Friday, July 22, 2005

Can the "S" Show Intent?

News reports on the Valerie Plame leak investigation are raising interesting questions about a possible perjury case involving witnesses who testified before the grand jury.  A Bloomberg article (here) notes that I. Lewis Libby, chief of staff for the Vice President, testified that he learned about Plame's CIA role from NBC's Tim Russert, but Russert apparently denied telling Libby about Plame's identity.  Karl Rove, Deputy Chief of Staff to the President, testified that he learned about Plame from columnist Robert Novak, but according to Bloomberg a source states that Novak "has given a somewhat different version to the special prosecutor."  The exercise in figuring out where all this started is complicated by New York Times reporter Judith Miller's refusal to testify, and she may have information that could exculpate one or both administration officials.  That makes Special Counsel Patrick Fitzgerald's investigation all the more difficult if his office cannot line up the different stories to at least figure out who is pointing the finger at whom.

The leak investigation requires Fitzgerald's office to figure out when information about Plame's CIA status was revealed before Novak published his article.  A Washington Post story (here) discusses the memorandum provided to then-Secretary of State Powell that included a couple sentences about Plame with an "S" notation, indicating that the information about her was secret.  If the information about Plame was passed among senior administration officials, that might clear up the source of the information and, more importantly, provide a basis for establishing that the person who revealed the information had knowledge of her covert status.  Regarding any prosecution for the actual leak under 50 U.S.C. ยง 421, as opposed to perjury, the intent level is fairly high -- knowledge -- and showing only access to the memorandum might not be enough to prove that intent (see earlier post here).

According to Rove's attorney, he did not see the memorandum until the Special Counsel's office showed it to him.  Actual review of the memorandum may not be required under Sec. 421(b), which states: "Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than five years, or both."  Unlike subsection (a), which requires proof of that the person "had authorized access to classified information that identifies a covert agent," this provision only requires that the person have authorized access to classified information that results in the disclosure, but not necessarily to the specific information identifying the covert agent.  Of course, the knowledge element would be difficult to establish if the government's proof was simply stories that conflicted.

In addition to the Washington Post, the Wall Street Journal has discussed the content of the memorandum.  What is not clear from the stories is the source of the memo, whether it came from the Special Counsel's office or some place else.  Given that it appears to have been the subject of grand jury testimony, it is at least arguably grand jury material protected from disclosure by Federal Rule of Criminal Procedure 6(e), although the Rule is notoriously vague about what constitutes "a matter occurring before the grand jury."  Any disclosure by the Special Counsel's office could be a violation of the Rule, and as an internal government document one would expect that it would be confidential.  But then, in a case about leaks, it's not surprising that there have been an awful lot of leaks -- this is Washington, D.C., after all, where leaking is a high art form. (ph)

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