Media misrepresented 2004 letter clarifying Fitzgerald's authority to investigate perjury, obstruction of justice in CIA leak case

››› ››› ANDREW SEIFTER

Citing a February 6, 2004, letter from then-acting Attorney General James B. Comey, recent news stories have falsely reported that special prosecutor Patrick J. Fitzgerald asked for and received "expand[ed]" authority to investigate crimes, such as perjury and obstruction of justice, that may have arisen during the investigation into whether senior White House officials illegally outed CIA agent Valerie Plame. In fact, Comey's letter did not grant new authority to Fitzgerald; it provided clarification that Fitzgerald had the authority to pursue those crimes from the time he was initially appointed to investigate the case on December 30, 2003. The distinction is critical in light of the concerted effort on the part of White House allies to minimize the impact of any charges that are brought against Bush administration officials by depicting Fitzgerald as overzealous and by falsely suggesting that he might be exceeding his original mandate. His investigative and prosecutorial authority is, and always has been, plenary, as the Comey letter made clear.

In an October 22 article, Los Angeles Times staff writers Tom Hamburger and Richard B. Schmitt reported that the letter permitted Fitzgerald "to expand his investigation to other possible federal crimes, 'such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.' " Washington Post staff writer Walter Pincus similarly reported on October 23 that the letter gave Fitzgerald "authority from the Justice Department to expand his inquiry to include any criminal attempts to interfere with his probe," and again wrote on October 24 that Fitzgerald "asked for and received expanded authority from Justice to investigate crimes associated with his inquiry including perjury and obstruction of justice." Also on October 24, a Wall Street Journal editorial stated that "in February 2004 he [Fitzgerald] asked for permission for much broader investigative authority," and United Press International editor Martin Walker wrote that "Fitzgerald last year sought and obtained from the Justice Department permission to widen his investigation from the leak itself to the possibility of cover-ups, perjury and obstruction of justice by witnesses."

But Comey's letter didn't permit Fitzgerald to "widen" or "expand" his inquiry. Rather, it merely "clarif[ied]" -- at Fitzgerald's "request" -- that Fitzgerald already had the authority "to investigate and prosecute ... federal crimes committed in the course of, and with intent to interfere with, your investigation":

At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue.

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