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John W. Dean on Fitzgerald--11-18-05

http://writ.findlaw.com/dean/20051118.html
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An Open Letter To Special Counsel Patrick Fitzgerald From Former White
House Counsel John W. Dean
By JOHN W. DEAN
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November 18, 2005

The Honorable Patrick J. Fitzgerald
Special Counsel
Bond Federal Building
1400 New York Avenue, NW
Washington, DC 20530

Dear Special Counsel Fitzgerald:

Excuse my being so presumptuous as to send you this open letter, but the
latest revelation of the testimony, before the grand jury, by Washington
Post reporter Bob Woodward has raised some fundamental questions for me.
In your post as Special Counsel, you now have nothing less than
authority of the Attorney General of the United States, for purposes of
the investigation and prosecution of "the alleged unauthorized
disclosure of a CIA employee's identity." (The employee, of course, is
Valerie Plame Wilson, a CIA employee with classified status, and the
wife of former Ambassador Joseph Wilson.) On December 30, 2003, you
received a letter from the Deputy Attorney General regarding your
powers. On February 6, 2004 you received a letter of further
clarification, stating without reservation, that in this matter your
powers are "plenary." In effect, then, you act with the power of the
Attorney General of the United States.

In light of your broad powers, the limits and narrow focus of your
investigation are surprising. On October 28 of this year, your office
released a press statement in which you stated that "A major focus of
the grand jury investigation was to determine which government officials
had disclosed to the media prior to July 14, 2003, information
concerning Valerie Wilson's CIA affiliation, and the nature, timing,
extent, and purpose of such disclosures, as well as whether any official
made such a disclosure knowing that Valerie Wilson's employment by the
CIA was classified information."

If, indeed, that is the major focus of your investigation, then your
investigation is strikingly limited, given your plenary powers. To be a
bit more blunt, in historical context, it is certainly less vigorous an
investigation than those of your predecessors who have served as special
counsel -- men appointed to undertake sensitive high-level
investigations when the Attorney General of the United States had a
conflict of interest. (Here, it was, of course, the conflict of Attorney
General John Ashcroft that led to the chain of events that resulted in
your appointment.)

The Teapot Dome Precedent

As I am sure you are aware, President Calvin Coolidge appointed Owen J.
Roberts, a Philadelphia attorney at the time, and former U.S. Senator
Atlee Pomerene, then practicing law in Ohio, as special counsels to
investigate and prosecute on behalf of the government any wrongdoing
related to the so-called Teapot Dome inquiry. That investigation related
to the improper dissipation of government assets -- dubious oil leases
to Edward L. Doheny and Harry F. Sinclair.

Several years ago, I had an opportunity to spend several weeks at the
National Archives going through the files of Special Counsels Roberts
and Pomerene. I urge you to send a member of your staff to do the same,
for they are highly revealing as to the aggressive -- yet appropriate --
nature of their investigation and actions.

What you will find is that Roberts and Pomerene, before figuring out
exactly who was to blame and going after them, first sought to protect
the interest of the United States by ending the further dissipation of
the nation's oil reserves to Doheny and Sinclair, and seek restitution.
In brief, they started by taking protective civil measures. Only with
that accomplished did they move on to criminal prosecutions. Why have
you not done the same?

Your investigation also relates to the dissipation -- if not the
irreparable destruction -- of a government asset: Valerie Plame Wilson.
As you no doubt know, the U.S. Government invested a great deal of money
in her special education and training, as well as other aspects of her
covert status. Then, either intentionally, or with gross negligence,
senior Bush administration officials blew Valerie Wilson's cover. (Prior
to the disclosure, her status was not, as some have claimed, an "open
secret": Rather, as you yourself have said, the fact that she was a CIA
asset was not previously well-known outside the intelligence community.)

Yet there is no evidence that you have made any effort whatsoever to
undertake any civil remedies dealing with this either intentional or
grossly careless destruction of a government asset. As acting Attorney
General for this matter, you have even more authority than did Special
Counsels Roberts and Pomerene.

