aware of."...