Executive privilege seen as leak-case option

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Executive privilege seen as leak-case option

Shielding material is not ruled out; Democrats protest

By Wayne Washington, Globe Staff, 10/8/2003

WASHINGTON -- Despite President Bush's repeated pledges of full cooperation, administration officials yesterday refused to rule out invoking executive privilege to shield some documents from Justice Department investigators looking into whether someone in the White House illegally leaked the name of a CIA operative.

Democrats who have complained that the investigation should be handled by a special counsel instead of the Justice Department because of its connections to the White House said the prospect of executive privilege being used shows that more independence is needed.

"Asserting executive privilege would make a farce of the investigation," said US Senator Edward M. Kennedy, Democrat of Massachusetts. "That's why we need a special prosecutor, so that we can challenge any coverup."

The very words "executive privilege" evoke memories of scandal-plagued presidents trying to use the power of their office to hide from public view politically damaging information, and White House press secretary Scott McClellan was careful not to use the term. Still, he would not rule out the use of executive privilege, saying: "I think it's premature to even speculate about such matters."

Presidents can invoke executive privilege to shield from public view some aspects of their internal decision-making process. "It's used to shroud advice that's sometimes inflammatory or has been rejected," said Thomas Sargentich, a law professor at American University in Washington, D.C. "Executive privilege is not supposed to be a shield in criminal investigations."

Yesterday, Bush pledged "full disclosure" in the leak investigation, adding that he wants "to know the truth."

But even as the approximately 2,000 people who work for him at the White House scoured their desks for notes and e-mail to meet a 5 p.m. deadline to deliver any documents related to the alleged disclosure, Bush said the identity of the leaker might never be known.

"This is a town full of people who like to leak information," Bush said to reporters after meeting with Cabinet members. "I have no idea whether we'll find out who the leaker is partially because, in all due respect to your profession, you do a very good job of protecting the leakers."

As the 5 p.m. deadline passed, staff members scrambled to turn over relevant documents to White House Counsel Alberto R. Gonzales, who is the White House's liaison to the Justice Department during the investigation. Justice Department officials have given the White House specific deadlines to produce documents related to the investigation, though they would not make the dates public. McClellan said the deadlines are in the next couple of weeks.

McClellan said Gonzales's office set its own deadline for 5 p.m. yesterday so that it could go through the piles of information to see what information is relevant and should be turned over.

Gonzales's office will also have the opportunity to examine what information, if any, should not be turned over because the administration believes it is protected by executive privilege. The Justice Department's Office of Legal Counsel, which provides legal opinions on questions with constitutional dimensions, would review any White House claims.

Sargentich, who worked in the Office of Legal Counsel during the Carter and Reagan administrations, said lawyers in that office can make independent judgments, though the attorney general remains their boss and can overrule them.

If the White House asserts a claim of executive privilege, Sargentich said it would be a strong sign that the investigation is heading to the highest levels of the Bush administration, given that the claim can only be used to shield the president's decision-making process.

Former US ambassador Joseph Wilson has backed off his initial claim that Bush's top political adviser, Karl Rove, leaked the name of his CIA agent wife, Valerie Plame, as retribution for his work disputing some of the intelligence the administration used to bolster its case for war in Iraq. It is a federal crime to disclose the name of an undercover CIA agent.

Wilson now says that Rove did nothing to contain the leak.

McClellan said that neither Rove nor Lewis "Scooter" Libby, Vice President Dick Cheney's chief of staff, nor Elliott Abrams, director of Mideast Affairs at the National Security Council, leaked Plame's name to the press or authorized the disclosure.

But McClellan refused to say if Rove pointed reporters to the disclosure. Yesterday, US Representative John Conyers Jr. of Michigan, the top Democrat on the House Judiciary Committee, called on Rove to resign.

"Since these initial allegations have arisen, neither the White House nor your office have denied your involvement in furthering the leak," Conyers wrote in a letter to Rove.

Administration officials have said Democrats are using the investigation to score political points and strongly back Rove. Still, the investigation has already meant some late nights for staff combing through their files to see if they have anything that should be given to investigators.

Bush's chief of staff, Andrew H. Card Jr., told White House staff in a letter yesterday that the president expects full cooperation. "The sooner we complete the search and delivery of documents, the sooner the Justice Department can complete its inquiry and the sooner we can all return our full attention to doing the work of the people that the president has entrusted to us."

© Copyright 2003 Globe Newspaper Company.