Why Bush Needs a Lawyer

Recently, the White House acknowledged that President Bush is talking with, and considering hiring, a non-government attorney, James E. Sharp. Sharp is being consulted, and may be retained, regarding the current grand jury investigation of the leak revealing the identity of Valerie Plame as a CIA covert operative.

(Plame is the wife of Bush critic and former ambassador Joe Wilson; I discussed the leak itself in a prior column, and then discussed further developments in the investigation in a follow-up column.)

This action by Bush is a rather stunning and extraordinary development. The President of the United States is potentially hiring a private criminal defense lawyer. Unsurprisingly, the White House is doing all it can to bury the story, providing precious little detail or context for the President's action.

According to the Los Angeles Times, Bush explained his action by saying, "This is a criminal matter. It's a serious matter," but he gave no further specifics. White House officials, too, would not say exactly what prompted Bush to seek the outside advice, or whether he had been asked to appear before the grand jury.

Nonetheless, Bush's action, in itself, says a great deal. In this column, I will analyze what its implications may be.

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)

Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style -- not D.C. -- style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of who are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing before any grand jury to reveal their sources. So this issue is headed toward a showdown. And under existing law, a journalist cannot refuse to provide information to a grand jury.

Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

There is, of course, one totally benign way to view the situation. "It is hard for me to imagine that Pat Fitzgerald is going to be going aggressively after the president," one Washington lawyer told the Los Angeles Times. "My guess is that he feels a need to conduct an interview because he needs to be in a position to say, 'I have done everything that could be done.'" The lawyer added, "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized."

But from what I have learned from those who have been quizzed by the Fitzgerald investigators it seems unlikely that they are interviewing the President merely as a matter of completeness, or in order to be able to defend their actions in front of the public. Asking a President to testify -- or even be interviewed -- remains a serious, sensitive and rare occasion. It is not done lightly. Doing so raises separation of powers concerns that continue to worry many.