How To Prosecute the Plame Case by Tom Engelhardt and Elizabeth de la Vega

by Tom Engelhardt and Elizabeth de la Vega
by Tom Engelhardt and Elizabeth de la Vega

Rumors and leaks continue to swirl around the case of outed CIA agent Valerie Plame and the various journalists and Bush "senior administration officials" believed to be involved in some fashion in her outing. Whole forests have undoubtedly been pulped for the endless flood of summer stories about the Plame case and yet something has been missing. The Intelligence Identities Protection Act of 1982, the law against outing a CIA operative under which Special Counsel Patrick Fitzgerald was, in essence, called into existence, is rarely discussed in any serious way – and then at best only in a passing paragraph or two deep in any story. And yet a media/punditry consensus has formed that it is a law so specifically, even quirkily, written as to be almost impossible to use in a prosecution (hopeless, in fact, against a figure like Karl Rove or Vice President Cheney's right-hand man I. Lewis "Scooter" Libby); and that Special Counsel Fitzgerald has already turned away from the law, moving on to more conceivable avenues of prosecution – like obstruction of justice.

Elizabeth de la Vega, former federal prosecutor and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California, has no more inside information than the rest of us on an investigation that has seemed remarkably leak-less; but calling on her prosecutorial experience, she begs to differ on the question of whether the 1982 law is difficult to use in a prosecution. Alone among a sea of pundits, she suggests that the 1982 law is perfectly a usable one under which, based on what we know at present, a case could indeed be brought against a "senior administration official" and perhaps prosecuted successfully indeed. This is news. ~ Tom.

Plame in the Courtroom: Is the Intelligence Identities Protection Act really impossible to prove?

Pundits right, left, and center have reached a rare unanimous verdict about one aspect of the grand jury investigation into the Valerie Plame leak: They've decided that no charges can be brought under the Intelligence Identities Protection Act of 1982, because it imposes an impossibly high standard for proof of intent. Typically, writing for Slate on July 19th, Christopher Hitchens described the 1982 Act as a "silly law" that requires that "you knowingly wish to expose the cover of a CIA officer who you understand may be harmed as a result." Similarly, columnist Richard Cohen, in the July 14 Washington Post, said he thought Rove was a "political opportunist, not a traitor" and that he didn't think Rove "specifically intended to blow the cover of a CIA agent." Such examples could be multiplied many times over.

Shocking as it may seem, however, the pundits are wrong; and their casual summaries of the requirements of the 1982 statute betray a fundamental misunderstanding regarding proof of criminal intent.

Do you have to intend to harm a CIA agent or jeopardize national security in order to violate the Intelligence Identities Protection Act? The answer is no.

Before presenting any case, a prosecutor like Special Counsel Patrick Fitzgerald in the Plame case has to figure out "the elements of the crime"; in other words, the factors he has to prove under whatever statute he is considering. If a grand jury finds probable cause to believe that each element has been proved, it may then return an indictment. At trial, the judge instructs the jury about these same elements. Parties can argue about whether the elements have been proved beyond a reasonable doubt, but neither side can add, delete, or modify the elements even slightly to suit their arguments.

Why can't you change the elements? Because they come from the exact wording of the statute. This then is what the Intelligence Identities Protection Act of 1982 says:

"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 received classified information, knowing that the information disclosed so identifies such covert agent and that the U.S. is taking affirmative measures to conceal such covert agent‘s intelligence relationship to the U.S. [shall be guilty of a crime]."

To figure out the elements that must be proved, you simply break this run-on sentence into subparts in the following manner:

Proof of these five elements – and no others – is what's required under the 1982 legislation.

So what, exactly, does the prosecutor have to prove about the defendant's state of mind under this law? Element 2 says the defendant must "intentionally disclose" the information. To determine what "intentionally disclose" means, you must follow some basic rules of statutory construction. First, you look to see if the word is specifically defined within the statute itself. For example, the term "disclosed" is defined in the Act to mean "communicate, provide, impart, transmit, transfer, convey, publish or otherwise make available."

