Rove is now claiming two defenses to his outing of Plame. First he claims he didn't give out Plame's name. Second, Rove's counsel has claimed that Rove did not "knowingly" "out" Plame. Of the two defenses, it is likely that the main defense to Rove's actions will be Rove's "lack of knowledge" of Plame's covert status and Rove's "lack of knowledge" of the government's desire to keep her covert status secret. Will playing dumb this way work? Probably not.
There are many ways to identify someone other than by name. And if the court gives the "Ostrich Instruction" (deliberate avoidance of knowledge and actual knowledge are the same thing) to the jury, contrary to what Rove's defenders want us to believe, Rove is in serious trouble with his defense of lack of knowledge.
More in extended.
Yesterday, I made a diary entitled "The Ostrich Instruction as it Applied to the Outing Statute," which was overlooked by most Kos readers perhaps because the title was too cryptic. It has been suggested to me that I repost it under this title which I have done. My apologies if this is not appropriate or if Kos readers didn't want to read it; I am new. But with some hesitation I have done so anyway and I have also tweaked it a bit.
The "outing" statute has three levels of punishment, ten years, five years, and three years. You can read the entire statute here:
http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000421----000-.html
The greater the authorization a person has, to know the covert status of the agent, the greater the punishment.
But under every situation, the leaker has to (1)"identify" the outed agent and also (2) to have knowledge that the agent is a covert agent and (3) that the government is trying to keep the agent's identity covert. Rove, his lawyer, the Republicans, and even the press are spinning the arguments that Rove did not identify Plame when he referred to her as "Wilson's wife" and that Rove's "knowledge" of Plame's covertness and the government's desire to keep her identity covert will be hard to prove. Will playing dumb work? Not likely.
The "I didn't identify her by name" defense has been thoroughly discussed on the internet and I will not belabor this point here. I will say this: the statute uses the word "identity" and not the word "name." People are identified in lineups, as the person being seated at counsel's table, as the person living at a certain address, as a relative (as is the case here) or friend of someone, etc. etc. All that is necessary is that the person be identified with particularity. As for the "I didn't identify her by name" defense, this dog won't hunt.
The defense of "lack of knowledge," however, is more complex and more difficult.
In US v. Ladish Malting Co.,
http://lw.bna.com/lw/19980217/972417.htm
the 7th Circuit had this to say about the proof of the knowledge element of a federal crime:
..........
Courts often say that knowledge may be proved by demonstrating that the defendant was conscious of a substantial chance that some fact [occurred], but averted his eyes for fear of learning more. See United States v. Ramsey, 785 F.2d 184 (7th Cir. 1986); United States v. Giovannetti, 919 F.2d 1223 (7th Cir. 1990), rehearing denied, 928 F.2d 225 (1991). "An ostrich instruction informs the jury that actual knowledge and deliberate avoidance of knowledge are the same thing. When someone knows enough to put him on inquiry, he knows much. If a person with a lurking suspicion goes on as before and avoids further knowledge, this may support an inference that he has deduced the truth and is simply trying to avoid giving the appearance (and incurring the consequences) of knowledge." Ramsey, 785 F.2d at 189. Behaving like an ostrich supports an inference of actual knowledge....
..........
The key language here is that "actual knowledge and deliberate avoidance of knowledge are the same thing."
My conclusion, and this is the take of a civil (not criminal) trial lawyer with 27 years of court experience -- methinks Rove has a problem under the "outing" statute, far more grave than the spinners want us to believe.