When Patrick Fitzgerald announced the indictment of Scooter Libby, he also gave dispiriting news to those hoping the full account of the Plame scandal would eventually be revealed. Not only did he not plan to release a report, he said, he could not release one -- meaning he'd likely close up shop without revealing much of what he knows about the ways that All the Vice President's Men (and the veep himself, and Karl Rove) sought to discredit a leading war critic.
But a close reading of the Code of Federal Regulations suggests that there's another way the truth could come out -- even information outside the “four corners of the indictment,” to which Fitzgerald claimed to be bound. Even if Fitzgerald can't reveal those details, someone else perhaps can: the attorney general.
Whether the office overseen by staunch Bush loyalist Alberto Gonzales will do that, of course, is another matter. But as will be seen, the regulations suggest, in both spirit and letter, that the attorney general has the discretion to do so if he thinks it's in the "public interest" -- which appears to mean that, unlike Fitzgerald, he can do it if he wants to. That means that whatever his inclination, he perhaps can be forced to reveal details of the probe with enough public pressure.
What's more, the Prospect has unearthed a document revealing that some surprisingly right-leaning politicos think that attorney generals should have the power to disclose non-indictment-related details in investigations of this type. Among them: Bob Dole, Reagan Attorney General Dick Thornburgh, and Chief Justice John Roberts. But more on that later.
Until now, Dems and others seeking full disclosure have insisted that Fitzgerald publicly release a final report on the affair, à la Ken Starr. But The New York Times recently reported that Fitzgerald wouldn't be issuing such a report, and at his press conference, Fitzgerald said, "I do not have the authority to write a report, and, frankly, I don't think I should have that authority." The issue has since disappeared from view.
But let's take a look at the dense legal thicket known as the Code of Federal Regulations, which is supposed to govern the attorney general -- and the Justice Department and AG -- during such probes.
Those regulations were first created by Janet Reno, the attorney general under Bill Clinton, in the summer of 1999, and they are known as 28 CFR 600. The independent-counsel statute, which gave us Whitewater, had just lapsed. The goal of the new regulations was to make it possible for investigations to take place under extraordinary circumstances (such as Whitewater or the Plame affair) without being turned into political witch-hunts. One key was limiting the extent to which the person leading the investigation could make his or her findings public.
At a press conference in December 2003, when then–Deputy Attorney General James Comey announced the appointment of Fitzgerald, he cited the Reno-created regulations as the basis for his doing so, and press reports at the time suggested that Fitzgerald's probe would be operating under the regulations.
These rules lay down a series of very specific probe guidelines that must be followed not only by the special counsel but also by the Justice Department. From these rules we learn that the Special Counsel is, in fact, required to produce a report -- but a secret one. Section 600.8 (c) reads: "At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." The report is to be confidential, of course, to prevent politicization of the probe. Nonetheless, the special counsel is clearly obliged to brief the attorney general not just on indictments but on his failure to bring indictments as well.
The regulations go on to say much more, specifically concerning the attorney general, but first a question needs to be addressed: Does Fitzgerald, in fact, have to follow the regulations and deliver the attorney general a confidential report?
Randall Samborn, a spokesman for Fitzgerald, declined to comment. Sources close to Fitzgerald's office, however, argue that he doesn't. They point to a letter that Comey, the deputy attorney general, sent to Fitzgerald on February 6, 2004, seemingly exempting the special prosecutor from following them. It reads: "My conferral 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 600." One immediate question that presents itself is, does the attorney general's office have the authority to unilaterally exempt the special counsel from federal regulations?
Whatever the answer, the regulations beg a more important question than whether or not Fitzgerald need follow them. That's because they're also meant to govern the Justice Department's conduct during the probe. So: Does the attorney general's office have to follow them? If so, things could get very interesting.
Here's why. The regulations, in addition to seeking to depoliticize such probes, also wrestle with another important issue: how to make sure the public knows its interests were served by an investigation whose findings -- which in this case concern the conduct of the vice president, if not the president himself -- have largely remained shrouded in secret.
The regulations solve this by stipulating that the AG, having been briefed at regular junctures, must -- not can or should, but must -- give “notification and reports” on the probe to Congress at various points in the investigation, including its conclusion. The regulations are cryptic about what's supposed to be in the AG's reports. The discussion section of 600.9 states that they are supposed to be “brief,” but -- and this is important -- are also meant to reassure the public that the probe is sound: “to help ensure congressional and public confidence in the integrity of the process, the regulations impose on the Attorney General these reporting requirements to the Judiciary Committee of the Congress.”
What's more, the rules say: “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.”
