Could Valerie Plame Sue Karl Rove?

ANTHONY J. SEBOK
Could Valerie Plame Sue Karl Rove?
Part One of a Two-Part Series

FindLaw columnist and Brooklyn law professor Anthony Sebok raises an interesting question: Could Valerie Plame -- the CIA agent whose identity was leaked, resulting in the current Special Counsel investigation -- sue Karl Rove, if he was the leaker? Sebok considers both the Supreme Court decisions regarding immunity for federal officials, and the various kinds of civil claims that might be available to Plame.
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JOHN W. DEAN
It Appears That Karl Rove Is In Serious Trouble

FindLaw columnist and former counsel to the president John Dean discusses the legal situation of White House aide Karl Rove -- who apparently leaked the identity of CIA agent Valerie Plame Wilson to Time magazine's Matt Cooper, and possibly other journalists as well. Dean concludes that, based on the information known to the public so far, Rove might not be able to be prosecuted for the leak under the Intelligence Identities and Protection Act, but may very well be able to be prosecuted under other statutes. Dean notes the strong parallel between the leak that prompted the prosecution of an earlier Bush Administration leaker, DEA analyst Jonathan Randel, and the leak for which Rove is apparently responsible. As Dean notes, Randel was jailed for a year for a leak that seems to have posed much less risk, and caused less injury, than Rove's.
Friday, Jul. 15, 2005
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It Appears That Karl Rove Is In Serious Trouble
By JOHN W. DEAN
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Friday, Jul. 15, 2005

As the scandal over the leak of CIA agent Valerie Plame's identity has continued to unfold, there is a renewed focus on Karl Rove -- the White House Deputy Chief of Staff whom President Bush calls his political "architect."

Newsweek has reported that Matt Cooper, in an email to his bureau chief at Time magazine, wrote that he had spoken "to Rove on double super secret background for about two min[ute]s before he went on vacation ..." In that conversation, Rove gave Cooper a "big warning" that Time should not "get too far out on Wilson." Rove was referring, of course, to former Ambassador Joe Wilson's acknowledgment of his trip to Africa, where he discovered that Niger had not, in fact, provided uranium to Iraq that might be part of a weapons of mass destruction (WMD) program. Cooper's email indicates that Rove told Cooper that Wilson's trip had not been authorized by CIA Director George Tenet or Vice President Dick Cheney; rather, Rove claimed, "it was � [W]ilson's wife, who apparently works at the agency on [WMD] issues who authorized the trip." (Rove was wrong about the authorization.)

Only the Special Counsel, Patrick Fitzgerald, and his staff have all the facts on their investigation at this point, but there is increasing evidence that Rove (and others) may have violated one or more federal laws. At this time, it would be speculation to predict whether indictments will be forthcoming.

No Apparent Violation Of The Identities Protection Act

As I pointed out when the Valerie Plame Wilson leak first surfaced, the Intelligence Identities And Protection Act is a complex law. For the law to apply to Rove, a number of requirements must be met.

Rove must have had "authorized access to classified information" under the statute. Plame was an NCO (non-covered officer). White House aides, and even the president, are seldom, if ever, given this information. So it is not likely Rove had "authorized access" to it.

In addition, Rove must have "intentionally" -- not "knowingly" as has been mentioned in the news coverage -- disclosed "any information identifying such a covert agent." Whether or not Rove actually referred to Mrs. Wilson as "Valerie Plame," then, the key would be whether he gave Matt Cooper (or others) information that Joe Wilson's wife was a covert agent. Also, the statute requires that Rove had to know, as a fact, that the United States was taking, or had taken, "affirmative measures to conceal" Valerie Plame's covert status. Rove's lawyer says he had no such knowledge.

In fact, there is no public evidence that Valerie Wilson had the covert status required by the statute. A covert agent, as defined under this law, is "a present or retired officer or employee" of the CIA, whose identity as such "is classified information," and this person must be serving outside of the United States, or have done so in the last five years.

There is no solid information that Rove, or anyone else, violated this law designed to protect covert CIA agents. There is, however, evidence suggesting that other laws were violated. In particular, I have in mind the laws invoked by the Bush Justice Department in the relatively minor leak case that it vigorously prosecuted, though it involved information that was not nearly as sensitive as that which Rove provided Matt Cooper (and possibly others).

