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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.

Posted by thorswitch at October 10, 2003 08:24 PM

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