Those who leaked the information about Valerie Wilson breached signed
contracts they had made with the government. These contracts, moreover,
were not to be taken lightly: They enforced profoundly important
obligations to national security, on the part of the very people who
were supposed to be serving that end.

Why are you not enforcing those contracts? Why have you not urged the
president to sanction those who have released national security
information? The president has said he would fire those who committed
crimes -- but breach of such profoundly important contracts, even if it
does not rise to the level of a crime, is surely cause for dismissal, as
well.

You should so urge the President. And if he is not willing to take
appropriate action with those who have dishonored their offices, and
broken their contracts, you ought to go to court and get an injunction
to remove their security clearances.

Again, their agreement with the government was the very understanding
upon which they were (and continue to be) given classified information.
Now that they have breached it, the vital predicate for those clearances
is gone.

The Watergate Precedent

Even more troubling, from an historical point of view, is the fact that
the narrowness of your investigation, which apparently is focusing on
the Intelligence Identities Protection Act (making it a crime to uncover
the covert status of a CIA agent), plays right into the hands of
perpetrators in the Administration.

Indeed, this is exactly the plan that was employed during Watergate by
those who sought to conceal the Nixon Administration's crimes, and keep
criminals in office.

The plan was to keep the investigation focused on the break-in at the
Democratic National Committee headquarters -- and away from the
atmosphere in which such an action was undertaken. Toward this end, I
was directed by superiors to get the Department of Justice to keep its
focus on the break-in, and nothing else.

That was done. And had Congress not undertaken its own investigation
(since it was a Democratically-controlled Congress with a Republican
President) it is very likely that Watergate would have ended with the
conviction of those caught in the bungled burglary and wiretapping
attempt at the Democratic headquarters.

Now, with a Republican-controlled Congress and a Republican President,
you (a Republican appointee) are the last bulwark of protection for the
American people. We must hope you will keep faith with them.

It was well understood at the Nixon White House, and it surely is at the
Bush White House, that government attorneys do not look to prosecute
those for whom they work. We knew that career government lawyers simply
were not going to be looking for crimes at the White House -- not
because they acted with corrupt intent, but simply because it is no
one's instinct to bite the hand that feeds them.

When Archibald Cox was appointed special counsel -- under pressure from
the U.S. Senate as a condition to confirm Attorney General Elliot
Richardson -- he immediately recognized what had occurred. While no
Department of Justice lawyer was found to have engaged in the cover up,
their timidity had facilitated it. Cox was fired because he refused to
be intimidated. His firing became a badge of honor for all those who do
the right thing, regardless of the consequences.

While I have no reason to believe you are easily intimidated, all I can
say is that your investigation, thus far, is falling precisely within
the narrow confines -- the formula procedure -- that was relied upon in
the first phase of the Watergate cover-up by the Nixon administration.

So narrow was your investigation that it appears that you failed to
learn that Bob Woodward had been told of Valerie Wilson's CIA post until
after you had indicted Scooter Libby. While I have no doubt you know
your way around the Southern District of New York, and the Northern
District of Illinois, Washington DC is a very different place.

With all due respect, Mr. Fitzgerald, I believe you are being had. I
believe that you were selected with the expectation that you would
conduct the narrowest of investigations, and it seems you have done just
that.

The leak of Valerie Wilson's status did not occur in a vacuum.
Republicans in Congress do not want to know what truly happened. You are
the last, best hope of the American people in this regard.

I can tell you, as someone who travels about the country, that Americans
-- regardless of their political disposition -- are deeply troubled by
this case. And, increasingly so, by the limits you have apparently
placed on your investigation.

To right-minded Americans, the idea that Administration officials have
betrayed their national security obligations, yet remain in their jobs,
is nothing short of appalling. Beyond politics is patriotism: Patriotic
Americans want to see you not only prosecute those who compromised and
endangered Valerie Plame Wilson, but also force the Administration to
clean house with respect to those who did this, which you can accomplish
through appropriate civil action.

As one who does know something about the way Washington works, I hope
you will actually use the plenary powers you have been granted to
implement what I understood to be the announced policy of the Department
of Justice for which you work -- a zero tolerance policy for leaks.

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