I am reposting these diaries (
one and
two ), because with the recent revelations regarding Karl Rove I believe it is important that this information is renewed for the benefit of dKos folks coming to this case only recently. The following diaries present a legal document that was commissioned by Joseph Wilson to analyze the possible avenues of criminal prosecution for the Valerie Plame leakers.
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The following is the transcribed version of Josh Marshall's Plame Memo.
The original document can be found here and Josh's description can be found here.
Memorandum/Confidential
Re: Criminal Liability in Plame Case
March 18, 2004
I) Assumed Facts:
President Bush's chief political adviser, Karl Rove, told the FBI in an interview last October that he circulated and discussed damaging information regarding CIA operative Valerie Plame with others in the White House, outside political consultants, and journalists, according to a government official and an attorney familiar with the ongoing special counsel's investigation of the matter.1
Rove also adamantly insisted to the FBI that he was not the administration official who leaked the information that Plame was a covert CIA operative to conservative columnist Robert Novak last July. Rather, Rove insisted, he had only circulated information about Plame after it had appeared in Novak's column. He also told the FBI, the same sources said, that circulating the information was a legitimate means to counter what he claimed was politically motivated criticism of the Bush administration by Plame's husband, former Ambassador Joseph Wilson.2
II) Applicable Law: The Intelligence Identities Protection Act of 1982
A) The Crime and the Penalties: On June 23, 1982, President Reagan signed into law the Identities Protection Act of 1982 (the "Act"), making it a federal crime to disclose the identities of United States foreign intelligence operatives. The Act identifies three types of offenses relating to the disclosure of the identity of a "covert agent."3 First, disclosure of the identity of a covert agent by a person with "authorized access to classified information that identifies" the agent is punishable by fine and/or ten years in prison.4 Second, disclosure of the identity of a covert agent by a person with "authorized access to classified information" but who is not authorized to know the identity of the agent is punishable by fine and/or five years in prison.5 Third, regardless of classification level, disclosure of the identity of an agent by "persons in a course or pattern of activities intended to identify and expose covert agents" is punishable by find and/or three years in prison.6
B) Statutory Emphasis on Punishing High Level Government Insiders: Subsections (a) and (b) of Section 421 are nearly identical, and differ from subsection (c), in that both define the offense with respect to persons who have had "authorized access to classified information" - high level government insiders. Because senior federal officials have assumed a relationship of trust with the government by agreeing not to reveal classified information, their release of classified information is unprotected by the first amendment. Subsections (a) and (b) distinguish between insiders who have had access to classified information identifying a covert agent and insiders who learn the identity as a result of having had general access to classified information, but the distinction is immaterial to the scope of protection accorded expression. The Act is designed to punish any government insider who divulges any properly classified information.7
C) Prior Disclosure as a Defense: Section 422 of the Act states a defense to the crime of revealing the identity of an agent occurs when "the United States had publicly acknowledged or revealed the intelligence relationship" of the United States and the agent.8
More generally, once information escapes into the public domain, the government is often viewed by courts as effectively losing control over its dissemination.9 Indeed, the Supreme Court has held that the first amendment prohibits a restriction on publication of classified national security information, except when direct, immediate, and irreparable damage to the nation will follow.10
However, there is a critical distinction made in federal jurisprudence between the conduct of government insiders and outsiders (usually journalists). Simply put, outsiders may usually republish classified information in the public domain, government insiders may not. The United States Court of Appeals for the Fourth Circuit explained the need to prohibit government insiders from reconfirming classified information already in the public domain in the case of Alfred A. Knopf, Inc. v. Colby. The court reasoned that:
"A public official in a confidential relationship surely may not leak information in violation of the confidence reposed in him and use the resulting publication as legitimating his own subsequent open and public disclosure of the same information...security of all official secrets would break down if speculative and unattributed reports were held to have removed all of their protection from them."11
III) The Law Applied to Facts in the Case:
Ms. Plame satisfies the definition of "covert agent" under the statute, since she was "a present...officer or employee of an intelligence agency."12 Additionally, her identity was "classified information."13 and Ms. Plame has "within the last five years served outside the United States."14
In his official position, Mr. Rove has access to classified information, but we do not know whether his classification level included the identities of C.I.A. agents. Depending on his classification level, Rove violated either 50 U.S.C. $ 421(a) or 50 U.S.C. $ 421(b) when he circulated damaging information regarding covert agent Plame. Because Rove told multiple reporters and political consultants of the identity of Ms. Plame, his conduct might also constitute a "course or pattern of activities" under 50 U.S.C. $ 421(c).
