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Grand Jury Could Call Bush to Testify

The Serious Implications Of President Bush's Hiring A Personal Outside Counsel For The Valerie Plame Investigation
Friday, Jun. 04, 2004

Recently, the White House acknowledged that President Bush is talking with, and considering hiring, a non-government attorney, James E. Sharp. Sharp is being consulted, and may be retained, regarding the current grand jury investigation of the leak revealing the identity of Valerie Plame as a CIA covert operative.

(Plame is the wife of Bush critic and former ambassador Joe Wilson; I discussed the leak itself in a prior column, and then discussed further developments in the investigation in a follow-up column.)

This action by Bush is a rather stunning and extraordinary development. The President of the United States is potentially hiring a private criminal defense lawyer. Unsurprisingly, the White House is doing all it can to bury the story, providing precious little detail or context for the President's action.

According to the Los Angeles Times, Bush explained his action by saying, "This is a criminal matter. It's a serious matter," but he gave no further specifics. White House officials, too, would not say exactly what prompted Bush to seek the outside advice, or whether he had been asked to appear before the grand jury.

Nonetheless, Bush's action, in itself, says a great deal. In this column, I will analyze what its implications may be.

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)

Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style - not D.C.-style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of whom are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing appeared before any grand jury to reveal their sources. So this issue is headed toward a showdown. And 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.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

There is, of course, one totally benign way to view the situation. "It is hard for me to imagine that Pat Fitzgerald is going to be going aggressively after the president," one Washington lawyer told the Los Angeles Times. "My guess is that he feels a need to conduct an interview because he needs to be in a position to say, 'I have done everything that could be done.'" The lawyer added, "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized."

But from what I have learned from those who have been quizzed by the Fitzgerald investigators it seems unlikely that they are interviewing the President merely as a matter of completeness, or in order to be able to defend their actions in front of the public. Asking a President to testify - or even be interviewed - remains a serious, sensitive and rare occasion. It is not done lightly. Doing so raises separation of powers concerns that continue to worry many.

Instead, it 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. (I should stress, however, that I do not have access to grand jury testimony, and that grand jury proceedings are secret. But the facts that are properly public do allow some inference and commentary about what likely is occurring in the grand jury.)

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.

If Bush is called before the grand jury, it is likely because Fitzgerald believes that he knows much more about this leak than he has stated publicly.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away - if indeed there have been any. It is remarkably easy to obstruct justice, and this matter has been under various phases of an investigation by the Justice Department since it was referred by the CIA last summer.

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? The grand jury may be interested in any or all of these possibilities.

Bush Needs An Outside Attorney To Maintain Attorney-Client Privilege

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 - which, to paraphrase the authority Wigmore, applies when legal advice of any kind is sought by a client from a professional legal adviser, where the advice is sought in confidence.

The reason the privilege was created was to insure open and candid discussion between a lawyer and his or her client. It traditionally applied in both civil and criminal situations for government lawyers, just as it did for non-government lawyers. It applied to written records of communications, such as attorney's notes, as well as to the communications themselves.

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. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

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.

This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

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.

What Might a Private Attorney Advise Bush to Do?

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 legaladvice 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."

That may not stop Bush from trying to invoke executive privilege, however - or at least from talking to his attorney about the option. As I have discussed in one of my prior columns, Vice President Dick Cheney has tried to avoid invoking it in implausible circumstances - in the case that is now before the U.S .Supreme Court. Rather he claims he is beyond the need for the privilege, and simply cannot be sued.

Suffice it to say that whatever the meaning of Bush's decision to talk with private counsel about the Valerie Plame leak, the matter has taken a more ominous turn with Bush's action. It has only become more portentous because now Dick Cheney has also hired a lawyer for himself, suggesting both men may have known more than they let on. Clearly, the investigation is heading toward a culmination of some sort. And it should be interesting.


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


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With my little knowledge of law this appears to be another cover-up by Washington, and without a doubt Bush,Cheney,Rove & Libby all have been complicit in committing this "TREASON" against the state, and the covert operative.

Therefore, they all should be tried under the "Act of Treason" with predjudice.
This appears to be one of many acts of treason this administration has committed.

