The White House??¢â???¬â???¢s Legal Katrina

There now appears to be consensus that no one violated the 1982 Agent Identities Protection Act in publishing the name of CIA employee Valerie Plame.

It’s a hard law to violate.  Its high threshold requires that the person whose identity is revealed must actually be covert (which requires at the least a foreign assignment within five years of the revelation), that the government must be taking “affirmative measures” to conceal the person’s identity, and that the revealer must know that the government is taking those measures.

So why didn’t Patrick Fitzgerald, the special counsel investigating the “leak,” close up shop long ago?

One possible answer is that someone lied about a material fact when testifying before the grand jury or obstructed justice in some other way.  If that is the case, the prosecutor should indict.

However, recent reporting, attributable to “lawyers familiar with the investigation,” points to a different prosecutorial tactic: Fitzgerald may be taking a “creative” approach to finding a legal violation.  In other words, he may be trying to find a law other than the Agent Identities Protection Act that he might be able to apply to the factual scenario in this case even though it was never intended to cover such conduct.

Those lawyers “familiar” with what is going on in Fitzgerald’s investigation have likely based their opinions on the types of questions the prosecution team has asked their own clients, who are presumably only witnesses.  One theory is that Fitzgerald is looking at a general espionage law, 18 USC §793.  But that law prohibits a person from revealing national defense information such as ship movements or submarine base locations.  It was never intended to criminalize the mere act of disclosing a CIA agent’s name.  Why?  Because when Congress considered prohibiting revealing a covert person’s identity, it stated in the accompanying report that such disclosure should only be prohibited under limited circumstances to “exclude the possibility that casual discussion, political debate, the journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government” would be chilled by the law.

Congress intended to criminalize only disclosures that “clearly represent a conscious and pernicious effort to identify and expose agents with the intent to impair or impede the foreign intelligence activities of the United States….”

Similarly, a conspiracy “to discredit Wilson for his statements critical of the White House’s use of intelligence,” another reported possible Fitzgerald approach, does not violate any law.  If it did, every administration since George Washington would be guilty of a crime.

How did we get here–over two years after Bob Novak’s July 14, 2003 column publishing Plame’s name—with a reporter jailed for refusing to reveal a source and numerous government employees, from a low level White  House employee to the President of the United States, testifying before a grand jury when the law addressing the disclosure does not even apply?  How did we reach the point where there is widespread speculation that the President’s and Vice President’s top staffers might be indicted?  Let’s return to the summer of 2003 and trace the factual, legal, and political routing of the “CIA leak.”

In May and June of 2003 there were newspaper articles hinting that George W. Bush’s State of the Union address was wrong in claiming an African country was approached by Saddam Hussein to purchase uranium, an ingredient necessary for making a nuclear weapon.  The stories did not name the source but referred to him variously as “a person involved in the Niger caper” and “the CIA’s envoy.”

On July 6, 2003, the New York Times published an op-ed by former Amb. Joseph Wilson, who not only revealed he had been sent to Niger by the CIA to investigate the uranium purchase, but also continued the theme that ran through the unnamed source articles, that the trip was at Vice President Dick Cheney’s request.  Wilson claimed he had reported to the CIA that such a purchase was “highly doubtful” and accused the Bush Administration of having “twisted” intelligence “to exaggerate the Iraqi threat.”

Savvy Washington journalists scratched their collective heads, questioning, “Why Wilson?”  Why would the Vice President send a person to Niger on a mission about WMD who was not an expert in that subject, had never served in a senior capacity in Niger, had not worked for the CIA, and was known to oppose the White House Iraq policy?  Wilson, in addition to all that, was known around town as a grandstander and a bit of a flake.

The “Why Wilson” question was being asked by the Washington Post, New York Times, Time Magazine, and columnists such as Novak.   Reporters were not the only ones asking.  Cheney was surprised that Wilson had claimed the mission was at his request since it was not true.  It probably was not a pleasant call that went from Cheney’s office to then CIA Director George Tenet.

Perhaps Tenet was also asked why a person sent on such a sensitive mission, unlike the rest of us, did not have to sign a confidentiality agreement and was permitted to publish an account of that mission.  Was the CIA trying to put the blame on the White House for the State of the Union misstep?

Thus, Novak, pursuing his “Why Wilson” quest, asked the question when talking to a variety of persons in the Administration.  Novak has stated when he learned Wilson’s wife recommended him for the mission it was in response to a question he had asked at the end of an interview about another issue.  The person clearly was not shopping the story.  Novak has also said this person was not a “political operative,” a term that aptly describes Karl Rove and Lewis “Scooter” Libby, the two administration officials named by Judith Miller (New York Times) and Matt Cooper (Time Magazine) as confirming the general information that Wilson’s wife recommended him for the trip, but not as having revealed her name or covert status.