The Jonathan Randel Leak Prosecution Precedent

I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst, a PhD in history, working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft (a major contributor to Britain's Conservative Party, as well as American conservative causes) was being ignored by DEA, and its investigation of money laundering. (Lord Ashcroft is based in South Florida and the off-shore tax haven of Belize.)

Randel leaked the fact that Lord Ashcroft's name was in the DEA files, and this fact soon surfaced in the London news media. Ashcroft sued, and learned the source of the information was Randel. Using his clout, soon Ashcroft had the U.S. Attorney in pursuit of Randel for his leak.

By late February 2002, the Department of Justice indicted Randel for his leaking of Lord Ashcroft's name. It was an eighteen count "kitchen sink" indictment; they threw everything they could think of at Randel. Most relevant for Karl Rove's situation, Court One of Randel's indictment alleged a violation of Title 18, United States Code, Section 641. This is a law that prohibits theft (or conversion for one's own use) of government records and information for non-governmental purposes. But its broad language covers leaks, and it has now been used to cover just such actions.

Randel, faced with a life sentence (actually, 500 years) if convicted on all counts, on the advice of his attorney, pleaded guilty to violating Section 641. On January 9, 2003, Randel was sentenced to a year in a federal prison, followed by three years probation. This sentence prompted the U.S. Attorney to boast that the conviction of Randel made a good example of how the Bush Administration would handle leakers.

The Randel Precedent -- If Followed -- Bodes Ill For Rove

Karl Rove may be able to claim that he did not know he was leaking "classified information" about a "covert agent," but there can be no question he understood that what he was leaking was "sensitive information." The very fact that Matt Cooper called it "double super secret background" information suggests Rove knew of its sensitivity, if he did not know it was classified information (which by definition is sensitive).

United States District Court Judge Richard Story's statement to Jonathan Randel, at the time of sentencing, might have an unpleasant ring for Karl Rove. Judge Story told Randel that he surely must have appreciated the risks in leaking DEA information. "Anything that would affect the security of officers and of the operations of the agency would be of tremendous concern, I think, to any law-abiding citizen in this country," the judge observed. Judge Story concluded this leak of sensitive information was "a very serious crime."

"In my view," he explained, "it is a very serious offense because of the risk that comes with it, and part of that risk is because of the position" that Randel held in the DEA. But the risk posed by the information Rove leaked is multiplied many times over; it occurred at a time when the nation was considering going to war over weapons of mass destruction. And Rove was risking the identity of, in attempting to discredit, a WMD proliferation expert, Valerie Plame Wilson.

Judge Story acknowledged that Randel's leak did not appear to put lives at risk, nor to jeopardize any DEA investigations. But he also pointed out that Randel "could not have completely and fully known that in the position that [he] held." Is not the same true of Rove? Rove had no idea what the specific consequences of giving a reporter the name of a CIA agent (about whom he says he knew nothing) would be--he only knew that he wanted to discredit her (incorrectly) for dispatching her husband to determine if the rumors about Niger uranium were true or false.

Given the nature of Valerie Plame Wilson's work, it is unlikely the public will ever know if Rove's leak caused damage, or even loss of life of one of her contracts abroad, because of Rove's actions. Dose anyone know the dangers and risks that she and her family may face because of this leak?

It was just such a risk that convinced Judge Story that "for any person with the agency to take it upon himself to leak information poses a tremendous risk; and that's what, to me, makes this a particularly serious offense." Cannot the same be said that Rove's leak? It dealt with matters related to national security; if the risk Randel was taking was a "tremendous" risk, surely Rove's leak was monumental.

While there are other potential violations of the law that may be involved with the Valerie Plame Wilson case, it would be speculation to consider them. But Karl Rove's leak to Matt Cooper is now an established fact. First, there is Matt Cooper's email record. And Cooper has now confirmed that he has told the grand jury he spoke with Rove. If Rove's leak fails to fall under the statute that was used to prosecute Randel, I do not understand why.

There are stories circulating that Rove may have been told of Valerie Plame's CIA activity by a journalist, such as Judith Miller, as recently suggested in Editor & Publisher. If so, that doesn't exonerate Rove. Rather, it could make for some interesting pairing under the federal conspiracy statute (which was the statute most commonly employed during Watergate).

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