Baseball Crank
Covering the Front and Back Pages of the Newspaper
July 26, 2005
LAW: Innocent Until Proven Guilty

I had promised, in responding to this Mark Kleiman post on a potential prosecution of Karl Rove (or others) under the Espionage Act, to respond to this argument:

Surely Rove would have had "reason to believe" the identity of a CIA officer "could be used" to the injury of the United States or the advantage of a foreign nation.

As far as this law is concerned, it appears to be irrelevant whether Rove actually knew Valerie Wilson was "covert," because if he did not know whether she was covert or not, then he knew or would have reason
to believe that she might be covert, and that if she was, revealing her identity "could be used" against the United States. (See also the Secu[rit]y Clearance agreement Rep. Waxman noted last week.)

The various caveats in my last post apply here as well regarding the extent of my research and the uncertainty of the facts we now know, or think we know. I'm mainly discussing the law and its potential applications to different fact patterns.

On the more general point, I've already explained here and here why I disagree; in short, Plame's identity as a CIA employee was only problematic insofar as it had the potential to reveal current or prior covert status. It would clearly be relevant to a jury's determination of such an issue whether, for example, the manner in which someone like Rove learned of Plame's CIA employment; if he learned it from reporters, that would make it harder to prove that he had any reason to believe that the information was secret, closely held by the government and not to be divulged to reporters.

Before we go further, let's note what we're dealing with here: an effort to replace traditional criminal-law rules with a zero-tolerance approach to criminal law that acts on autopilot and shofts the burden of proof to the defendant. Recognizing the reality that this case would be very difficult to sell to a jury in light of all the (apparent) facts and circumstances, Kleiman and others pushing the scandal have consistently searched for ways to eliminate most of the facts from the picture and reduce the charges to a simple, strict-liability syllogism in which if the defendant said certain things to certain people, criminal intent is conclusively presumed, and jail follows without any need to examine who knew what and when, or what harms were foreseeable or actually followed from the disclosure.

And so, we get the latest such effort: the contention that Rove can be presumed in advance to have known Plame's covert status by virtue of having signed an SF-312 disclosure agreement (the agreement in PDF form is here; a letter from Henry Waxman pushing this theory, also in PDF form, is here).

Leon H has laid out some of the problems with applying the SF-312 as Waxman suggests, specifically the fact that it really doesn't give the signer any notice that any particular information was ever classified in the first place. The more basic problem is that use of this form simply proves too much: it would allow for a strict-liability approach to prosecutions that is directly at odds with the express language of the Espionage Act as enacted by Congress. As I noted in the first half of my post, the Espionage Act has a strict "willfulness" requirement. Presumably, everyone subject to potential prosecution under the Act has signed one of these forms. Now, I don't question that that would make the form relevant in every prosecution. But if Kleiman's and Waxman's argument is followed to its logical conclusion, the government would never again need to prove the willful disclosure required by the statute; it could just presume the guilt of the defendant as to one (and arguably the most critical) element of crime by pointing to a boilerplate form that made no reference to the particular information at issue in the case.

I am extremely skeptical that a court would accept such a reading of the SF-312's impact on the Espionage Act, and doubly so because courts have (as discussed in my prior posts) been concerned since the 1940s about the broad sweep of the Act and its chilling effects on public discourse. The Supreme Court, in Gorin v. United States, 312 US 19 (1941), held:

[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.

Gorin, 312 U.S. at 27-28 (emphasis added; footnote omitted). As I've noted before, the statutory intent requirement has been watered down a bit since then. But Gorin's holding should give pause to anyone seeking to bulldoze the existing intent requirement of the statute, as the Supreme Court and subsequent courts have stressed that that requirement is what keeps the statute from being found unconstitutionally vague. And that requirement is all the more necessary as the volume of classified information grows, as it inevitably does during wartime. A competent criminal defense attorney could easily argue that the statute, if construed as Kleiman and Waxman suggest, has eliminated that key safeguard and can not constitutionally be applied to criminalize any and all negligent disclosures of information that the defendant did not know or have specific reason to know were classified.