The word "intentionally" is not defined in the statute, so you have to turn to the second rule of statutory construction, which is to see if it is defined or interpreted in applicable case law. There is little case law on the statute itself. But there's a wealth of case law interpreting the term "intentionally," because it is a term of art found in nearly every criminal statute. Its meaning is well-established and straightforward. It simply means "on purpose, not by mistake or accident." So if someone runs off the bus and accidentally leaves behind papers that expose an undercover CIA agent's identity, no crime has been committed because Element 2 can't be proven. On the other hand, if someone were speaking purposefully, as opposed to, say, drunkenly popping off at a bar, Element 2 would be satisfied.

Nowhere does this statute require proof that the defendant "wished to harm" an undercover agent or jeopardize national security. Why someone disclosed the information – whether to prevent the publication of a story or to harm the U.S. – is an issue of motive, not intent.

Merely semantics, you say? In criminal law, it's nonetheless a key distinction. Motive is why someone acts; intent is the person's purposefulness while doing so. If you accidentally take home your neighbor's Gucci bag from the block party, there's no crime because you didn't act intentionally. (You do have to give it back, though.) If you grab your neighbor‘s bag on purpose, you've acted intentionally and you could be guilty of theft. It matters not a whit whether your motive was to get revenge on your neighbor for making too much noise or to get extra cash to hand out to the poor. Evidence of a bad motive is usually admitted as background in the proof of a criminal case, but it is almost never an element of the crime; and evidence of a good motive is usually not a defense once the intent specified in the statute is proven.

The other elements that relate to state of mind are Elements 4 and 5. To prove a violation of the Intelligence Identities Protection Act, the prosecutor has to prove that the defendant knew the information he or she was disclosing "identifies" the covert agent and that the government was taking affirmative measures to conceal that agent's intelligence relationship to the U.S. Both of these elements relate only to what the leaker knows; they don't require that he convey all of this knowledge to the unauthorized leakee.

What then does "identify" mean in this statute? Well, there is no specific definition and no case law to look to. So you turn to the third rule of statutory construction, which simply says that you apply the everyday meaning of the word. Perhaps in a through-the-looking-glass world someone could decree that to identify means to "name" and nothing else, but the statute doesn't say that; nor is that how ordinary people would use the word. There are obviously myriad ways to identify a person besides naming them, but unless a man were a polygamist, a reference to his wife – as in Karl Rove's identification of "Wilson's wife" in his conversation with Time reporter Matt Cooper – would certainly suffice to direct the listener to a single, specific person.

How does all of this play out in the context of the ongoing grand jury investigation into the Valerie Plame leak?

None of us can presume to know the universe of facts so far uncovered in the investigation. On the contrary, at the risk of sounding like Donald Rumsfeld, we can be quite sure that there is much that we do not know, and that some of what we think we know is surely wrong; nor can we presume to know the workings of Special Prosecutor Patrick Fitzgerald's mind. It would then be presumptuous to declare that the Intelligence Identities Protection Act is definitely still under consideration in the grand jury proceeding. But it would be no less presumptuous – and illogical – to declare that it is not under consideration, especially since that judgment is based on mistaken assumptions about the requirements of the law. (Interestingly, with each new commentary in the press or on TV, the statute only seems to get harder to prove.)

It is also worth remembering that prosecutors analyze evidence with a view towards presenting it in a trial, and even in the post 9-11 world, trials are not like talk shows. The parties at a trial do not hurl scattershot attacks as if they were partisan guests in the drive-by shoutings that have become the stuff of so many news programs. In a trial, both sides present evidence according to established rules that are meant to weed out rumor and opinion. Almost inevitably, over the weeks if not months of a trial, evidence that may appear persuasive on a TV show, but is actually false or misleading, loses sway when viewed in the context of the larger picture.

In painting that picture, the prosecution is not required to present its evidence so narrowly as to lose the context of the alleged crime. Right now, it's as if, when it comes to the Plame case, most of us are in the front rows of a movie theater and have no way of fully seeing what's on screen. Away from the daily drumbeat of news, rumor, and self-interested leaks, however, the picture may make a lot more (and different) sense. Within limits, the law allows the prosecution to prove its case with the wide screen that's necessary for a clearer view.