Presumably those “restrictions” refer to rules prohibiting Justice from revealing grand jury information. But two things are clear from these regulations: First, the attorney general has the discretion to include in his reports whatever he thinks would be in the best interest of the public. And second, he has the discretion to weigh whether the need for secrecy is outweighed by the virtues of disclosure to the public. Gonzalez, of course, would hardly be inclined to entertain the public's interest and contemplate releasing details that would embarrass his boss. But he apparently does have the option of disclosure. (Gonzalez has recused himself, so one of many questions is whether he or someone else would decide these things.)
What's more, even if the attorney general refuses to release his reports publicly the regulations create another way the public can be informed. Once the attorney general has given his reports to Congress' judiciary committees, what would legally prevent legislators from handing out copies of the report on the steps of the Capitol?
Nothing, says at least one legal expert. In an analysis of the regulations done in 1999 for the Brookings Institution, Michael Davidson (now a Senate lawyer) wrote, "The regulation cannot govern whether the House or Senate Judiciary Committees will release the reports from the Attorney General to them." (Grand-jury testimony is not classified in an absolute sense: Remember, witnesses are not barred from blabbing about it publicly.)
So the question comes down to this: Is Alberto Gonzales obliged to follow the Code of Federal Regulations governing the Justice Department's conduct during this probe?
A department spokesman didn't return calls the Prospect's calls. But one possible argument the attorney general's office might make is that by exempting Fitzgerald from the regulations, it has also exempted itself. I'm not a lawyer, and for all I know such an argument could hold up; there may well be other legal reasons why the attorney general is not bound by these rules. But if there are, the attorney general hasn't publicly shared them -- and politicians in both parties should demand that he do just that.
“It's certainly not clear to me how Mr. Comey or the attorney general can unilaterally modify a public rule -- or exempt itself from a public rule -- that Janet Reno established as an alternative to the Independent Counsel law,” says former Clinton White House special counsel Lanny Davis.
And even if there is some legal loophole that would make that possible, the point remains: These regulations seem to show that even if Fitzgerald is bound by secrecy, there is in fact a legal way that at least some of the probe's findings can come to light. “The issue the Attorney General certainly should look into is whether he in fact has a legal mechanism by which he can issue a report to Congress, which he could then encourage Congress to release,” Davis continues. It may be that while Fitzgerald has to maintain secrecy, the attorney general doesn't.
How would the attorney general know the details of Fitzgerald's probe? Presumably he could ask for briefings. There's nothing stopping Fitzgerald from voluntarily following the regulations and briefing the attorney general, right?
Whatever could develop, one thing is clear: These regulations beg a whole lot of tough questions that need to be answered -- and that the media should be posing. If Fitzgerald isn't beholden to Reno's regulations, what rules are governing his investigation? If the AG doesn't report to Congress -- and the vast majority of the investigation's findings remain secret -- how will the public be reassured that Fitzgerald's probe into the conduct of our most powerful public officials accomplished justice? Even if Comey has successfully exempted Fitzgerald -- and the attorney general's office -- from the regulations, why did he do it in the first place, and was he trying to prevent the public from learning about the probe? Can it be reversed?
The very existence of the regulations also would seem to give Democrats or good-government types an opening for a serious political challenge, if not a legal one, of the attorney general on the disclosure question. They can say: "The attorney general should fully inform Congress, because the public has a right to be fully informed.” When the argument is framed as "accountability for the government" versus "self-preservation via secrecy on the part of government," accountability tends to win -- such as when Democrats and the families of September 11 victims forced a recalcitrant Bush White House to create the 9-11 commission.
What's more, those seeking transparency can point to the White House's own statements. In a daily briefing not long ago, White House press secretary Scott McClellan said that he hoped that once all the facts had been determined, they were outlined "for the American people," adding, "We would all like to know what the facts are."
Finally, those seeking to compel the attorney general to disclose details of the probe can count some very prominent Republicans as allies. In May of 1999, before Reno's regulations took effect, the American Enterprise Institute (AEI) teamed up with the Brookings Institution to release a report commenting on the new rules. One of the report's key conclusions? The way to make sure special counsel probes are accountable to the public is "through reports from the Attorney General to Congress.” It adds: “The Attorney General's duty, on behalf of the Executive Branch, to be responsive to Congress … should be sufficient assurance that information will be appropriately shared."
The report was co-chaired by Bob Dole and bore the names of, among others, Richard Thornburgh, AEI luminary Norman Ornstein, and a lawyer then in private practice named John G. Roberts Jr.
Greg Sargent, a contributing editor at New York Magazine, writes a biweekly column for The American Prospect Online. He can be reached at
greg_sargent@newyorkmag.com
.
