Daily Archives: October 11, 2003

Dean on Plame

John Dean’s column on FindLaw is an excellent summation of the Plame Affair and the potential legal trouble it could portend for the WH. It’s a bit lawyerly, though not at all unreadably so, in the sense that it follows the sequence of events closely and ties them together so the pattern is clear. For that reason, I can’t excerpt and do it justice, as each piece gathers force in the context of the pieces in front of and behind it, but his conclusion is a bit startling: rather than seizing on the law which makes it a crime to publish the name(s) of serving ops (the so-called “Philip Agee Law”) as everyone else has, Dean suggests that the WH’s biggest danger may lie in the conspiracy statutes, particularly those concerned with fraud:

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 added.) 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.

So merely condoning the leak could make Rove part of the “conspiracy” to exploit it, and legally it doesn’t matter in that instance whether he was the one who made the calls or not. In fact, everybody who played any part in this, their ass is up for grabs, too, if they didn’t speak out against it.

That’s the genius of this law–it puts everybody involved into a race to see who can “out” the perp first, thus c’ing their own a’s by aiding the investigation.

I think Dean may be right. Karl. Baby. Got a reall-ly good criminal lawyer yet?

The DoJ’s Double Standard

Matt Bivens over at The Daily Outrage has pointed out a rather startling comparison re the treatment of two different reporters by the Justice Dept:

They [the JD–m] imprisoned Vanessa Leggett, a novice crime writer who had researched a Houston society murder prosecutors felt confident they had sewn up — only because Leggett refused to surrender her notes and sources when the government demanded them. Leggett had promised otherwise — and it’s a journalist’s perogative not to reveal sources who quietly have agreed to share truths and information. So the Feds threw her in jail. With John Ashcroft looking on in stony silence, and ignoring letters and pleas from First Amendment advocates, the president’s legal geniuses kept her there for a record-breaking 5 and 1/2 months. During this period, the United States joined Cuba as the only other nation in the Western hemisphere to hold a journalist in jail over their work.So if they play that kind of hardball when the stakes are so low, one would expect real fireworks when the stakes are as high as a White House operative destroying a CIA agent. Right?

Nah. President Bush says we’ll probably never get around to figuring out who in his Administration used Robert Novak and others to unmask the agent-wife of one of his critics. (And “used” is the operative word here — which is precisely why Novak ought to feel free to reveal his source. We journalists protect sources for giving us information; we do not have the right or privilege or obligation to protect them when they’ve used us to commit a crime.)

Moral: If you don’t want to get locked up, report only what Ashcroft’s Neocon Justice Dept wants you to report. (And try to arrange to be Scooter Libby’s buddy, too; obviously, that helps.)