As indictment rumors continue to fly, I just posted the below in my "Capital Games" column at www.thenation.com. Remember to visit www.thenation.com for other good stuff. And if you've seen this already, please scroll down to other items.

In a story posted on Tuesday night, The New York Times, citing unnamed government officials, said that special counsel Patrick Fitzgerald, "is not expected to take any action" in the CIA leak case this week. That's good news for me; I have tickets to see U2 on Wednesday night. But it's also bad news, I am scheduled to go to Arkansas at the end of next week to deliver a speech at Arkansas State University-Jonesboro. (Longtime readers of this blog will recall that I was supposed to speak at Arkansas State University-Mountain Home last April but then the gig was canceled for what appeared to be political reasons. But after a mighty controversy erupted--in which the state legislature decried this apparent act of censorship--the faculty senate at ASU-Jonesboro voted for a resolution requesting that I be invited to speak at the Jonesboro campus, the main hub of the ASU system. The president of ASU took the faculty's recommendation, and I accepted his invitation.) So I am now hoping that if anything happens it happens early next week. The grand jury is scheduled to expire October 28, and lawyers tell me that most prosecutors do not like to wait until the last day of a grand jury's term to announce indictments. But it's possible. It's also possible that new information could cause Fitzgerald to extend his inquiry and impanel a new grand jury. Bottom line: we don't know. On Tuesday, The Washington Post reported Fitzgerald might announce his findings on Wednesday. The Times then reported that would not be likely. What's your hunch?

Most of the Times piece was devoted to the question of whether Fitzgerald would issue a report if he declines to indict anyone. In the old days--that is, when there was an independent counsel law--independent counsels were obligated to issue final reports detailing what they had uncovered and explaining any decisions not to prosecute. Fitzgerald is not an independent counsel but a special prosecutor, appointed in 2003 by then-Deputy Attorney General James Comey because Attorney General John Ashcroft had recused himself. With the independent counsel law expired, there can no longer be independent counsels. Consequently, Fitzgerald is not required to file a final report.

But can he produce such a report if he would like to? As the Times notes, there is a debate among legal experts as to whether he has the authority to do so. Fitzgerald has obtain much of his information through the grand jury process, and grand jury proceedings are supposed to be secret. Some lawyers believe Fitzgerald could issue a report, especially if requested by Congress; others think Justice Department regulations would prohibit that. But you can guess how the political appointees at the Justice Department would interpret the regulations. And would any Republican leaders of Congress ask Fitzgerald for a report? With the Bush administration and congressional Republicans not keen to have a full accounting, it could be difficult for Fitzgerald--if he wants to produce a report--to win a tussle over how to read the regulations. As for whether Fitzgerald wishes to issue a final report, his office has declined to comment on this matter (or any other matter).

Since the start of the leak investigation I have asked congressional Democrats if they were prepared to pressure the administration regarding a final report in this case. A few--most notably, Senator Chuck Schumer--have called for the production and release of such a report. But the Democrats generally have not made this a priority item. That was a strategic misstep. Should Fitzgerald not indict anyone--or should he issue limited indictments--the Democrats (and many within the public) will still yearn for a full accounting of the investigation. Yet demanding a final report after Fitzgerald has made his decisions regarding indictments could look like sour grapes. Republicans will likely argue, "you sore-looser Democrats didn't get the indictments you wanted, so now you're trying to perpetuate this controversy by asking for a report that a special prosecutor is not supposed to release." The Democrats needed to mount a high-profile push for such a report before the end of FItzgerald's investigation. But they have missed their chance.

