United States SenateThe President
October 9, 2003
The White House
Washington, DC 20500
Dear Mr. President:
We write to express our continuing concerns regarding the manner in which your Administration is conducting the investigation into the apparently criminal leaking of a covert CIA operative's identity. You have personally pledged the White House's full cooperation in this investigation and you have stated your desire to see any culprits identified and prosecuted, but the Administration's actions are inconsistent with your words.
Already, just 14 days into this investigation, there have been at least five serious missteps.
First, although the Department of Justice commenced its investigation on Friday, September 26, the Justice Department did not ask the White House to order employees to preserve all relevant evidence until Monday, September 29. Every former prosecutor with whom we have spoken has said that the first step in such an investigation would be to ensure all potentially relevant evidence is preserved, yet the Justice Department waited four days before making a formal request for such documents.
Second, when the Justice Department finally asked the White House to order employees to preserve documents, White House Counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning. That request for delay was granted. Again, every former prosecutor with whom we have spoken has said that such a delay is a significant departure from standard practice.
Third, instead of immediately seeking the preservation of evidence at the two other Executive Branch departments from which the leak might have originated, i.e., State and Defense, such a request was not made until Thursday, October 1. Perhaps even more troubling, the request to State and Defense Department employees to preserve evidence was telegraphed in advance not only by the request to White House employees earlier in the week, but also by the October 1st Wall Street Journal report that such a request was "forthcoming" from the Justice Department. It is, of course, extremely unusual to tip off potential witnesses in this manner that a preservation request is forthcoming.
Fourth, on October 7, White House spokesperson Scott McClellan stated that he had personally determined three White House officials, Karl Rove, Lewis Libby and Elliot Abrams, had not disclosed classified information. According to press reports, Mr. McClellan said, "I've spoken with each of them individually. They were not involved in leaking classified information, nor did they condone it." Clearly, a media spokesperson does not have the legal expertise to be questioning possible suspects or evaluating or reaching conclusions about the legality of their conduct. In addition, by making this statement, the White House has now put the Justice Department in the position of having to determine not only what happened, but also whether to contradict the publicly stated position of the White House.
Fifth, and perhaps most importantly, the investigation continues to be directly overseen by Attorney General Ashcroft who has well-documented conflicts of interest in any investigation of the White House. Mr. Ashcroft's personal relationship and political alliance with you, his close professional relationships with Karl Rove and Mr. Gonzales, and his seat on the National Security Council all tie him so tightly to this White House that the results may not be trusted by the American people. Even if the case is being handled in the first instance by professional career prosecutors, the integrity of the inquiry may be called into question if individuals with a vested interest in protecting the White House are still involved in any matter related to the investigation.
We are at risk of seeing this investigation so compromised that those responsible for this national security breach will never be identified and prosecuted. Public confidence in the integrity of this investigation would be substantially bolstered by the appointment of a special counsel. The criteria in the Justice Department regulations that created the authority to appoint a Special Counsel have been met in the current case. Namely, there is a criminal investigation that presents a conflict of interest for the Justice Department, and it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter. In the meantime, we urge you to ask Attorney General Ashcroft to recuse himself from this investigation and do everything within your power to ensure the remainder of this investigation is conducted in a way that engenders public confidence.
Joseph R. Biden
Charles E. Schumer