Because Section 422 of the Code states the only affirmative defense available for the crime of revealing the identity of an agent occurs when "the United States had publicly acknowledged or revealed the intelligence relationship" of the agent, Rove's assertion that he only revealed information as to Ms. Plame's identity after Novak's column ran is not a defense to the crime of disclosing the identity of an agent. It does not matter that Rove denied making the original leak. As a senior federal official who entered a relationship of trust with the government by agreeing not to reveal classified information, Rove committed a crime by repeating the original leak to outside political consultants and journalists before the CIA or the White House officially revealed the intelligence relationship in question.
Additional Thoughts:
If he made any misrepresentation to investigators in his October interview, Rove could, like Martha Stewart, be prosecuted on obstruction of justice charges. John Dean also makes a persuasive argument that Rove is likely guilty of violating federal conspiracy and fraud statutes in the Plame case.15 However, Rove's violation of the Intelligence Identities Protection Act is an easier crime for the public and the media to understand.16 It is hard to believe that a prosecutor would not believe there was a public policy imperative that required prosecution on the assumed facts above. This imperative was captured by President George H. W. Bush:
"I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious of traitors."17
Footnotes:
1 Murray S. Wass, Plugging Leaks: More details emerge on the Plame investigation, The American Prospect Online available at link.
2 Id.
3 50 U.S.C $$421-26(2004).
4 50 U.S.C $421(a).
5 50 U.S.C $421(b).
6 50 U.S.C $421(c).
7 Susan D. Charles, The Constitutionality of the Intelligence Identities Protection Act, 83 Colum. L. Rev 727,748(1983).
8 50 U.S.C $422(a).
9 See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469(1975)(statute prohibiting publication or other disclosure of rape victim's name held invalid as applied to name obtained by reporter from indictments open to public scrutiny; information was obtained lawfully); Oklahoma Publishing Co. v. District Court, 430 U.S. 308(1977)(invalidating pretrial order that prohibited publication of juvenile offender obtained at hearing that by law had to be closed but at which press was present and neither parties nor judge objected; information was obtained lawfully); Smith v. Daily Mail Publishing Co., 443 U.S. 97(1979)(statute prohibiting publication of offender held invalid; newspaper reporter obtained name by monitoring police radio and questioning witnesses).
10 New York Times Co. v. United States, 403 U.S. 713,730(1971).
11 Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362,1370(1975).
12 50 U.S.C $426(4)(A).
13 50 U.S.C $426(4)(A)(i).
14 50 U.S.C $426(4)(A)(ii).
15 John Dean, A Further Look at The Criminal Charges That May Arise From the Plame Scandal, In Which a CIA Agent's Cover Was Blown available at link; See also John Dean, The Bush Administration Adopts a Worse-than-Nixonian Tactic: The Deadly Serious Crime Of Naming CIA Operatives available at link.
16 The Act does not create a civil cause of action. Ms. Plame might be able to bring a suit alleging a violation of her civil rights or tort claim against Rove, but it could seem too overeager to pursue a "stretch" case while Special Counsel Peter Fitzgerald's investigation is still in progress.
17 George H.W. Bush, Remarks at the Dedication Ceremony for the George Bush Center for Intelligence available at link.
* All emphasis is in the original document.
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Analysis: Will Rove Get Frogmarched?