MORE: There's also been intermittent talk about perjury/false statements charges. Tom Maguire asks for help here, which I may get back to in part later. While such charges are always a concern in a large white-collar investigation of this nature, I have yet to see a credible explanation of what they would be. I certainly agree with Byron York that a mere difference in recollection of two witnesses is not enough to rest a perjury charge on, especially when the contemporaneus documents would appear to support Karl Rove's account and when the discrepancy is not material to the investigation. (And can we please not hear a peep from anyone who defended Clinton calling for prosecutions for perjury and obstruction? I mean, really). I'll get deeper into some of the elements when we have a little more tangible fact pattern to deal with. (As Maguire points out, none of the various discrepancies noted so far seem to amount to much).

Posted by Baseball Crank at 8:05 AM | Law 2005 | Comments (7) | TrackBack (0)
Comments

These extensive notes are interesting (truly) if a little cumbersome for quick reading for non-lawyers. However from a non-purely legal point of view it seems clear that whether Rove can be prosecuted under the variety of statutes and laws mentioned is less the point than to what it mean that he antually made the disclosures he apparently made. I would think that it would be almost impossible to prosecute him given the nature of the (alleged) offense.

First off we can certainly assume that whatever he reveals about his actions, knowledge or intentions regarding this matter is likely a huge lie. He is a known liar with a long resume of lying/disorting the facts, etc. Any conviction would almost have to be based upon his willingness to incriminate himself. Clearly that is not going to happen.

Second, you can argue about V.P. all you want and whether she was covert enough but the fact of the matter is that she was running a covert operation in part to identify purchasers/potential purchasers of WMDs and in part to identify the flow of illegal/laundered money associated with WMDs.

Third, the wildly false and known to be false (at the time) statement Bush made during the State of the Union ties back to her through her husband. In this Admin where every infraction against those in charge is absolutely punished 100% of the time the idea that Rove did not know exactly who V.P. was is absurd. Can you prove he did know? Of course not because the only way you could would be by his own testimony. Even though there are memos that he likely would have seen detailing her operation he can simply say he never saw them.

This is classic Bush Admin crap. There will never be any way to prove in the eyes of our legal system that Rove intentionally did this. No one is going to out him in the Admin, the stuff provided by Novak and Cooper is he said/she said stuff at best and while it is pretty easy to connect the dots knowing how flipping insidious this Admin, especially Rove, is it is an excercise in futility that, at best, will be thrust into the level of conspiracy theory by anyone and everyone who supports him simply because of who he is.

While the prosecutor on this is apparently quite good at his job this would seem to be a huge waste of money (not that this gov't is opposed to that) that will lead to nothing other than Rove being found Not Guilty or the case being dropped or dismissed. I am not one for letting go of stuff but this, as a legal case, is a smelly dog.

Posted by: jim at July 26, 2005 5:21 PM

1. Agreed that the legal stuff is to some extent a red herring in this argument, but it's where I can provide some expertise, and people like Kleiman are pushing it, so I responded.

2. [S]he was running a covert operation

Well, Bush and Cheney are in charge of all sorts of secret things. The issue is what was compromised by identifying her. Certainly she can still be a Langley-based analyst.

3. wildly false and known to be false (at the time) statement Bush made during the State of the Union

Well, we're gonna disagree on that one. Check the Butler Report.

4. the idea that Rove did not know exactly who V.P. was is absurd

Know what her job was, or what her job had been? Big difference.

Posted by: The Crank at July 26, 2005 6:13 PM

"At issue, of course, were 16 words in the President's State of the Union Address last January. This address on January 28 included the following statement by the President of the United States:

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa...

I have said and repeated, there is no evidence or indication that President Bush knew this statement was wrong--none."

Sen. Dick Durbin (D-Ill.)

http://www.factcheck.org/article222.html
"Two intelligence investigations show Bush had plenty of reason to believe what he said in his 2003 State of the Union Address."

Not every one disagrees that it was untrue and most certainly not that Bush lied.

On the other hand, there's plenty of evidence that the critical point Wilson made in his op-ed piece was unsupportable:

"If my information was deemed inaccurate, I understand (though I would be very interested to know why). If, however, the information was ignored because it did not fit certain preconceptions about Iraq, then a legitimate argument can be made that we went to war under false pretenses."