Final reports from independent counsels in the past have been quite useful. Independent counsel John McKay investigated Edwin Meese, Ronald Reagan's attorney general, and brought no indictments against him. But in his final report, McKay detailed a series of suspicious actions conducted by Meese. Lawrence Walsh, the independent counsel who investigated the Iran-contra affair, released a report rich with details about government officials who were indicted and those who were not. In his report, he included material indicating that Colin Powell on two separate occasions, when he was providing sworn testimony, offered contradictory accounts regarding the notes of Caspar Weinberger, Reagan's defense secretary. Powell had been an assistant to Weinberger. The existence of Weinberger's notes was a critical topic for the Walsh's investigation. and Powell seemed to have changed his story to help Weinberger's legal defense. In his report, Walsh noted he did not have enough evidence to charge Powell with any crime, such as providing false information to Congress. Yet because Walsh outlined this episode in his final report, I was able to report this story. (I was the first journalist--and one of the few--to note Powell's shifting account and his near-indictment. After I broke this news, CNN produced a segment on this story. Then executives in Atlanta killed the piece.)

Final reports can be quite valuable--but only if they are written. If Fitzgerald does not bring wide-ranging indictments that tell the full story, a report-less investigation will not provide a complete accounting. Oddly, it seems that on Tuesday, the White House endorsed the need for a final report. Press secretary Scott McClellan defined a successful completion of the investigation as one in which Fitzgerald would "determine the facts and then outline those facts for the American people." As the Times reports:

Asked if that meant the White House would favor a public report if there were no indictments, Mr. McClellan said that the decision was Mr. Fitzgerald's, but that "we would all like to know what the facts are."

Do you think Bush truly wants to see all the facts placed before the American public? But on this point Fitzgerald and the Justice Department should take McClellan at his word.
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BUSH KNEW OF THE COVER-UP? In Wednesday's New York Daily News, Washington bureau chief Thomas DeFrank has an important story--but much of it is between the lines. He writes:

An angry President Bush rebuked chief political guru Karl Rove two years ago for his role in the Valerie Plame affair, sources told the Daily News.

Bush has nevertheless remained doggedly loyal to Rove....

Waitaminute! Two years ago, the White House--via McClellan--definitively declared that Rove was not "involved" in the CIA leak. But if Bush at some point upbraided his guru about the leak that means (a) Bush knew that Rove was involved and (b) Bush countenanced McClellan's dissemination of a false cover story. This is evidence that Bush was a party to the attempted White House cover-up and that Bush might have directly lied about the issue. On September 30, 2003, he was questioned by reporters about the leak investigation. Here's an excerpt:

Q: Yesterday we were told that Rove had no role in it--

The President: Listen, I know of nobody-- I don't know of anybody in my administration who leaked classified information. If somebody leaked classified information, I'd like to know it, and we'll take the appropriate action.

Was Bush in this exchange reaffirming McClellan's claim that Rove was not involved? That seems to be the case. Did Bush know at this time that Rove was involved in the leak? The Daily News story does not say when Rove spoke to Bush. Has Bush taken "appropriate action" against Rove? (The information that Rove shared with reporters--Valerie Wilson's employment status at the CIA--was classified.) There is no public indication "appropriate action" occurred.

Is it possible that one White House aide is now leaking a false story of Bush chastising Rove in order to distance Bush from the under-fire Rove? DeFrank reports:

Other sources confirmed...that Bush was initially furious with Rove in 2003 when his deputy chief of staff conceded he had talked to the press about the Plame leak.

If DeFrank got this right, he has a bigger scoop than the paper seems to have realized. His article does not note that these accounts from White House aides indicate that Bush knew the White House had lied in its public statements about the leak scandal.

Ever since evidence emerged this summer that showed Rove had discussed Valerie Wilson's CIA position with reporters, one question has been whether Rove had acknowledged his role in the leak to Bush. The Daily News reports:

A second well-placed source said some recently published reports implying Rove had deceived Bush about his involvement in the Wilson counterattack were incorrect and were leaked by White House aides trying to protect the President."

But if Rove did not deceive Bush, then Bush was a party to the Rove-was-not-involved lie promoted by his White House. And this raises the question of what Bush did after Rove told him of his involvement. Bush certainly didn't do anything to correct the public record. I wonder if McClellan wants to see a chapter in a final report on Bush and Rove's conversations about the leak and how Bush responded.

Posted by David Corn at October 19, 2005 12:42 PM