Last night, I transcribed a damning legal memo revealed by Joshua Marshall of TPM fame, that strongly suggests Karl Rove has already implicated himself in federal crimes under the Intelligence Identities Protection Act of 1982. While the memo raises an intriguing and forceful argument for Rove's incarceration, there remain questions about the memo itself and some of the "assumed facts" presented in the document. I propose some suggestions for the origin of the memo and some additional evidence for the documents assumed facts.
Among all the numerous uberscandals and intrigues of the Bush administration, the Plame/Wilson affair is particularly grievous to my mind. Some of you who visited my old blog will remember that I identified Joe Wilson as the anonymous former ambassador frequenting the print media with stories of the Niger forgery and the Bush administration's unnerving enthusiasm for peddling this fraud. As it turns out, I identified him on my blog, LikelyStory, two days before his now famous Op-Ed, What I Didn't Find in Africa, in the New York Times that started this whole ball rolling.
Unfortunately, during the dissolution of LikelyStory, my blogging partner erased all the archives, including my extensive coverage of the Plame/Wilson affair. For this reason and others, including what I consider Joe Wilson's tremendous courage and candor in blowing the whistle on this fraud upon the people -- not to mention the harm visited upon this nation's effort to counter international WMD proliferation with Plame's unveiling -- I hold Ambassador Wilson and Valerie Plame in great esteem and was particularly incensed with the mendacity and viciousness with which the Bush administration chose to attack them.
Now, as to the origin of Josh's memo. Let us look at what Marshall has already said concerning the documents creation:
"First, a brief note about the memo: this is not a memo that is in any way a product of the investigation itself. The facts it discusses are exclusively ones which have appeared in media reports. I'm not a lawyer so I cannot myself vouch for the strength of the arguments advanced in the memo. (They certainly seem, to my non-legal mind, to press for an interpretation which yields legal jeopardy.) But it was prepared by lawyers with the proper professional expertise to compose such a memo and interpret the statutes and precedents in question. Finally, this memo is not the product of any political campaign or organization. Not that it would
matter particularly, but it's not."
From this we know the document was:
- ... not a leaked part of Peter Fitzgerald's official Justice Department investigation.
- ... not a leaked part of any political group -- Kerry's campaign, the DNC, etc, etc.
- ... prepared by professional lawyers with expertise and skill.
- ... based upon publicly available evidence.
With these criteria we have to consider all other interested parties who would have the means and motive to hire and retain legal counsel to investigate Rove's culpability. Well, certainly the vast left hemisphere of the blogosphere has motive and some of us could conceivably shoulder the means, but I think the likely party responsible for the memo is none other than Joseph Wilson and his wife Valerie Plame. As Joe Wilson has publicly said, they certainly have a "keen interest" in seeing Karl Rove frogmarched out of the White House:
"At the end of the day, it's of keen interest to me to see whether or not we can get Karl Rove frog-marched out of the White House in handcuffs. And trust me, when I use that name, I measure my words."
They also, presumably, have the means to retain counsel and charging them with investigating Karl Rove's culpability in the unlawful disclosure. Two other pieces of evidence for this speculation come from the memo itself:
However, Rove's violation of the Intelligence Identities Protection Act is an easier crime for the public and the media to understand.16 It is hard to believe that a prosecutor would not believe there was a public policy imperative that required prosecution on the assumed facts above.
Based upon past statements by Joe Wilson, I believe he is intent upon holding Peter Fitzgerald's feet to the fire to ensure that the Justice Department's investigation doesn't just end without justice for his wife. This previous statement in the memo reads as if a very specific question was asked of the retained lawyer responsible for producing the document: is their actionable evidence for an indictment of Karl Rove. Another piece of evidence for this conjecture comes from the footnote attached to the statement above:
16 The Act does not create a civil cause of action. Ms. Plame might be able to bring a suit alleging a violation of her civil rights or tort claim against Rove, but it could seem too overeager to pursue a "stretch" case while Special Counsel Peter Fitzgerald's investigation is still in progress.
