GADFLY: Handicapping the Plame Game

I’m getting tired of all the uninformed speculation in the
media (mostly by journalists trying to practice law) about the possible crimes
implicated in the Plame/CIA leak investigation. So now, 2 ½ years after the
contestants have broken from the starting gate, as they approach the turn, ready
to head into the stretch, here are the odds on the possible scenarios when they
break the indictment finish wire:

First, a catalogue of potential criminal charges:

1. The Intelligence Identities Protection Act of 1982
(50 U.S.C. §421): This is the one that started everyone buzzing when the
leak of Valerie Plame’s identity was first disclosed by Bob Novak in 2003, and
remains the favorite choice of the apologists for the leak, and critics of the
investigation, for obvious reasons: it would be the hardest of all the potential
criminal violations in this case to prove. It requires not only that the person
who leaks the identity of a covert agent be authorized to have the information
(something which, despite speculation, it is far from certain either Rove or
Libby—the likely suspects—had at the outset), but it also requires that they
intentionally (and not just knowingly) revealed that information.
Furthermore, it requires that they knew the covert status of Joseph Wilson’s
wife (and the mere fact she “worked for the agency” might not be enough), and
that they knew the U.S. had taken steps to protect her identity.  And, even
though the memo that was circulated aboard Air Force One had her listed as a top
secret (“NF”, for “no foreign”) operative, it is still safe to say this law is
not likely to be Fitzgerald’s go-to violation in this case. Odds: longshot.

2. Theft of Government Information (18 U.S.C. §641):
Classified or not, covert or not, intentionally or not, there can be no denying
that the information about Plame (which included information she was working on
WMD at the CIA) was sensitive government information, meaning for the
government’s use and purposes. We know that from the Matt Cooper “double super
secret background” conversation he acknowledges having with Rove in his
now-disclosed e-mails to his bosses at Time.

While the precise language of this statute seems, on its
surface, ill-suited to what Rove and Libby may have done, there is precedent for
its use for that purpose. The Reagan administration used the statute to
prosecute the leak by a civilian analyst in Navy Intelligence of a classified
satellite photos of a Soviet nuclear-powered aircraft carrier under construction
to a British-based publication. The conviction raised howls in the media (and
prompted innumerable  press “friend of the court” briefs when the conviction was
appealed to the Fourth Circuit). The media, of course, saw their source of
government leaks drying up, and didn’t like it. The conviction, though,  was
upheld.

The Bush administration also used the statute to prosecute
a DEA agent for leaking the name of a prominent British citizen as coming from
the DEA’s files., the implication being that he had something to do with money
laundering. When the leak was traced to to the DEA agent,  the government
indicted him for, among other things, the theft of government information.
ODDS: much better than even.

3. The Espionage Act (18 U.S.C. §§793, 798): The two
sections of the act, “transmitting defense information,” and “disclosing
classified information,” also have their precedents, and don’t have anywhere
near the tooky requirements of the “identities protection act.” The DEA leaker
was also prosecuted under this statute. Of all the crimes that address the
information in the case (i.e., Plame’s status), this is the easiest one to
satisfy. ODDS: better than even.

Now for the garden variety violations:

4. False Statements in Any Government Matter (18
U.S.C. §1001): This is probably the most important, and potent, of the federal
“fraud/deceit” statutes. It’s the one that caught Martha Stewart, and the one
every government agent warns the subject of any interview not to violate. This
is the one that will ensnare anyone in the Plame investigation if they lied,
concealed or covered-up anything in their dealings with the FBI. It’s also the
one that may trap Rove, Libby and possibly Judy Miller when it comes time to pay
for “faulty” memories, and for newly “discovered” documents. ODDS: lead pipe
cinch.

5. Perjury (18 U.S.C. §1621): This one speaks for
itself, but even it has twists and turns. It requires “willful” testimony to
something the witness “did not believe to be true, which is not easy. The
corollary to the perjury statute that applies to grand jury proceedings is False
Declaration Before Grand Jury (18 U.S.C. §1823). ODDS: possible, but not
likely.

6. Conspiracy: 18 U.S.C. §371 Another catchall, this
statute has a rich history (Watergate the most notable forebear in its
pedigree). It only requires that two or more people conspire to commit any
offense against the U.S., and that one or more of them take action to effect the
purpose of the conspiracy. Here, the offense could be one of the previously
mentioned national security-related laws, or it could be something broader, like
fraud, or something arising from the investigation itself.  ODDS: Pretty damn
good.

7. Obstruction of Justice (18 U.S.C. §1510): This is
the one that’s being bandied about, mostly by the press, probably because it
sounds the sexiest. This is a crime which usually requires more than one person
(like the conspiracy statute), although it can be a first-person crime, as it
was in the Arthur Anderson, Enron-related conviction for destruction of
documents. In other words, it’s not an obstruction of justice if Rove, et al. ,
in their own dealings with the FBI, the special prosecutor or even the grand
jury, said or did (or didn’t say or do) something they should or shouldn’t have.
In order for them to have obstructed justice, they would have had to “willfully
endeavor, by means of bribery, to obstruct, delay, or prevent the communication
of information relating to a violation of any criminal statute of the United
States by any person to a criminal investigator.” That, as you can see, is quite
limited. There are other statutes, including witness tampering and the like,
that might be applicable as well, but they all require an actor, and someone who
has been acted upon as well. ODDS: Next to none.

8. Mail Fraud/Wire Fraud (18 U.S.C. §1343): This
one’s so all-inclusive, it’s the one that’s used when all else fails. All that’s
required to violate the mail/wire fraud statute is a “scheme or artifice to
defraud,” which in this case would be defined as depriving the government of the
faithful and honest services of its employees (i.e., Valerie Plame).
For those interested in the bottom line on all this,  every
statement, appearance, phone call, e-mail or other action in violation of any of
these statutes would qualify as a separate count of an indictment, each of which
would qualify for the mandated sentence, ranging from a low of 5 years
imprisonment to as much as 20. Here they come!

(Marty Aussenberg is a veteran both of the legal profession and of federal service, where he was an enforcement officer with the Securities and Exchange Commission.

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