Looks like our Valerie Plame theory--that Ashcroft recused himself so that fewer people will scream whitewash when the Justice Department announces it can't prove a crime and no one gets indicted --is getting more play.

The Justice Department investigation into the leak of a CIA agent's identity could conclude that administration officials disclosed the woman's name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week.

"It could be embarrassing but not illegal," said Victoria Toensing, who was chief counsel of the Senate Select Committee on Intelligence when Congress passed the law protecting the identities of undercover agents.

Actually, we don't think the Justice Department will claim that the White House officials didn't know Plame was an undercover agent. We think the excuse will be that the officials inadvertently mentioned her name and undercover capacity during a conversation about something else and therefore it was not an "intentional" disclosure.

Here is the law at issue: The Intelligence Protection Act (50 U.S.C. Sec. 421). Different sections of the act provide for penalties ranging from three years to ten years. There are three ways to violate the law:

LA Weekly ran a long interview last October with Valerie Plame's husband, former Ambassador Joseph Wilson, called Unfair Game. It has good background on the events leading to the Novak leak and the subsequent investigation. Here's a piece:

When Novak called you before his column ran, did you then know that her identity was going to be revealed?

I assumed that the CIA would be able to advise him that he shouldn't publish her name, which they obviously tried to do. It was when it was first published that I realized they had been unsuccessful in doing that.

What was your reaction then?

My initial reaction was probably unprintable. My second thought was, "Why would somebody leak the name? What is the rational goal of doing that?" I concluded that it was probably to discourage others from coming forward. It was the White House's way of telling others, "If you do a Wilson on us, we'll do this to your wife and your family." It's only recently that a number of [White House sources] who have leaked to the Washington Post have said that it was pure revenge and spite.

Subsequent to the publication of Novak's article there was a second wave of the White House pushing the story, calling the press and saying, "The real story here is Wilson and his wife, it's not the 16 words." I got a call from a journalist who said, "I just got off the phone with Karl Rove, and he said to me, 'Wilson's wife is fair game.'" So even a week after the Novak story, Karl Rove was still thinking it was okay to trash my wife. It was only after I went on NBC and subsequently the Today Show and said this might be illegal that those phone calls stopped.

You've suggested that Rove was behind the original leak.

Attorney General John Ashcroft has recused himself from the Valerie Plame investigation. The investigation concerns leaks by White House officials of the identity of CIA undercover operative Valerie Plame. Background on the investigation is available here.

It's important to note that the Justice Department will still be in charge of the investigation. The lead prosecutor will be U.S. Attorney Patrick J. Fitzgerald in Chicago. He will report to Deputy Attorney General James Comey.

No reason was given for Ashcroft's recusal--only that it is to avoid the appearance of impropriety. While Comey promises a full and independent investigation, we'll hold off on the celebration until we see if that indeed is what we get.

We think the investigators already know who the culprit is. It may be someone who is close to Ashcroft. A cynic would say that by having Ashcroft recuse himself, the Administration can try and claim he had nothing to do with any future determination not to bring criminal charges against the official on the grounds that the Justice Department doesn't believe it can prove the case beyond a reasonable doubt.

So, which of the White House officials are Ashcroft buddies?

Update: Our prior thoughts on James Comey and his appointment to replace former Deputy Attorney General Larry Thompson are here.

Update: To our surprise, Joe Lieberman makes a good comment:

A former prosecutor outside the Justice Department should have been chosen to lead an independent investigation, the Connecticut senator said. "The public will not likely trust the results of an investigation headed by a political appointee, especially when the special counsel is constrained by Department of Justice regulations that severely curtail the prosecutor's autonomy," Lieberman said.

Update: Here is the text of Comey's remarks and the q and a session following the announcement.

The Government's investigation into who leaked the identity of CIA undercover agent Valerie Plame may be taking a step forward. A fourth prosecutor has been assigned to the case and the FBI has said administration officials may be called to a grand jury.

On Monday, the Senate minority leader and the ranking Democrat on the Armed Services Committee sent a letter to Attorney General John D. Ashcroft demanding more information about the probe. "We request that you provide us with an overall status of the investigation, including the number of people the Justice Department has interviewed, the number of briefings you have received, the general types of information you are briefed on, what conditions you have placed on the scope of these briefings to ensure the independence of this investigation, and whether you have discussed this case with senior administration officials outside the Justice Department," wrote the senators, Thomas A. Daschle (S.D.) and Carl M. Levin (Mich.).

The senators said that it is an apparent conflict of interest for Ashcroft to be briefed on the subject, and again requested a special counsel to prosecute the case, which Ashcroft has so far opposed.

There's lots more detail in this article, so read the whole thing. Our Valerie Plame coverage is accessible here.

Melanie Sloan, writing for Buzzflash, wants to know Whatever Happened to the Plame Investigation? We haven't heard an official word about it since Sept. 29th.

Why has the investigation stalled? Is it because the Department of Justice, just as suspected by the Democrats all along, isn't serious about prosecuting the leaker? Is it because George Bush has swept the matter under the carpet? Where are the Congressional hearings that were so common during the Clinton administration? Can anyone seriously doubt if the same events had transpired during the Clinton years there would have been day after day, and month after month of hearings with Congressional leaders clamoring for an independent counsel, with the result that one would have been appointed?

Good questions, all. The inquiry does seem to have been swept under the carpet.

No less an authority than Sam Dash, chief counsel of the Senate Watergate Committee in 1973-74 and a Georgetown University Law Professor, says the leak of CIA operative Valerie Plame's identity may violate the Patriot Act. Dash says the leak constitutes an act of domestic terrorism as defined in the legislation. He also questions whether the Justice Department will conduct the same kind of investigation it does in other suspected domestic terrorism cases. Here's just a portion of his article. We recommend you read the whole thing.