I read this as another indicator that the memo was drafted at the request of Joseph Wilson and his wife. They seem to be interested in the question of a civil suit against Karl Rove. I fervently hope that Amb. Wilson and his wife do indeed file a civil suit against Karl Rove and all those in the White House responsible for the vicious attack on his wife, regardless whether Peter Fitzgerald's investigation results in indictments or a whitewash.
Ok, so what of the assumed facts. Hoosiercat says in comments to my transcribed post:
I can imagine all kinds of spins about "public acknowledgment" which could help Rove mount an affirmative defense. The memo is too dismissive of his chances. But, it is only based upon what unnamed media sources allege to have acknowledged. It does not take into consideration any other facts about public acknowledgment. Cliff May's claims that everyone who was anyone knew about Plame may support some type of public acknowledgment defens, or May could have also lying to appear to be somebody.
First, where do we agree. Well, it seems that the only affirmative defense, according to the memo, would be one wherein Rove claims that Plame's outing was already publicly acknowledged by the United States government at the time of his conversations with journalists trying to spread the story. I think Hoosiercat agrees with this, but believes "public acknowledgement" can be spun in a more obtuse way in order to reduce the culpability of Rove. Now, this might be true, but I don't believe it. Why? Because the administration was still hedging whether Plame was, or was not, an undercover operative several months after Novak's -- and Rove's -- disclosures to the press. Observe Scott McClellan, the official press spoksman of the White House,
denying any public acknowledgement of Plame's status three separate times on September 29, 2003:
Q But, Scott, something like this did happen, right? Bob Novak had information he should not have had, that he was not authorized to have. So something --
MR. McCLELLAN: Terry, all I can tell you is what I've seen in the media reports. And I've seen different statements in the media reports from, the CIA hasn't confirmed or denied that this was a covert agent for the CIA; I've seen media reports to suggest that it was referred to the Department of Justice, and that -- and comments the Department of Justice would look into it.
Q So the President of the United States doesn't know whether or not this classified information was divulged, and he is only getting his information by reading the media?
MR. McCLELLAN: I'm sorry?
Q He does not know whether or not the classified information was divulged here, and he's only getting his information from the media?
MR. McCLELLAN: No, we don't know -- we don't have any information that's been brought to our attention beyond what we've seen in the media reports. I've made that clear.
...
MR. McCLELLAN: I'm not aware that anything was brought to our attention before information was apparently forwarded to the Department of Justice.
Q We do know one thing that did happen, and that is that a name was leaked of a CIA operative. Whoever did it, does the President want some type of Justice Department investigation into just that?
MR. McCLELLAN: Well, like I said, one, I've only -- I've seen the media reports and in one report I saw that the CIA had neither confirmed or denied that this individual was a covert operative for the CIA.
Q Why don't they deny it, if it's --
MR. McCLELLAN: But, yes, if something like this happened, a leak of highly classified information of this nature, the President would want it looked into and pursued to the fullest extent by the Department of Justice.
Q Are you saying the President is not even aware whether or not this actually was a CIA operative who was identified? I mean, you're not even saying that that is a given in this matter?
MR. McCLELLAN: What I just said is what I've seen in the media reports, was the CIA has neither confirmed or denied that. I don't know. But --
And this is not a singular occurence. Scott McClellan, along with others in the administration, continued to deny and spread doubt on the question of whether Plame as an actual covert operative for months and months after the Novak and Rove disclosures.
For posterity, please recall McClellan's clowning around on the question of Rove's contacts with the media after Novak's column ran.
Q Just to be clear, whether Rove condoned it or not, he did -- he also did not participate in that type of activity, as far as you're aware? Is that correct?
MR. McCLELLAN: There is an investigation going on to pull together all that information. I've answered this question. And you can ask it a million different ways, but my response is still going to be the same.
Q Are you saying that it's okay to discuss some -- a leak --
MR. McCLELLAN: I'm going to try to keep going around to other people, but go ahead.
