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NOT SO FAST
When all else fails, read the instructions

By John Steinberg | RAW STORY COLUMNIST

Although I am pleased and grateful that the mainstream press is finally covering the Plame outing, almost everything I see, hear and read pisses me off – not just because the facts are so sickening, and the Republican talking points so shameful, but because so much of what they report is just plain wrong.

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One of the more annoying things about the way the press has struggled to cover Plamegate is their willingness to megaphone the official spin on the meaning of the statute Rove may have violated.

Whether or not Karl Rove violated any laws, the fact that he is still working in the White House with a security clearance after burning an undercover CIA agent is, in my mind, the most shocking part of the whole sordid affair. But the press has followed the White House lead in focusing the discussion on the legal case rather than the fundamental treason that triggered it. The reason is obvious: getting the press so crossed up that they wind up chasing their own tails is usually easy, but if they can make the story into a he said-she said about the interpretation of a complex statute, the press is easily neutered as a source of useful information.

The knuckleheads discussing the relevant statute and its application seem to fall into one of two classes: those who know diddly about the law, and those with legal training who are more than happy to toe the administration line in interpreting the statute so as to maintain Karl Rove’s position as Lord of the Flies.

A central tenet of the interpretation making the official rounds is that the statue in question, the Intelligence Identities Protection Act, is a very difficult statute to violate. Pundits are quick to speculate that prosecutor Patrick Fitzgerald is likely to settle for perjury claims a la Ken Starr. Much of the emphasis seems to be placed on the fact that the statute states that a requirement for its application is “intentional” disclosure.

There was the predictable spin on the ever-authoritative Fox News. Jeff Birnbaum pontificated thusly:

…(W)hat is important for the investigation is whether anyone inside the White House, in this case, Karl Rove, whether he revealed the name of a CIA undercover operative with the intention of undermining that cover and doing damage to national security. And there's no evidence that that was the case.

But it isn’t just Fox. For example, Howard Fineman wrote in Newseek that “Under a 1982 law, it's a felony to intentionally disclose the name of a ‘covered’ agent with the intent to harm national security.”

The problem here is that no one talking about this statute seems to have actually read and understood it. There is an old saying: when all else fails, read the instructions. And if you want to know if someone is guilty of a crime, the instructions are the words of the statute.

It has been more than a few years since my criminal law class. But I remember a thing or two about how to parse a statute. And the way I read the statute, the pundits are out to lunch. But let’s do what it seems none of these folks have done -- let’s look at exactly what the statute in question, the Intelligence Identities Protection Act, says.


SUBCHAPTER IV--PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION
Sec. 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources

(a) Disclosure of information by persons having or having had access to
classified information that identifies covert agent

Whoever, having or having had authorized access to classified
information that identifies a covert agent, intentionally discloses any
information identifying such covert agent to any individual not
authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert
agent's intelligence relationship to the United States, shall be fined
not more than $50,000 or imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identity of covert
agents as result of having access to classified information

Whoever, as a result of having authorized access to classified
information, learns the identity of a covert agent and intentionally
discloses any information identifying such covert agent to any
individual not authorized to receive classified information, knowing
that the information disclosed so identifies such covert agent and that
the United States is taking affirmative measures to conceal such covert
agent's intelligence relationship to the United States, shall be fined
not more than $25,000 or imprisoned not more than five years, or both.

The two code sections only vary slightly; §421(b) is the broader of the two, so let’s work with that one. There are three elements of the crime having knowledge and/or intent requirements. Let’s break them down and take them in order.

First, the statute by its terms applies to “Whoever.. intentionally discloses.” The key to interpreting this statute is to understand that the adverb “intentionally” modifies only the verb “discloses,” not the rest of the sentence. In other words, in order to satisfy the intent requirement of the statute, the prosecutor need only prove that the disclosure – the act of disclosing – was intentional. Fitzgerald will not need to prove that Rove intended that ruination of the CIA, or that Rove intended treason. He will only have to prove that Rove intended to disclose.