I agree on the cover-up. They didn't have to release any names on
Cheney's energy policy meeting and more should have been made of that.

With GAS soon to be $4.00 a gallon in Cook County (Chgo)it is time all the brain dead Dem's start figuring it out.
For statrters force the twin thieves to eliminate the taxes on Gas Crooks Daley and Stroger will be indicted if Fitz stays in as US Atty for the NO Dist Illinois, they like Dubya have deep pockets for their cronies and like Dubya contributors,
They should all be in the same country club with Cheney-Dubya and Rummy for conspiracy and looting or in Marion Illinois with Perle-Wolfowicz -Feith-Franlin and the rest of the Neo's for espionage

Lets have Bush Cheney Rove and Libby all take a Polygraph, then we will know for sure if they're lying.


Why, I wonder, have Novak and his paper not been charged for printing this article on Plame?? Rove and Libby may have talked, but the paper made this news available to the country and Novac wrote it. Shouldn't they be tried as "accomplices before the fact"?

Good question! I have asked it repeatedly. If Robert Novak and his editors did not release the Plame leak to the public via his column there would be no endangerment of the anti-terrorist arm of the CIA and Plame as well as the lives of agents and assets connected to it abroad. Judith Miller was a red herring. She made notes of it, but did not write an article about it.Robert Novak is totally complicit, a toady of the neocons in the White House, and should not only be stripped of his title of "journalist" but tried for treason as well. Is he made of Teflon or something? What gives? We should rightfully call for his head on a platter. Shame on the media for giving him a free pass!

There has been treason against the USA since Perle and Wolfowicz were knocking on doors looking for work first for Dem's and then GOP, the Dem's are not knocking the AEI_AIPAC master spies they are solicitating their support and endorsement, indict every politician who accepts money and endorsements from Zionists especially Christian Zionists like the Rev Pat.Bombast
Lynn Cheney-Scooter Libby-Perle- Feith-Wolfy everyone knows who the spies are in the administration who are the third column Democrat's, the Clinton's, the NY and Mass delegation the leadership and half the Senate the House leadership in both parties , on and on remember what REp Moran Va and former Sen Hollings said last year about the Israeli Warhawks running the congress and the War, the Fox media of Roger Ailes is just the other side of the coin of the Israeli political process in new jerusalem West.

Dean; another reason I am disappointed in my party. Why didn't we just go out and hire BOZO the clown?

How do we reach you??

Between the "Downing Street Memos" The outing of Plame,and the many un answered questions surrounding 9/11,this administration obviously feels it is above the law.By invoking the mantra of "National Security" even asking a question in this day and age puts one at risk of becoming a target of the powers that be.The Bill of Ro\ights is looked upon as some quaint inconvenience to be circumvented,rather than the core of Americas geatness,that by the way,every government worker must take an oath to defend from all enemies foreign and domestic.Executive Orders have done what no Legislative body would dare to do.None have ever been chalanged,no matter how blatantly they oppose the Constitution.The Congress has merely to sit on their hands and do nothing and they become the law of the land.The Grand Jury that Fitzgerald has convened is charged with the most serious task ever brought before what Justice Scalia refered to as the "Fourth Branch of Government"Even without the backing of a Prosecutor the Grand Jury is empowered by the Constitution to issue a "True Bill"as the last check and balance left to the people of this great country to insure the honesty of elected officials.I sincerly hope that the administration has acted in good faith regarding these matters.The fallout from this could damage the office of President in ways that can hardly be imagined.All people of power should remember the phrase When you look into the void the void is also looking into you.The urge to take the expedient path of letting the ends justify the means,has done a great deal to bring about Americas current problems.Every world citizen who is killed by collateral damage,is rounded up and tortured,who goes to bed hungry becomes a potential enemy.Sharing a meal,and the resources to feed ones family with the dienfranchised of this world will do more to bring about peace than all the smart bombs ever will.

Can't all of us who are against the war, against the lies, against the chicanry start sending post cards from all over the country to the White House, with one or two lines such as "You will go down in history as the worst President the country has ever had." No signatures just messages and post marks from every state in the union.

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