At Booman, Media Girl pointed to a John Dean article suggesting another basis for prosecuting Rove, which I discuss below. I dug up a couple cases that suggest the law would apply.
Ready for your eyes to glaze over? Here's the statute, 18 USC § 641 ("Public money, property or records"): "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof" shall be fined, imprisoned for up to 10 years, or both.
Steven D observed: "The issue is one of statutory interpretation. If Rove leaked the identity of a CIA agent, his attorneys will claim that such information, though it may be contained in a government record is not the record itself, and since Congress has chosen to pass specific legislation pertaining to the wrongful disclosure of CIA agents, Section 641, with it[]s more broad language of 'record', should not apply to Rove's leak of such information."
However, Steven D also noted: "Arguably, you can convert a record to your own use if you take the information contained therein and use it for a purpose for which it wasn't intended, e.g., for the purpose of smearing or discrediting a political opponent."
The question, then, is if Rove had access to, say, the INR memo, and Rove revealed the information in the INR memo to Cooper (or other journalists), did Rove violate § 641? That is, does the law apply to the conversion of information, even though the language appears limited to public money, property, or records? The case law suggests that the answer is yes because information can be "property" and "a thing of value."
Consider two cases:
1) US v. Fowler, 932 F.2d 306 (4th Cir. 1991):
In Fowler, the defendant, who was a government contractor's employee and former DoD employee, was convicted of acquiring and disseminating classified information in violation of the statute that prohibits conversion of United States property. The defendant appealed. The Court of Appeals held that the statute applies to classified government information.
The Court stated, "even if we were to accept Fowler's theory that the indictment essentially charged only the conveyance and conversion of information, § 641 would apply because information is a species of property and a thing of value. We agree with the Second and Sixth Circuits that conversion and conveyance of governmental information can violate § 641" (citing US v. Jeter, 775 F.2d 670 (6th Cir. 1985) and US v. Girard, 601 F.2d 69 (2d Cir. 1979)).
2) US v. Girard, 601 F.2d 69 (1979) (cert. denied):
In a prosecution for an unauthorized sale of government property under § 641, the court held that the statute was not limited to tangible property or documents, and was violated by the sale of information. Concerning the phrase "thing of value," the court stated that despite the word "thing," the phrase was generally construed to cover intangibles as well as tangibles. The court stated that it was satisfied that the government had a property interest in certain of its private records which it could protect by statute as a thing of value and that it had done this.
Ultimately, the cases suggest that § 641 would apply to Rove's leak to Cooper. Rove's dissemination of classified information to Cooper was a conveyance and conversion that falls under § 641 "because information is a species of property and a thing of value."
Thoughts?
Dean's article: http://writ.news.findlaw.com/dean/20050715.html
Steven D's diary: http://www.boomantribune.com/?op=displaystory;sid=2005/7/17/121325/343
Media Girl's diary: http://www.boomantribune.com/story/2005/7/16/23022/8749#23