White House Probe Raises Legal and Ethical Issues

WASHINGTON —  When members of Congress let the independent counsel law expire after a string of scandals in the 1980s and 1990s, Democrats and Republicans alike were happy to see it go. Now, the flap over a suspected national security leak from the White House is shaping up as the first big test of how to investigate the executive branch since the much-maligned law died. And already, a whole new set of problems is emerging.

The law -- enacted in 1978 and used to investigate the Iran-Contra affair in the 1980s and the Clinton White House in the 1990s -- was criticized for effectively sanctioning politically motivated fishing expeditions that dragged on for years and ended up costing the taxpayers tens of millions of dollars.

But what has taken its place is a highly discretionary regime of administration regulations and legal ethics rules, which have plenty of loopholes and opportunities for political maneuvering.

What’s more, the success enjoyed by the special counsel who were sometimes appointed by presidents to investigate scandals in the years before the independent counsel statute was enacted has been uneven.

Among the first was a special prosecutor tabbed by President Ulysses S. Grant in 1875 to investigate a federal revenue collector who was taking kickbacks from whiskey distillers; Grant eventually fired the prosecutor when he started making headway.

And it was Richard M. Nixon’s decision to fire Watergate special counsel Archibald Cox that helped get the ball rolling toward reform in the first place.

U.S. Atty. Gen. John Ashcroft has resisted calls from some members of Congress to appoint a special prosecutor to check out the latest scandal: allegations that a Bush administration official leaked the name of CIA operative Valerie Plame to columnist Robert Novak. The leak is seen by some as a political dirty trick aimed at discrediting her husband, Joseph C. Wilson IV, a former State Department envoy who in July accused the president of fabricating intelligence in making the case for war in Iraq.

Ashcroft has said that career prosecutors in the Justice Department can adequately handle the case at this stage but has not ruled out the idea of bringing in an outside prosecutor. While Ashcroft has not been personally involved to date, he may face an actual conflict if investigators decide to issue subpoenas to journalists. The subpoenas would require the attorney general’s signature.

As the investigation entered its second week, White House employees Friday were given until the end of the business day Tuesday to turn over documents being sought by Justice Department investigators to President Bush’s legal counsel, Alberto R. Gonzales. The Justice Department previously ordered the White House, the CIA and the State and Defense departments to preserve electronic records, correspondence, computer records and calendar entries relating to the investigation.

Gonzales also asked White House employees to certify in writing that they had turned in materials or did not have any items related to the inquiry. Investigators were also preparing for their first interviews, people familiar with the case said.

Apparently many in the public, and a growing number of Democrats in Congress, think that Ashcroft should step aside because they doubt that he can evenhandedly supervise an investigation that may implicate staff of the president who appointed him.

A Washington Post poll this week found that nearly 70% of respondents thought that a special counsel should be appointed in the case.

And Sen. Charles E. Schumer (D-N.Y.) argued last week that ties between Ashcroft and the White House, including the fact that Bush’s chief political advisor, Karl Rove, was once a paid direct-mail election operative for Ashcroft, meant the attorney general should at the very least recuse himself.

But even prominent legal ethicists are divided.

Stephen Gillers, a professor and vice dean at New York University Law School, said he thought Ashcroft should disqualify himself because of a rule of professional conduct in effect in most states that says a lawyer cannot represent a client when personal relationships or interests would interfere with him exercising independent judgment.

Ashcroft’s ties to Rove, for instance, should “foreclose any involvement by Ashcroft as a lawyer” in the case, according to Gillers. Because of the political debt Justice Department appointees owe the president, it would probably be a good idea if such officials stay away from the case, he said.

But Steven Lubet, an expert on lawyer ethics at Northwestern University Law School, said that without more evidence that Rove was personally involved in the leak, Ashcroft had nothing to worry about.

“Nothing that I have seen tells me that the attorney general is disqualified from exercising the usual supervisory authority over the investigation at this point,” Lubet said.

“That is a pretty attenuated connection, certainly not strong enough to require that the attorney general step aside.... And I say that as a Democrat and no fan of Atty. Gen. Ashcroft,” he said.

The rules covering appointing a special counsel, developed by Atty. Gen. Janet Reno in 1999 when the independent counsel statute expired, are just as squishy.

They require the attorney general to appoint a special counsel when he has a “substantial” conflict of interest, although the attorney general alone has the power to decide whether one exists. And unlike under the independent counsel statute, where a panel of judges chose the special counsel, the sole authority to do so these days rests with the attorney general.

Griffin Bell, attorney general in the Carter administration, appointed what was considered the last special counsel before the independent counsel law went into full effect, to investigate allegations that the Carter family peanut business may have been illegally laundering campaign contributions.

But he chose to have the Justice Department handle a separate case against Carter friend and budget director Bert Lance, covering bank fraud charges.

The special counsel -- Paul Curran, a New York lawyer, and a Republican-appointed U.S. attorney -- eventually cleared the president from any wrongdoing. Justice Department investigators eventually prosecuted Lance, but he was acquitted.

In an interview, Bell, a federal judge before he was selected by Carter to head the Justice Department, said he was guided by a general rule that applies to judges: to withdraw from any matter whenever there was “an appearance of a conflict.”

He said although it might be “good politics” for Ashcroft to personally disassociate himself from the current leak investigation, he saw no reason why the department’s criminal division shouldn’t keep the case, so long as Ashcroft followed normal procedure and kept his distance.

Customarily, he said, the criminal division makes calls on when to prosecute individuals; the attorney general gets involved only when a defendant is making a last-ditch plea to avoid prosecution, and such efforts almost always fail.

“It would be highly unusual for the attorney general to go into the criminal division and say, ‘What are y’all doing about this case,’ ” Bell said, adding that if that did happen, there would be plenty of leaks from career Justice Department prosecutors decrying the intrusion on their authority. “That would be the biggest news story of the year,” Bell said.