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).