"Outing" of Valerie Plame: Conflicts of Interest in Political Investigations After the Independent Counsel Act's Demise, The

Georgetown Journal of Legal Ethics, The, Summer 2004 by Padilla, John, Wagner, Alex

"Wise observers have long understood that the appearance of justice is as important as reality."1

Although investigations of high-ranking government officials are neither rare nor new, they carry with them the potential to bring down powerful leaders, and thus require special precautions. These precautions have manifested themselves over the years in the form of both a regulatory special prosecutor and-over the past three decades-a statutorily mandated "independent counsel." From Watergate to Whitewater, the combination of expansive power and limited accountability inherent in the role of the independent counsel created the potential for serious conflicts of interest.

With the demise of the independent counsel statute2 in 1999, the Department of Justice promulgated new regulations creating an outside special counsel3 in anticipation of a scenario in which the sensitivity of a subject matter or the potential partiality of an Attorney General would necessitate an outside investigation.

The furor over possible violations of federal law relating to the leak of a CIA operative's identity in the fall of 2003 brought about calls for an independent investigation (and possibly eventual prosecution) of senior officials in the administration of President George W. Bush.4 This situation provides a useful case study through which to consider the conflict of interest provisions and .' limitations of the new special counsel regulations, as well as to reexamine the merits of the now-defunct independent counsel statute.

Part I of this Note provides a brief review of the current controversy that spurred calls for the appointment of an outside prosecutor. Part II focuses on the Watergate and Whitewater crises to highlight the conflict of interest issues that motivated both the rise and the fall of the independent counsel statute. Part III examines the new special counsel regulations and contrasts them with the independent counsel statutory provisions. Finally, Part IV explores two hypothetical situations that highlight both personal and political conflict of interest issues that might arise in the post-independent counsel world, comparing such conflicts through the lenses of the special counsel regulations and the lapsed independent counsel statute, to determine which (if either) would be more effective in preventing actual conflict or, perhaps of equal importance, the appearance of conflict.

I. AN "UNPRECEDENTED" CRIME

Shortly after President George W. Bush singled out Iraq, North Korea, and Iran as an "axis of evil" in his 2002 State of the Union address, the CIA began an investigation into claims that Iraq was trying to acquire yellow cake uranium-a substance used in the development of nuclear weapons-from the African country of Niger.5 The CIA selected Ambassador Joseph C. Wilson to lead a fact-finding mission. Wilson, a longtime Foreign Service officer and diplomat, gained extensive experience in both Iraq6 and Africa7 while serving under Presidents George H. W. Bush and Bill Clinton.8 Upon his return, Wilson reported that it was "highly doubtful that any" transfer of uranium "had ever taken place."9 Nevertheless, in his 2003 State of the Union address, President Bush declared that British intelligence had recently discovered that Iraq was seeking to acquire "significant quantities" of uranium from Africa as part of an initiative to restart its nuclear weapons program.10

As media reports began to undermine the credibility of what became known as Bush's "sixteen words," a firestorm of criticism ensued, followed by extensive investigation into the origin of the statement." The controversy was fueled by a series of White House announcements shifting responsibility for the inclusion of the discredited claim from the CIA to British intelligence.12 As the dust over the faulty intelligence began to settle, and with American casualties mounting from the Iraqi occupation, critics of the Bush administration's use of intelligence became more vocal. One of these critics was the last U.S. diplomat to meet with Iraqi dictator Saddam Hussein-Ambassador Joseph Wilson.13 In a July 6, 2003 editorial in The New York Times, Wilson blasted the administration's rationale for going to war, arguing that Bush had "twisted" the intelligence in order to exaggerate the Iraqi threat-in particular, the African uranium claims.14 Wilson stated that a Vice President-initiated CIA investigation had disproved the existence of a Niger-Iraq uranium connection long before the President's speech.15

One week later, on July 14, nationally syndicated columnist Robert Novak sought to explain why the Bush administration might have sent such an outspoken critic of its Iraq policy to investigate the uranium claim.16 According to Novak's column, two senior White House officials told him that undercover CIA operative Valerie Flame, who also happened to be married to Wilson, pushed the agency from within to appoint her husband to lead the mission.17 Public disclosure of an undercover agent's identity is a federal crime, '8 and shortly after Flame's "outing," the CIA initiated an internal investigation to determine whether a crime had been committed.19 As ex-CIA analyst Jim Marcinkowski noted, this story was "not the usual leak from Washington," but a "very, very serious act."20 Marcinkowski went on to characterize the possible "exposure of an undercover intelligence officer by the U.S. government" as "unprecedented."21