Attorney General Eric Holder Jr. says he is confident two U.S. attorneys will "doggedly follow the facts" as they investigate the possible unauthorized disclosure of classified national security information.
But a criminal prosecution--assuming there was a crime--is far from certain. And some critics, calling for a special counsel, said they're concerned about a potential conflict of interest within the executive branch.
Holder on Friday assigned Ronald Machen Jr., the U.S. attorney for the District of Columbia, and U.S. Attorney Rod Rosenstein of Maryland, to lead criminal investigations following press reports about President Barack Obama’s decision-making about the so-called “kill list” and the government’s alleged involvement in using a computer virus to attack Iranian nuclear systems. Holder has a chance Tuesday to defend the leak probe when he appears at a Senate Judiciary Committee oversight hearing.
“These two highly-respected and experienced prosecutors will be directing separate investigations currently being conducted by the FBI,” Holder said in the statement, which did not identify any particular leak. “I have every confidence in their abilities to doggedly follow the facts and the evidence in the pursuit of justice wherever it leads.”
The U.S. Attorney Offices for the District and for Maryland declined to name the prosecutors who will be working with Machen and Rosenstein, who has served as Maryland’s U.S. attorney since 2005. Machen and Rosenstein have not spoken publicly about their new high-profile assignments.
Machen will work with a team from the office’s National Security Section, according to Matthew Jones, counsel to Machen. (Obama appointed Machen to his post as the top federal prosecutor in Washington.)
The Senate Judiciary Chairman, Patrick Leahy (D-Vt.), on Friday called Machen and Rosenstein “strong, capable, independent prosecutors.”
Jesselyn Radack, the national security and human rights director at the Government Accountability Project, which represents whistleblowers, said that “if Holder were really serious” about a leak investigation he would designate a special counsel with no ties to the current Justice Department.
“DOJ doesn’t have a good history of going after their own,” Radack said.
Steven Aftergood, a senior analyst at the Federation of American Scientists who directs the Project on Government Secrecy, said no matter who leads the investigation, assuaging the concerns of members of Congress about leaks may not be possible.
“The likelihood of producing a culprit at the end of this process is small,” Aftergood said. “Not necessarily because of any lack of desire. But because it’s a difficult undertaking.”
Between 2005 and 2009, the FBI received more than 150 referrals about the alleged leak of classified information. But agents opened a limited number of investigations, based on the adequacy of the information received, according to a letter Assistant Attorney General Ronald Weich sent to Congress in 2010.
“The most typical information gap is a failure to identify all those with authorized access to the information, which is the necessary starting point for any leak investigation,” wrote Weich, the head of the DOJ legislative affairs office. None of the 14 suspects identified between 2005 and 2009 time period, Weich said, were prosecuted.
A former Bush administration lawyer who worked on leak investigations said White House national security lawyers and policy officials can expect a potentially “disruptive” process as the subpoena process begins, triggering possible negotiations over document retention and privilege.
Last week, Sen. John McCain (R-Ariz.) called for a special counsel to lead any leak investigation. McCain on Sunday said in an interview on CNN’s “State of the Union” that “it’s very clear that this information had to come from this administration. It couldn’t have come from anywhere else. This needs a special counsel—someone who is highly independent of the Justice Department.”
Obama last week assailed critics who have suggested White House officials leaked classified information for political gain.
“Since I’ve been in office, my attitude has been zero tolerance for these kinds of leaks and speculation,” Obama told reporters Friday. “Now we have mechanisms in place where, if we can root out folks who have leaked, they will suffer consequences.”
Obama also said “the notion that my White House would purposefully release classified national security information is offensive.”