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'Not involved in the leaking of classified information'
Sat Oct 11 21:17:58 2003
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October 11, 2003
'Not involved in the leaking of classified information'

Josh Marshall has commented several times recently about how Scott McClellan's response to questions about whether Karl Rove, Libby Lewis or Elliot Abrams took part in leaking the information about Valerie Plame's status as a CIA operative has consistently been "They were not involved in the leaking of classified information." Part of what's piqued Josh's interest is that this has been virtually the only answer McClellan would give. He also notes that it doesn't really answer the question, and it's a very narrow, very legalistic response.

Today, a reporter in the press gaggle decided to try and pin McClellan down a bit more, by specifically asking if the three were involved in the Valerie Plame leak. As might be expected, McClellan once again demonstrated what a good tap dancer he can be.
QUESTION: Scott, earlier this week you told us that neither Karl Rove, Elliot Abrams nor Lewis Libby disclosed any classified information with regard to the leak. I wondered if you could tell us more specifically whether any of them told any reporter that Valerie Plame worked for the CIA?

MCCLELLAN: Those individuals -- I talked -- I spoke with those individuals, as I pointed out, and those individuals assured me they were not involved in this. And that's where it stands.

QUESTION: So none of them told any reporter that Valerie Plame worked for the CIA?

MCCLELLAN: They assured me that they were not involved in this.

QUESTION: Can I follow up on that?

QUESTION: They were not involved in what?

MCCLELLAN: The leaking of classified information.

QUESTION: Did you undertake that of your own volition, or were you instructed to go to these --

MCCLELLAN: I spoke to those individuals myself.
Right back to the basic "not involved in the leaking of classified information" again.

There's definitely something more going on here. It's just a matter of how long it'll take to find out what.
Posted by thorswitch at 12:59 AM | Comments (0) | TrackBack (0)

October 10, 2003
Are criminal charges possible even if White House not behind Plame leak?

John Dean has had a lot to say lately about the Bush administration. In his most recent "FindLaw's Writ" column, he discusses the possibility that criminal charges against members of the White House may be possible, even if the White House itself was not behind the leak. I'm reposting a good deal of the column here to make it easier to follow the legal issues he's discussing, but, as always, I recommend checking out the rest to get the full context.
The White House Need Not Have Leaked to Have Committed a Crime

[...] It is entirely possible that no one at the Bush "White House" or on the President's personal staff, was involved in the initial leak to Novak. It could have been someone at the National Security Council, which is related to the Bush White House but not part of it.

[...] But even if the White House was not initially involved with the leak, it has exploited it. As a result, it may have opened itself to additional criminal charges under the federal conspiracy statute.

Why the Federal Conspiracy and Fraud Statutes May Apply Here

This elegantly simple law has snared countless people working for, or with, the federal government. Suppose a conspiracy is in progress. Even those who come in later, and who share in the purpose of the conspiracy, can become responsible for all that has gone on before they joined. They need not realize they are breaking the law; they need only have joined the conspiracy.

Most likely, in this instance the conspiracy would be a conspiracy to defraud - for the broad federal fraud statute, too, may apply here. If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee." It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.

What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." (Emphasis Dean's.) If telephoning reporters to further destroy a CIA asset whose identity has been revealed, and whose safety is now in jeopardy, does not fit this description, I would be quite surprised.

If Newsweek is correct that Karl Rove declared Valerie Plame Wilson "fair game," then he should make sure he's got a good criminal lawyer, for he made need one. I've only suggested the most obvious criminal statute that might come into play for those who exploit the leak of a CIA asset's identity. There are others.
It should be noted that, according to the Newsweek article where Rove's contact with Matthew's was initially described, that a "source familiar with Rove’s conversation" has said that Rove did not say that Plame was "fair game", but that "it was reasonable to discuss who sent Wilson to Niger."

I'm not sure, however, that in the context Dean is referring to, that the actual phrasing makes much difference when it comes to the possible criminal implications. Either way, Rove was trying to promote the story and encourage other reporters (or at least one other reporter) to run with it. I'm not a legal expert, but if I understand what Dean is saying in his analysis, it sounds like the law would still apply.
http://www.differentstrings.info/

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For more good information on Valerie Plame's career at CIA and, in some respects, a counterweight to Nick Kristof's informative column in the today's Times, see Warren Strobel's new piece from Friday
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