The information wasn't ignored because "it did not fit certain preconceptions". According to the Senate Intelligence Committee and other sources, the CIA found it added little new information and didn't brief anyone on it or include it in their analysis. Since it wasn't true that Wilson's opinion was ignored, he can't say there was a legitimate argument we went to war under false pretenses, not from that fact anyway. If he wants to make the case we did from other evidence, he should, but not just because he was ignored.

Of course, it should be an embarrassment to Wilson that he asked to know if his information was false, and having learned that it was, never bothered to withdraw the accusation he made.

Posted by: Strick at July 26, 2005 9:42 PM

It would seem that compromising an operation designed to find purchasers of WMDs and how they launder money to acquire them in our big war on terror would be a big deal. She clearly had a network of associates around the world that would be compromised (at the very least potentially) and exposed to, well, bad things.

Trying to sell that Rove did not know specifically who she was and what she did doesn't fly. I'm not saying I or anyone else can prove it but the idea that THAT guy did not know exactly what he was doing to whom he was doing it and for what reasons is ignoring the reality of who Karl Rove is and what he is in the Bush Admin for.

I don't think a trial or much more of an investigation is worthwhile because the end result will essentially be nothing. The notion that he has come clean about his involvement or that he ever will is a GOP fantasy. He will always have pausible deniability about most of the issues regarding this and that is what will be trumeted. Again it is classic Rove/Bush style crap. He's a liar that knew what he was doing to crap out someone based on political motives and now he gets to lie about what he did and what his intentions were. And we get to pay him to do it.

Posted by: jim at July 27, 2005 2:15 PM

Dear Crank,

We couldn't tell it our earlier comments came through. We applauded you on our site for bashing the Springsteen bashers (tremendous article) but had to strongly disagree with you on Karl Rove, noting the following,

"We replied earlier today to the Baseball Crank, who, despite our respect for his musical and athletic taste and his web site generally, wrote a legal analysis of the Rove scandal that was both wrong and simply missed the point. We took the Crank up on his challenge and asked him to put legalities aside and opine on whether Karl Rove is corrupt and, legalities aside, should get the boot noting,

"As a blog that believes Clinton perjured himself and should have been impeached (even if the whole thing related only to personal matters) ; put bluntly, your post [defending Rove] sounds like something that could have been generated by Bill Clinton's legal team. Surprisingly, we're hearing the same kind of besides-the-point excuses and apologias from people on the right wing who were craving Clinton's petard. All hypocrites....

But how about ethics, objectivity and integrity. Rove's actions, as you understand them, merit immediate termination from his job, no? If you can't answer affirmatively to that its clear that your legal analysis is more apologia and your no worse than the Clinton defenders you rightfully took a poke at."

We have yet to hear from the Crank but look forward to a response. On a positive note, we loved and applauded the Crank's piece "Dissing the Boss" about misguided Springsteen bashers.

Posted by: reliantmedia at July 28, 2005 10:24 AM

The argument over whether the SF-312 can be used to fulfill the scienter requirements of the Espionage Act is ovah.

http://news.findlaw.com/nytimes/docs/dod/usfrnklin80205ind.pdf

Methinks that the Plame indictments will read similarly.

Posted by: Geek, Esq. at August 5, 2005 2:15 PM

Geek,

Let me suggest that you actually read that indictment, esp. in view of Crank's comments. Count 1, Conspiracy, listed 52 separate overt acts. A second Conspiracy count, #5, listed 19 overt acts. The other three counts are for three specific instances of Communication of National Defense Information. But note there that the scienter requirement that Crank has spent so much time on is specifically listed in all three. And, the facts of this case are far, far, less murky than in the Plame/ Wilson/ Rove/ Libby affair. Indeed, I think that the 71 Overt Acts listed in Counts 1 and 5 would go a long way in proving the scienter requirement for Counts 2-4. In Plame, et al., you have potentially the disclosure on one fact to a limited number of people over a short period of time. Not 71 different facts over a period of months.

Posted by: Bruce Hayden at October 22, 2005 9:36 AM
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