Espionage and Rove, Revisited

Mark Kleiman reasserts his contention that Karl Rove could and should be prosecuted under the Espionage Act, a position I have greeted with some skepticism here and here. Kleiman challenges me to respond to his post; I accept that challenge. First, however, a few preliminaries:
1. Kleiman and I are not as far apart as we may at first appear on this point. I agree with him that the text of the Espionage Act and the caselaw under the statute make clear that it covers leaks to the press, not just disclosures directly to foreign governments. I also agree that, given how broadly the statute is written, if the facts are something like what we have been told (a point I’ll get to in a minute), a creative and aggressive prosecutor could finagle an indictment against Rove and possibly many other of the government and media figures involved here. And such an indictment might even succeed in surviving a motion to dismiss.
(A word on motions to dismiss: at the motion to dismiss stage, you ask the Court to throw the case out on the theory that even if everything in the indictment is true, the government hasn’t alleged the elements of the crime. Unlike in the context of civil lawsuits, such motions are rarely granted, because the government does not need to lay out the facts in the same detail that a civil plaintiff often must).
Most prosecutors, however, prefer to bring indictments only when they have sufficient evidence for a conviction, not just a creative legal theory to get them an indictment. (Sadly, this isn’t true of all prosecutors, but most). My analysis assumes that Rove won’t be indicted if the obstacles to a conviction, and affirmance of that conviction on appeal, would appear to a reasonable prosecutor to be prohibitive.
2. I’m glad to see that Kleiman has taken to heart my caution about the hazards of reading statutes without reference to the caselaw. As I noted in my last post on this topic, my own examination of the caselaw here is not necessarily complete, and I would look deeper into this question if I was representing a client facing exposure under the Espionage Act.
3. I caution again that we don’t know all the facts – and we probably “know” some facts that aren’t true. Way too many people on the Right and on the Left are leaping to conclusions based on incomplete, selective and probably self-serving leaks from anonymous sources. I refuse to get into an argument about the facts at this juncture. Still, often in the law you have to start mapping out your defenses before you know all the facts, and so I will discuss some of the possible factual angles based on the latest reports as I understand them, with attention to what factual issues are likely to be particularly problematic for the prosecution. To quote Albus Dumbledore, from the lastest Harry Potter book: “From this point forth, we shall be leaving the firm foundations of fact and journeying together through the murky marshes of memory into thickets of wildest guesswork.”
To summarize my prior posts, which you should read before you get into this tangle, the three principal issues in an Espionage Act prosecution would be (1) whether the disclosed information was “information relating to the national defense”; (2) whether the person making the disclosure “ha[d] reason to believe” that the disclosed information “could be used to the injury of the United States or to the advantage of any foreign nation”; and (3) whether the person making the disclosure nonetheless “willfully communicates. . . the [information relating to the national defense] to any person not entitled to receive it”.
Let’s walk through the analysis provided by Kleiman (I’ll refer to this as his analysis, although it is passed on to him by a reader) and keying off the Fourth Circuit’s 1988 opinion in United States v. Morison:

Based on statements by Matthew Cooper and Rove’s lawyer Donald Luskin we know that on July 8, 2003, Rove possessed information relating to the national defense, specifically the fact that “Joseph Wilson’s wife works for the CIA on weapons of mass destruction issues.”

We part company almost immediately. I know of no reason why Plame’s identity as a CIA analyst would satisfy the statutory requirement of “information relating to the national defense”, and Kleiman doesn’t explain why it would. On the other hand, if she had been a covert agent recently enough that the disclosure of her identity would compromise covert intelligence-gathering sources, that would likely satisfy the requirement. Where we appear to currently stand is the gray area that would leave two questions to the jury: whether disclosing her identity as an analyst was “relat[ed] to the national defense” because (a) it would inevitably lead to revelation of her prior covert status and (b) whether her prior covert status was sufficiently recent and/or sufficiently connected to ongoing operations that that covert status was still “relat[ed] to the national defense”.
(Was Plame still a covert agent, or very recently returned from being one? I have no way of knowing, but I’ve seen nothing to suggest that).
Also, an aside: it would be funny if Rove’s lawyer was Don Luskin, but he’s a different guy.

Not saying Wilson/Plame’s actual name is irrelevant if Rove identified her as a CIA officer – by informing Cooper that Wilson’s “wife” worked for the CIA, Rove was identifying Valerie Wilson/Plame – Wilson’s wife – as a CIA officer.

