Chances of Finding CIA Leaker

This is a partial transcript of "Special Report with Brit Hume", Feb. 10, that has been edited for clarity.

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BRIT HUME, HOST: So what chance does that leak investigation Jim Angle reported earlier have of: A, finding there was a violation of the law, B, finding the guilty or guilty parties, and C, successfully prosecuting the case.

For answers, we turn to a man who spent time as the top prosecutor in the very courthouse where this grand jury investigation is occurring. He is Joseph DiGenova, now a private lawyer, formerly U.S. attorney for the District of Columbia.

Joe, welcome. Nice to see you.

JOE DIGENOVA, FORMER U.S. ATTORNEY: Nice to be here, Brit.

HUME: What does the prosecution have to show in order to bring a case here?

DIGENOVA: Pretty tough statute. They're going to have to show that the person who gave this information to a reporter, A, got it in their official capacity. In other words, they have had a clearance to receive it, they got it from somebody who had a clearance and gave it to them, and that the agency was trying to keep this person's identity -- secret identity a secret.

All of those things have to be done. and it's going to be really tough for the government to prove that.

HUME: So, I'm a White House press aide or some other official who might talk to columnist Bob Novak (search). And I've heard sort of around the administration that Joe Wilson (search), whom we're mad at for one reason or another's wife is CIA.

DIGENOVA: Right.

HUME: Is that enough?

DIGENOVA: No. In fact, that is absolutely not enough. That is probably what happened here. And the reason that's not enough is whoever heard that from around the White House, a lot of people knew that she worked at the CIA

HUME: A lot of people in town, outside the government, too?

DIGENOVA: Yes. People outside the government knew she worked at the agency. They did not know, probably, that she worked in WMD, weapons of mass destruction, and was doing undercover work.

But in order for it to be a crime, you must know that's what she did, that she was undercover, that the agency was trying to keep that a secret. But you must have received that information in your official capacity with a security clearance. That doesn't cover practically anybody in the White House.

HUME: All right. Now, the other question then, is what about -- I mean, if everybody goes up there and says wasn't me. I didn't do it. Wasn't me. Then what is the prosecutor going to be able to do?

DIGENOVA: Well, at that -- actually...

HUME: The White House people. The people on the government's side.

DIGENOVA: All of the people who go up there are now being asked questions and they are being asked to sign these forms that allow them to waive any time of confidentiality they might have with a journalist.

And some of them are signing it. And some of them are not. The reason the prosecutors are doing that is not because they care about the waiver. They're trying to show a court later, they've done everything they can to find out who this person was, this journalist, without actually calling the journalist as a witness.

So that when they finally serve a subpoena on Bob Novak for his testimony, they're going to have to show the court that they exhausted every other remedy to try and find out who the leaker was.

HUME: Does it matter in that regards whether the potential witness or the government employee signs a waiver or not? Or they just need it to make a showing of effort?

DIGENOVA: No. It doesn't matter at all. They just need to show that they tried every way they could to find out who the source was before they went to the journalist.

HUME: Now I suppose it would matter to some extent if you got a journalist in there and the journalist is asked did you have a conversation with so-and-so? And the journalist said I'm not telling you; this is a source issue. Well, he signed a waiver. Does that -- does that place the journalist in a different legal position?

DIGENOVA: It could. It is possible. But the journalist also have their own standards. And the fact is, journalists may not want to waive that privilege under any set of circumstances in order to demonstrate to other people that they will never, ever give up their sources.

HUME: Now if in fact, journalists -- in fact, nobody from the administration's side, the White House or any other government official, who may be a subject to this investigation owns up to this, and journalists are called and refuse to testify about their sources.

Is that the end of this or is there a distinct possibility that the clamps can be applied by virtue of a finding of contempt of court? Or where is that likely to go?

DIGENOVA: Well, the prosecutors, if the journalists refuse to reveal their sources, could go to a court and ask for a contempt citation. Most journalists are simply going to refuse to obey that orders and would go to prison for whatever period of time the court deems it appropriate until they tell whatever they know.

Whether or not the Justice Department would do that in a case like this is unlikely. Because first of all, before you get to that really pretty rough treatment of journalists under the First Amendment, you've got to show that it seems to me that there was a crime committed here before a judge is going to allow you to do that.

And I don't think the Justice Department is ever going to be able to show that a crime was committed here.

HUME: You mentioned earlier when we were talking about whether there was a crime committed, you have to have found it out in your official capacity from somebody who knew about it in their official capacity.

DIGENOVA: Right.

HUME: Is there also an intend ... issue here that has to do with...

DIGENOVA: It can't be an accident. You have to knowingly and intentionally want to disclose the identity of that person, which identity you obtained with a security clearance from someone with a security clearance, knowing that the agency was trying to keep her identity a secret.

I don't believe the department will ever be able to meet that standard.

HUME: You're a prosecutor. They brought in a prosecutor from Chicago, rather than having anybody from the immediate Justice Department team or the local U.S. district attorney, such as you were, prosecute this case.

You are here in Washington. Now it's in the press now, now this investigation is going on. What is your attitude likely to be? Do you want to nail this particular coonskin to the wall? Or are you likely to say, look, I've taken this as far as I can, sir, and I can't make a case; see you?

DIGENOVA: Well, I think a professional prosecutor would do everything within their power to try and find out whether a crime would been committed and who did it. Whether or not you want to start locking up journalists before you know whether or not a crime has even been committed, seems to me to be a pretty bad exercise of judgment.

HUME: It would almost be easier if the person who did this said they did it and explain that under the circumstances which would show they really didn't have the knowledge in a way that would make it a crime, wouldn't it?

DIGENOVA: That may very -- absolutely. And that may very well be where this ends up. With not someone being prosecuted, but someone quitting after admitting, when the wagon gets close around them and the prosecutor can't figure out who it was. Someone may, in fact, fess up and say I did this and resign. I think that is the most likely outcome here. Certainly not a criminal charge.

HUME: All right, Joe DiGenova, always good to have you Joe. Nice to see you, thanks.

DIGENOVA: Nice to see you Brit.

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