If the prosecution were attempting to prove that Karl Rove's July 11, 2003 conversation with Time's Matt Cooper violated the Intelligence Identities Protection Act, for example, it would obviously present Cooper's testimony about the conversation, and possibly the notes and e-mails that documented it. Since criminal law allows a jury to use common sense to draw reasonable inferences from the facts presented, a prosecutor could then argue that Cooper's testimony goes a long way towards proving all of the elements of the crime. (A prerequisite for any violation would, of course, be proof that Joseph Wilson's wife Valerie Plame was indeed a covert agent, but as former State Department counterterrorism expert Larry Johnson's July 22 congressional testimony makes clear, there is abundant proof of that fact.)

When it comes to the Cooper-Rove conversation, a prosecutor would assumedly argue, first, that there's no doubt Karl Rove provided information to Cooper intentionally; that is, not by mistake or accident. It strains credulity to suggest that a seasoned political operator like Rove ever says anything to a reporter that is not calculated, and Rove's purposefulness can also be seen in the details of the call. Rove knew he was talking to a reporter, not a person authorized to receive classified information. Since Cooper called Rove and was put through only after the call was screened by a secretary, we can infer that Rove made a conscious choice to speak with him. Cooper also began the call by identifying himself. Finally, Rove provided information on "deep background," a term of art which, to a reporter, means that the information can be used but the source cannot be identified. This fact alone precludes a finding that Rove was speaking accidentally or by mistake.

In addition, the prosecution would likely argue that there's no real issue on the question of whether Rove "disclosed" information. Cooper says that Rove told him Wilson's wife was a CIA agent who worked on weapons of mass destruction and that it was she, not George Tenet or Dick Cheney who was responsible for sending Wilson on his mission to Niger. He also says that Rove told him the information about Wilson's wife was "going to be declassified soon." Affirmatively providing information obviously constitutes "disclosing" it, as the term is defined in the statute. So if the jury accepts Cooper's testimony, the issue of whether Rove "intentionally disclosed" information is settled. But it could also be settled even if the version provided by the "sources close to Rove" – that he simply confirmed information Cooper provided – was accepted as accurate. As Rove would certainly know, a confirmation by a senior administration official conveys information to a reporter and makes it available to him for use, even if under slightly limited circumstances. Both "conveying" and "making available" are terms used to define "disclose" in the Intelligence Identities Protection Act.

Common sense precludes any serious argument that a reference to "Joseph Wilson's wife" does not constitute an identification, so the jury could reasonably infer Rove's knowledge from the nature of the information he disclosed. In other words, a jury could infer that Rove knew Wilson's wife's status was covert and that the CIA was taking affirmative measures to conceal her intelligence relationship to the government, because he said it was going to be declassified soon. Obviously, information does not need to be declassified if it is not currently classified. That the information is classified means that the government has been taking affirmative measures to conceal it.

Rove's revelations about Valerie Plame's specific work on weapons of mass destruction, as well as the claim that she was responsible for sending her husband to Niger, also give rise to the reasonable and necessary inference that he had access to detailed classified information about her work at the CIA. The only commonsense interpretation of the comment Cooper imputes to Rove – "I've already said too much" – is, finally, that he knew he was imparting classified information he was not supposed to impart.

Why believe Cooper? As a start, because most of what he says about the conversation is not in dispute. He is also clearly a man of principle who was willing to go to jail to protect his source. He has no motive to falsely incriminate anyone, least of all Karl Rove or Vice President Cheney's aide Lewis "Scooter" Libby. He has clearly been careful to include all the details he can recall regardless of their implications for either side – and his account is corroborated by writings he made at the time. Perhaps most important, Cooper's version of the July 11, 2003 conversation with Rove makes sense when viewed against what we already know of the background of the entire case. That context not only supports Cooper's testimony, but also strengthens the case that Karl Rove had access to and knew that Valerie Wilson was a covert agent whose status was classified.

That is why the jury would likely hear, among other things, that Wilson's July 6, 2003 op-ed piece in the New York Times, which contradicted the administration's story about Saddam Hussein's search for yellowcake uranium ore in Niger, catapulted the administration into a frenzy of activity which appeared to have two overlapping goals. The first was the preparation of a CIA response to Wilson's revelations; the second, the undermining of Wilson's credibility. As New York Times columnist Frank Rich has so aptly described it, the eight days between the July 6 op-ed and Robert Novak's July 14 column outing Valerie Plame were characterized by "mounting desperation" on the part of the administration.