Q Are you saying that after the fact, after such a --
MR. McCLELLAN: Well, now we're getting into -- well, let me put it in perspective. Now we're getting into issues such as, did anyone talk about what was in the news, what was reported in the paper, things of that nature. That can go down a whole lot of different roads. And that's why I think it's important to let the investigation take place. And the investigation is specifically about potential leak of classified information. And you're asking me to try to determine information that's going to be pulled together by the Department of Justice. They --
Q I'm just asking --
MR. McCLELLAN: I think the request, or the information that we've been asked to preserve and maintain was spelled out in the letter from the Department of Justice, and that's the information that could be related to those topics and those areas. And so we expect all White House staff to follow the directive from the President to cooperate fully in preserving and maintaining that information.
Q What I'm asking very specifically is, is it okay, in the President's view, to discuss -- for a staffer to discuss, after the fact, classified information --
MR. McCLELLAN: That is such a broad question, about is it okay to discuss news articles. I mean, news articles are discussed all the time.
Q A news article that contains a piece of classified information that is leaked -- is it okay to discuss after the fact that kind of --
MR. McCLELLAN: A news article that reported information?
Q Classified information.
MR. McCLELLAN: I'm not -- and again, I'll have to go back and check, but I'm not sure that the article, the original article said anything about classified information or said specifically, "undercover." I may be wrong -- I think it did say "operative."
Q It didn't say --
MR. McCLELLAN: And the columnist made it clear he probably shouldn't use that word, because his understanding was that she was, indeed, an analyst. So those are the facts.
Now, you're asking me to go back and try to talk to everybody throughout the White House, did anybody talk about this article? I'm just not in a position to be able to do that. I think that's the position for -- that those issues will be addressed by the Department of Justice in the investigation.
Q I'm not asking you that. I'm just asking, as a matter of policy, does the President draw a distinction between a leak of classified information --
MR. McCLELLAN: And talking about news articles?
Q -- which includes --
MR. McCLELLAN: That's why I want to be clear what you're asking. In talking about news articles?
Q Peddling them.
Q A specific news article that contained a piece of classified information. Is that okay in the President's view?
MR. McCLELLAN: Was it known that that information was classified?
Q Well, as a matter of policy --
MR. McCLELLAN: I think that's an important question. Was it known that information was classified information?
Q The article certainly identified Valerie Plame as a CIA operative. That fact presumably was not known --
MR. McCLELLAN: And the columnist said that it was his understanding that that individual was an analyst.
Q -- we don't know what he --
MR. McCLELLAN: But did the article say, "classified information," though? I mean, there are all sorts of "ifs" and "buts" in that question that would be difficult for me to answer from this podium. I think that's for -- the Department of Justice is looking at all this.
Clearly, McClellan knows Rove was peddling this information after the fact -- the question of whether he was the original Noval leaker is another question -- and trying his damndest to differentiate and characterize Rove's peddling of this leaked classified information as "harmless discussion about news reports."
What is interesting is that if you go back in time to the original leak, you'll see that the administration completely dismissed Robert Novak's article as holding no truth. A mere rumor column. Not worthy of the administrations attention even in the least. But here we have Scott McClellan having to defend, several months later, the White House's senior political officer vigourous peddling of this inconsequential, anonymously sourced, rumor column. The mendacity is incredible.
So, a final exercise for the reader. Extra points for those who come up with more cites of McClellan and the administration's refusal to publicly acknowledge Plame as an undercover CIA operative in the months following Novak and Rove's unlawful disclosure of Plame?
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So, there you have it. These diaries were written a little over one year ago, before the November elections. Today we are on the brink of indictments being handed down that could spell the demise of the Rove era and the certification in stone of President George W. Lame. Duck. Bush.
Of course, nothing is certain. Perhaps Cooper and Miller will not cave and Fitzgerald will decide that without their testimony he doesn't have a case. We've all had our hopes up before only to see them come crashing down. At the end of these old diaries I included a poll to gage the confidence of dKos regarding the likelyhood of frogmarching Rove. At the time, only 29% of dKos believed Rove would go down. How confident are we all now given the recent revelations?