That concept might befuddle a reporter, but it won’t slow down a decent attorney – and by all reports, Fitzgerald is several cuts above decent. In order to understand what intentional disclosure is, it might help to look at what unintentional disclosure would mean. There are lots of ways Rove could have unintentionally disclosed Valerie Plame’s identity and thus avoided violating the statute. He could have said it in his sleep, or while drunk, or during a bout of Tourette’s; he could have left a piece of paper with her name on it in his car and his car could have been stolen; you get the idea. But it seems to me that proving intent to disclose ought not to give Fitzgerald much trouble. If the prosecutor can prove that Rove (a) said the words to the effect that Joe Wilson’s wife is a CIA agent (b) with the intent that the person on the other end of the phone heard and understood them, the intent requirement will be satisfied. The key here is that intent to “damage national security” has precisely nothing to do with a violation of the statute.

Second, the statute requires that the disclosure be made with knowledge “that the information disclosed so identifies such covert agent.” Again, there are many ways this clause could save an otherwise criminal disclosure; if I tell you that I saw Congresswoman Katherine Harris standing in a Washington parking garage at midnight, and you know from another source that there is a CIA agent in Congress, and that the unidentified agent will be standing in that very garage in midnight, I have identified the agent to you, but may be saved by this language. But this requirement is again easily satisfied if Rove said “Joe Wilson’s wife is a CIA agent.” The claim that Rove never said her name is meaningless and changes nothing; the statute requires only identification, which could be picking a nameless face out of a book of mug shots, in a lineup or whatever. See how easy this can be when you read the instructions?

Finally, the statute requires that the accused must have knowledge “that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.”

This requirement may be the tough one. If someone whispered in Karl Rove’s ear, “Joe Wilson’s wife is a CIA agent,” but does not address whether she is covert, and Rove repeated the statement to a reporter, Rove could have avoided liability by simply making sure he didn’t know whether or not Joe Wilson’s wife is undercover. And Rove is a pretty cool customer; that could have been the plan all along.

So this requirement is likely to be fact-specific, and may be the focus of Fitzgerald’s investigation. If, as Rove now claims, Rove really had no idea Plame was an undercover operative until Novak told him so, and Novak told him that after Rove offered or confirmed that Plame worked for the CIA, Rove may be able to squeeze by based upon the public evidence. The Matt Cooper email does not address this critical issue. (This outcome would only fold the question back to how Novak learned about Plame if not from Rove.) On the other hand, Robert Novak’s statement that “I didn't dig it out, it was given to me," when combined with the statement in the infamous article that “Valerie Plame, is an Agency operative” suggests that Rove (or the still undisclosed second source) did in fact know. As Josh Marshall has pointed out, Novak has a long paper trail using the term “operative” specifically to refer to undercover agents.

There are lots of ways this fact could be established – documentary evidence, testimony from another witness, etc. One obvious way Fitzgerald could make this final element stick could be to tie Rove to the June, 2003 classified intelligence report prepared by the State Department that identified Plame and tied her to Wilson in exactly the way noted in Cooper’s notes. It has been alleged that Colin Powell had that memo with him when he accompanied the President on his trip to Africa that began the day after Wilson’s op ed appeared. Also traveling with the President on that trip were Condoleeza Rice and Ari Fleisher. The New York Times has reported that Powell “was seen walking around Air Force One during the trip with the memorandum in hand.” Fleisher’s name is now popping up regularly in connection with the investigation. Colin Powell was called before the Fitzgerald grand jury last year to discuss this very subject. I don’t know whether that report described Valerie Plame’s CIA status. If it did, and if it turns out that Powell or Fleisher shared the memo and/or its contents with Rove (which alone is probably neither illegal nor a breach of any duty), the circle will be complete.

Perhaps the most significant bit of circumstantial evidence that Fitzgerald has this requirement covered is the fact that neither Robert Luskin, Rove’s normally loquacious attorney nor the White House spin machine has, to my knowledge, made any attempt to argue that Rove did not meet this requirement. Indeed, Luskin specifically declined to comment on this exact question. Either they think it is not worth making such a subtle argument through the simple minds of the media, or they know that Fitzgerald has them nailed on this one.

I’m not a criminal lawyer, and I have not done any research beyond reading and parsing the statute itself . So I could be way off here, but I doubt it.

So class, to summarize: Fitzgerald should not have much trouble making his case as to Rove’s intent or the fact that he knowingly outed Plame. The only question in my mind is whether Fitzgerald will be able to prove that Rove knew Plame was undercover.

The nattering nabobs busy covering Rove’s pasty white behind by echoing the superficial Republican talking points may or may not know this. But I have to believe Patrick Fitzgerald does. And I’m betting that he can make this one stick – as long as he follows the instructions.

John Steinberg bloviates regularly @ www.bluememe.blogspot.com.

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