By SCOTT SHEPARD
Cox News Service
WASHINGTON — As Congress tip-toes into the controversy over the leak of CIA agent Valerie Plame's identity, some lawmakers and analysts worry that the criminal investigation of the matter could be undermined by any congressional grant of immunity from prosecution, as has happened in the past in politically charged investigations.
The cases of key Iran-contra figures Oliver North and John Poindexter underscore their worries: both were prosecuted and convicted by independent counsel Lawrence Walsh, but their convictions were overturned because Congress had granted them immunity in order to compel them to testify in the congressional investigation of the Reagan administration's arms-for-hostages deals.
Walsh, in his final report on the White House brokering arms deals with Iranian terrorists to free American hostages and diverting arms sales profits to anti-government guerrillas in Nicaragua, complained that Congress had "infinitely complicated" his efforts to prosecute North and Poindexter or to force them to testify about the activities of higher-ups in the Reagan administration.
"Immunity is ordinarily given by a prosecutor to a witness who will incriminate someone more important than himself," Walsh wrote. "Congress gave immunity to North and Poindexter, who incriminated only themselves and who largely exculpated those responsible for the initiation, supervision and support of their activities."
Walsh concluded with a word of caution to future lawmakers: "Congress should be aware of the fact that future immunity grants, at least in such highly publicized cases, will likely rule out criminal prosecution."
Consequently, because recent disclosures that senior White House aides Karl Rove and Lewis "Scooter" Libby were sources for Time magazine reports about Plame, some lawmakers and analysts are reprising the warnings of Walsh to the congressional intelligence committee chairmen as they plan hearings on the leak.
Sen. Frank Lautenberg, D-N.J., for example, is drafting letters of caution to the chairmen, Republican Sen. Pat Roberts of Kansas and Republican Rep. Pete Hoekstra of Michigan.
"The (congressional) hearings should not be used as a ruse to provide White House officials with immunity," Lautenberg said in a statement late Friday.
Roberts and Hoekstra could not be reached for comment, and their spokesmen at their committees did not respond immediately to requests for details about the upcoming hearings.
Tom Blanton, president of the National Security Archive and a leading expert on the Iran-contra scandal, noted some differences in the situation facing Roberts and Hoekstra and the one facing the co-chairs of the Iran-contra investigation, Sen. Daniel Inouye, D-Hawaii, and then-Rep. Lee Hamilton, D-Ind., most notably the timing of the criminal investigations.
Walsh was just getting his investigation started when Congress granted immunity to North and Poindexter, and Congress was anxious to discover the facts of the still unfolding events of the Iran-contra affair, Blanton noted.
On the other hand, Patrick Fitzgerald, the independent counsel appointed to investigate the leaking of Plame's name, has been at work for two years already "and, hopefully, has some idea of what happened and whether any crimes have been committed," he added.
Still, "you always have to be careful with granting immunity to witnesses," Blanton said.
Similarly, David Garrow, noted author and Emory University law professor, agreed that any prosecution arising from the special investigation could be undermined "if the Congress did immunize people." But he questioned whether the planners of the upcoming congressional hearings "are that Machiavellian."
After much prodding by former CIA officials and Democratic lawmakers, Roberts and Hoekstra said last week that their panels would hold hearings on issues raised by the public disclosure of Plame's identity, reportedly by the White House in political vendetta for her husband's critique of pre-war intelligence about Iraqi weapons of mass destruction.
It is unclear, however, when those hearings will be held and what exactly they will examine.
Hoekstra, in a mid-week speech at the conservative Heritage Foundation, said his hearings would focus on toughening federal laws barring the unauthorized disclosure of classified information.
But he declined to comment on the extent to which his hearings would examine the leaking of Plame's name to reporters after her husband, ambassador Joseph Wilson, questioned some of the claims made by the White House about Iraq's nuclear capabilities prior to the war.
In addition, early last week, Roberts suggested to Time magazine and CNN that his committee would look into the leak of Plame's identity as part of an examination of how the CIA determines which officials at the agency get "covert" status. But by mid-week, Roberts was quoted by other news organizations as saying he would limit the hearings to the issue of "covert" status.
"It's silly that someone would assume that we should take the role of a special prosecutor," he told a home state newspaper, the Wichita Eagle.
But his spokeswoman, Sarah Little, said the Senate hearings would look into the two-year probe by Fitzgerald, her comments coming after editorial columns in the Wall Street Journal labeled Fitzgerald a "loose cannon" and an "unguided missile."
Scott Shepard's e-mail address is sshepard(at)coxnews.com.