It is likely that only a fraction of what happened during that time has been made public, but the credible evidence that has been reported indicates that senior administration officials Rove and Libby were in close contact with each other, as well as with the State Department and the CIA, in order to carry out their two-pronged attack. The jury would likely hear evidence about their e-mail communications. The jury would also probably hear that, within 24 hours of publication of the Wilson piece, Secretary of State Colin Powell and White House Press Spokesman Ari Fleischer were seen holding a State Department memo requested by Deputy Secretary of State Richard Armitage on the day the Wilson op-ed appeared; that, when seen with the memo, Powell and Fleischer were on Air Force One with President Bush and National Security Adviser Condoleezza Rice on the way to Africa; that the State Department memo contained a paragraph about Valerie Wilson's work at the CIA marked "secret"; that on July 8th, Karl Rove talked about Valerie Wilson's work at the CIA with Robert Novak; that, at about the same time, another senior administration official told Robert Novak about Valerie Wilson's work at the CIA; that, on July 12, the day after Rove talked with Cooper, Lewis Libby, speaking "on background," told Cooper he "had heard" the information about Valerie Wilson's CIA status and possible involvement in sending Wilson to Niger; that, on the same day, a "senior administration official who was not Libby" told Washington Post reporter Walter Pincus that "Wilson's trip to Niger was set up as a boondoggle by his CIA-employed wife"; and that, just the day before on July 11, CIA Director George Tenet had taken the fall for the inclusion of the infamous 16 words that, inserted in the State of the Union Address, had started the whole ball rolling. So once Robert Novak published his story outing Valerie Plame and undermining Joseph Wilson on July 14, 2003, it would appear that the administration had achieved both of its goals. Hardly the work of "senior administration officials" who know not what they do.

If charges were brought, it would certainly be in light of this background evidence, and more (as they say on the infomercials) that a jury would be asked to decide whether a violation of the Intelligence Identities Protection Act had been proved. That jury would, of course, be free to draw whatever reasonable inferences it found appropriate based on this chain of circumstances.

Circumstantial evidence? Yes, contrary to popular belief, direct and circumstantial evidence have equal weight under federal criminal law. So one very strong permissible inference from the evidence of the administration's post-July 6, 2003 conduct could be that, given the damaging nature of the Joseph Wilson story and the urgency with which the State Department memo had been requested, it is impossible to believe that Powell simply tucked it into his briefcase and began watching an in-flight movie. Precisely who saw it or heard about its contents is not publicly known, but it is known that Lewis Libby and Karl Rove had been tasked to work with CIA Director George Tenet to craft the mea culpa Tenet would deliver on July 11 taking responsibility for those sixteen words in the State of the Union. As has been widely reported, their involvement can be proven by evidence of an intense exchange of e-mails between the two. It would be difficult to work on Tenet's statement without knowing about the information in the July 7 memo, as well as much other classified information about the Wilson trip, so it would not be unreasonable to infer that they too had been recipients of the information in that memo.

Whether charges will be brought under the Intelligence Identities Protection Act or, if they were, what a jury would decide, we cannot possibly know. But we do know that it is not a law under which guilt is nearly impossible to prove – as the pundits, citing each other, have led us to believe. It also bears mentioning that experienced prosecutors never underestimate juries. Most juries are like the special grand jury described by Matt Cooper: thorough, highly-engaged people who are absolutely committed to applying the law only to the evidence they have heard in court as they are instructed to do. They are not easily fooled. They have common sense. And they are firmly rooted in the reality-based community.

Tom Engelhardt [send him mail] is editor of TomDispatch.com, a project of the Nation Institute. He is the author of several books, including The Last Days of Publishing: A Novel and The End of Victory Culture. Elizabeth de la Vega has recently retired after serving more than 20 years as a federal prosecutor in Minneapolis and San Jose. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the U.S. Attorney's Office for the Northern District of California.