In general, I would agree with this. Plame’s identity would lead quickly to her name, especially since (a) Joe Wilson had been an ambassador and thus was likely a known figure in international circles and (b) her name was on his online bio. On the other hand, to the extent that her CIA identity was known around DC and only more publicly broadcast when Bob Novak put it in the newspaper, the addition of the name does add to the government’s proof that “this wasn’t just public information,” and that proof would look weaker to the jury if the name wasn’t used.

Rove’s lawyer’s statements, Matthew Cooper’s statement about what he told the grand jury, and the email from Cooper to his editors at Time show that Rove “willfully communicate[d]” the identity of a CIA officer to a reporter.

In this context, “willfully” means “intentionally,” that is, Rove was not forced to communicate the information, and he did not communicate the information while talking in his sleep – he intentionally communicated the information, he intended for Cooper to receive the information, and therefore he “willfully communicated” the information.

(Emphasis added). This is where we disagree completely on the law. What Kleiman has quoted here is the standard for acting “knowingly” or “intentionally”. But the statute says “willfully,” and in a criminal statute, that means more than just conduct that is non-accidental, or even conduct that is negligent; it means that the government must prove beyond a reasonable doubt that the defendant knew he was breaking the law. As the United States Supreme Court explained in Bryan v. United States, 524 U.S. 184 (1998):

As a general matter, when used in the criminal context, a “willful” act is one undertaken with a “bad purpose.” In other words, in order to establish a willful violation of a statute, “the Government must prove that the defendant acted with knowledge that his conduct was unlawful.”

[snip]

With respect to the . . . categories of conduct that are made punishable by [the statute discussed in Bryan] if performed “knowingly,” the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that “an evil-meaning mind” directed the “evil-doing hand.” More is required, however, with respect to the conduct in the fourth category that is only criminal when done “willfully.” The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.

(citation and footnote omitted). See also 1 Sand et al., Modern Federal Jury Instructions – Criminal, Instruction No. 3A-3, at 3A-16 (2000) (jury should be instructed, “‘Willfully’ means to act with knowledge that one’s conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law.”). And bear in mind that Bryan was describing the more lenient of the two types of “willfulness” the government is required to prove; in some heavily requlated areas, the Supreme Court has required proof that the defendant knew he was violating the specific statute he was indicted under.
Moreover, as I noted in my prior post on the subject, this is precisely how the jury was actually instructed in the Morison case as well as previous prosecutions under the Espionage Act, instructions that were expressly approved by the Fourth Circuit and would likely be given here:

All four of these counts as I have referred to them in my description of them to you used the word wilfully. An act is done wilfully if it is done voluntarily and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law. With respect to the offenses that are charged in the indictment specific intent must be proved beyond a reasonable doubt before a defendant can be convicted. Specific intent, as that term suggests, requires more than a general intent to engage in a certain conduct. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids. It is the government’s burden to present affirmative evidence of the required unlawful intent. Again, in determining whether or not the intent existed you may look at all the facts and the circumstances involved in the case.

Morison, 844 F.2d at 1071 (emphasis in original). Indeed, given the breadth of the Espionage statute, the Supreme Court and later courts have emphasized that the main reason for finding the Act not to be unconstitutionally vague is its stringent requirement of criminal intent.
If – as appears quite possible from the things we’ve thus far been told – Rove didn’t know that he was dealing with the identity of a covert agent, and received the information not from classified sources but from one or more reporters, the prosecution would be saddled with an almost impossible task in convincing a jury* that Rove knew he was illegally disclosing classified information.
It should not be overlooked that the Morison case involved starkly different facts as far as the defendant’s knowledge that he was trafficking in classified information: the defendant, an experienced naval intelligence officer, worked in a “vaulted” workspace (i.e., only people with “Top Secret” security clearance allowed); he had already clashed with his employers over his side job working for Jane’s Defence Weekly; he pilfered from someone else’s desk satellite photos of a Soviet naval installation; he cut off the parts of the photos warning that they were “Top Secret”; and, when confronted by investigators, he falsely denied any involvement in sending the photos. In short, Morison provides no support whatsoever for Kleiman’s syllogictic reading of the statute as supporting a conviction for mere negligence in the handling of information that could lead to the disclosure of classified information.
Unfortunately, I’m out of blogging time for the morning, so I’ll come back to Kleiman’s third point later, including the related issue of whether the burden of proof could be shifted to the defendant in an Espionage Act prosecution on the basis of having executed an SF 312 Non-Disclosure Agreement (also discussed here by Leon H). On his fourth point:

A reporter for TIME Magazine is surely “not entitled” to receive classified information regarding the identity of a CIA officer.

We are in agreement.
*- A Virginia jury, anyway. A DC jury might be another matter.