If, as now seems likely, top White House aides leaked the identity of an American undercover agent, they may have committed an act of domestic terrorism as defined by the dragnet language of the Patriot Act their boss wanted so much to help him catch terrorists.

The FBI has conducted over 3 dozen interviews of White House officials and officials at other agencies in connection with its investigation into the leak of CIA operative Valerie Plame's identity. Among those interviewed: Karl Rove and Scott McClellan.

The Defense and State Departments and CIA are part of the probe.

The focus, however, remains on the White House, two law enforcement officials said on condition of anonymity. While the initial, informal interviews have yielded no major breaks, the FBI is satisfied that the dozen agents assigned to the probe are making progress and have not encountered any stalling tactics, the officials said today. So far, no grand jury subpoenas have been issued, they said.

Eric Alterman's new Nation column, Abrams and Novak and Rove? Oh My!, is out:

In addition to suggesting Elliott Abrams was the leaker, columnist Eric Alterman writes the following about the Joseph Wilson affair: "Part of the reason (it was ignored) is the insider establishment's deep-seated unwillingness to face up to the Nixonian depths of this Administration's moral depravity." "Bob Woodward plays ball...he doesn't bother weighing any competing claims or seeking to determine whether anything he is spoon-fed might actually be true." "The second great fiction of this story is the notion that Robert Novak is a 'journalist.'"

Also in the new Nation:

After purchasing John Ashcroft and George Tenet's social security numbers and home addresses on the Internet, author Jamie Court shows how the Administration is failing to prevent identity theft.

Writer Jamie Pietras explains how states are using financial aid laws to discourage peaceful student protests.

In a web exclusive, Washington editor David Corn learns of a National Security Council staffer who might have played a role in the Joseph Wilson leak scandal. Read why he's decided not to leak this person's identity in his "Capital Games" weblog.

The New York Times today reports that Ashcroft's own prosecutors are criticizing him for not appointing special counsel in the CIA leak probe relating to the disclosure of CIA operative Valerie Plame's identity.

Several senior criminal prosecutors at the Justice Department and top F.B.I. officials have privately criticized Attorney General John Ashcroft for failing to recuse himself or appoint a special prosecutor to investigate the leak of a C.I.A. operative's identity. The criticism reflects the first sign of dissension in the department and the F.B.I. as the inquiry nears a critical phase. The attorney general must decide whether to convene a grand jury, which could compel White House officials to testify.

The criminal justice officials, who spoke on the condition that they not be identified, represent a cross section of experienced criminal prosecutors and include political supporters of Mr. Ashcroft at the department's headquarters here and at United States attorneys' offices around the country. The officials said they feared Mr. Ashcroft could be damaged by continuing accusations that as an attorney general with a long career in Republican partisan politics, he could not credibly lead a criminal investigation that centered on the aides to a Republican president.

[link via Matt Yglesias at Tapped , who also comments about the difference between an independent counsel and a special counsel.]

While we're on this topic, check out the compilation of sources and articles on the Plame-Wilson-CIA leaks story over at Alex Parker's The Parks Department. And Tom McGuire's recommended additions to Alex's list.

Update: CBS News provides this analysis of Ashcroft, the leaks probe and his potential conflicts of interest.

According to some of those interviewed by the FBI in connection with the leaks probe of the disclosure of the identity of CIA operative Valerie Plame, the focus is now June, the month before Robert Novak wrote his now infamous column:

In their interviews, FBI agents are asking questions about events going back to at least early June, the sources said. That indicates investigators are examining not just who passed the information to Novak and other reporters but also how Plame's name may have first become linked with Wilson and his mission, who did it and how the information made its way around the government.

...Investigators are trying to establish the chain of events leading to the leak because, for a successful prosecution under the law prohibiting unauthorized disclosure of a covert U.S. officer's name, the disclosure must have been intentional, the accused must have known the person was a covert officer and the identity must not have been disclosed earlier.

The first column to mention Joseph Wilson's mission to Niger (without mentioning him by name) was the May 6 Nicholas Kristof column in the New York Times.

Fox News is reporting that some of the e-mails turned over by White House officials to the Justice Department in the CIA leak probe mention former Ambassador Joseph Wilson and his wife, former CIA operative Valerie Plame.

We can't find a news article confirming this yet, so stay tuned.

Update: As of Saturday, 1:00 pm, we've seen nothing to confirm the Fox broadcast.

The FBI is doubling the number of agents assigned to the Justice Department probe into alleged leaks by White House officials of the identity of CIA operative Valerie Plame.

As Democrats accused the White House of trying to improperly influence an inquiry into a leak, officials said on Thursday that the F.B.I. was doubling the number of investigators on the politically charged case.

The Federal Bureau of Investigation plans to use about 12 agents and other personnel, twice the number first planned, to try to find the person who leaked the identity of an undercover C.I.A. officer, the officials said.

It can quadruple them and it won't solve the problem. Bush and McClellan's remarks last week claiming that Rove, Abrams and Libby were not involved illustrate the need for special counsel. Four senators, in a letter written to Bush yesterday,

...pointed to the White House statement about the aides as one of several serious missteps. Mr. McClellan did not have the legal expertise to question possible suspects, said the letter from the Senate Democratic leader, Tom Daschle of South Dakota, and Senators Joseph R. Biden of Delaware, Carl Levin of Michigan and Charles E. Schumer of New York.

"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," they said.

Here's more on the Senators' letter to Bush.

Former federal prosecutor James Orenstein today joins the growing list of those calling for the appointment of special counsel.