Click.  Take a photograph in time of the July 2003 moment Novak published his column.  Here was a journalist exposing incompetence: a mission to verify an important fact cited for going to war was made “at a low level without …Tenet’s knowledge.”  Novak continues his attack on the CIA, writing that it was “doubtful” Tenet ever saw Wilson’s “less than definitive” report.  Not until the sixth paragraph does Novak state that Plame “is an Agency operative on weapons of mass destruction” who, according to two “senior administration officials,” suggested sending her husband to Niger.  The word “nepotism” readily comes to mind in answering the question “Why Wilson.”  This type of reporting is exactly what Congress did not want to criminalize.

Novak has stated that he learned Plame’s name from Wilson’s Who’s Who bio, not from any official.  No facts have surfaced in either Miller’s or Cooper’s public statements about their sources (Libby and Rove) that indicate either one knew any more than being told Wilson’s wife worked at the CIA in WMD, and recommended him for the trip.  Miller didn’t even have the name correct, writing “Flame,” not Plame, in her notes and said she did not get it from Libby.  On these facts, no law—either the 1982 Act or the general espionage law—was violated.

How did an article about CIA incompetence and administration in-fighting become a cause celebre resulting in a misplaced criminal investigation that looks like it will culminate in an indictment?  Wilson spun it well and the media collaborated to bash the Bush Administration.  No one knew or understood the underlying law, the Agent Identities Protection Act—not the White House or the media.  Moreover, the special counsel has an expansive view of criminal law as he is reported to be searching under every rock to match certain conduct, even “creatively,” with some criminal statute.  To quote Justice Robert Jackson when he was Attorney General, “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone."

The Wilson Spin:  There’s a legal maxim that he who frames the issue wins the case.  After the Novak article, Wilson came out of his corner with the issue framed: The White House was trying to punish him for his op-ed and did so by “outing” his wife.  This is a tough White House.  Why would anyone think that making Plame’s name public could be punishment to her husband?  First, it is too obtuse an action for the tough, direct Bush team.  Second, she was not covert.  Plame was an analyst at the time of Novak’s article.  Any “outing” was not going to, nor did it, effect her position at the CIA.  Where is the punishment?

However, the premise fit nicely into the anti-Bush agenda of the liberal media.

White House ignorance of the law: The White House’s ignorance of the law played into the media agenda.  Whoever allowed the President to appear before the camera saying, “If there’s a leak, I want to know who it is,” should be fired.  The prohibited conduct is not a simple leak.  The law, as described above, is complex.  Moreover, explaining that nepotism was the answer to “Why Wilson” is a more logical explanation for the conduct than that someone was trying to punish a person by pursing the spouse.  Yet, the White House never put a counter position out there.

Lawyers representing subpoenaed journalists, including Novak’s counsel, scrupulously avoided providing any public defense of their clients, preferring to lie low.  So the prism of “punishment,” not “exposing nepotism,” became embedded as the basis for Novak’s column.  Like the $600 toilet seats, it will not go away.  As recently as this past Sunday, every journalist on ABC’s “This Week” exhibited this pack mentality by accepting the premise that the only explanation for someone talking about Wilson’s wife was that it was retribution. 

Media ignorance of the law:  Many major newspapers assumed a law had been broken, and editorialized for an investigation and for it to be carried out by a special counsel.  Few checked with a lawyer for a legal analysis, or considered that a real investigation of a “leak” results in reporters being subpoenaed.  Did the press know that a special prosecutor does not have to comply with any Department of Justice rules for subpoenaing journalists?  Even worse, when it came time to retain legal representation for their reporters, they hired only First Amendment counsel, not criminal defense lawyers; so the issue of whether there was a threshold of evidence for violation of the 1982 Act was never brought before the trial court.

If you are confused about what is happening in this case it is because the media persists in interviewing journalists to opine on the law.  They would never use a journalist to describe how to do brain surgery.  Mostly, the reporters get it wrong because they have no law degree and usually are hyping their own story, which may contain a new fact or two but has no legal significance.  The fact that Miller never published a story about her information means nothing under the law.  The reporter is considered a witness to the crime, just as if he or she had been present during a bank robbery.  Headline stories that Rove remembers discussing a specific subject, like welfare reform, during a conversation while a reporter does not, has no legal bearing if that subject is not material or relative to the “leak.”  Besides, which person has the faulty memory?

Two of the most unsophisticated, yet often repeated, misunderstandings of the legal process in this case, are: 1) The President should have called his staff into a meeting and asked the perpetrator to confess, and 2) Fitzgerald will (or should) write a report to explain what he found during the investigation.

No good defense counsel would ever permit any client, let alone the President, to carry out such a foolhardy act.  The prosecutor would accuse the President of interfering with a criminal investigation by tampering with witnesses.

Fitzgerald cannot write a report.  It is forbidden by law as the information he has accumulated is grand jury material prohibited by law from disclosure.  There is no longer an Independent Counsel statute, which permitted this type of report.  I have never heard of a federal judge ordering a prosecutor to write a report of a grand jury investigation and then make it public.  A court does not have the authority to do so.

A perfect storm has gathered.  It is the administration’s legal Katrina.  The dark clouds are filled with Wilson’s spin spurred on by a media frenzy, a White House that did not have federal criminal law expertise, and a dogged prosecutor who appears willing to stretch the criminal law to get an indictment.  The White House better get prepared for the aftermath.