Monday, July 18, 2005
The investigation by Special Counsel Patrick Fitzgerald of the leak to the press of the identity of Valerie Plame as a CIA covert agent (assuming she was in fact one at the time) is beginning to take on the appearance of the old Abbott and Costello "Who's On First?" routine. Did Karl Rove learn from Robert Novak the covert status of Ambassador Wilson's wife before speaking with Time reporter Matthew Cooper? Did a memo to Colin Powell contain that information? Did New York Times reporter Judith Miller learn about Plame's CIA role from I. Lewis Libbey, the Chief of Staff to Vice President Cheney? Or, did Miller tell Libby about Plame? Does anyone have a headache yet?
To this point, it appears that everyone is pointing a finger at someone else regarding who first disclosed Plame's status with the CIA, and Fitzgerald may never get a straight answer. What is interesting to me has little to do with this "follow the bouncing ball" aspect of the investigation, but instead I think the grand jury aspects of the case are much more intriguing. First, where is the grand jury material coming from? If the witnesses themselves are discussing their testimony, then they are free to say anything they wish because the grand jury secrecy rule does not apply to them. Indeed, one's grand jury testimony can be used to sell more magazines, as Cooper is doing (see Time press release here touting its "exclusive" story). Whether their statements are in fact an accurate reflection of the testimony in the grand jury is another issue, but then lying to the press is not a criminal offense -- otherwise, no one could serve as a press secretary to an elected official.
Second, as Fitzgerald has more witnesses testify before the grand jury, it appears that his office is likely to be looking at possible perjury charges. 18 U.S.C. Sec 1623(a) (here) provides:
Whoever under oath . . . in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.
For a successful perjury charge, the government must first prove the falsity of the statement, which presents a substantial hurdle in light of the Supreme Court's decision in U.S. v. Bronston, 409 U.S. 352 (1973), which held that a perjury charge cannot be brought for a "literally true" statement. Bronston involved a bankruptcy examination in which the following questioning of Bronston took place regarding overseas bank accounts:
Q: Do you have any bank accounts in Swiss banks, Mr. Bronston? A: No, Sir. Q: Have you ever? A: The company had an account there for about six months, in Zurich.
Bronston in fact had a personal account in Switzerland, and his answer to the questions was evasive, and likely misleading, but was not untrue (although try this defense on a loved one and see whether the "literal truth" defense works). A perjury charge cannot be brought for an unresponsive answer because it is not false, and according to the Court "[a]n unresponsive answer is unique in this respect because its unresponsiveness by definition prevents its truthfulness from being tested in the context of the question . . . ." To the extent any grand jury testimony in the Plame investigation can be construed as literally truthful -- and the more tentative the better for the witness ("As I recall" and "I believe") -- then a charge cannot be brought against the witness because in most cases ambiguity will be construed in favor of the defendant (for a slightly different approach on this issue, check U.S. v. DeZarn, 157 F.3d 1042 (6th Cir. 1998)).
Outside of the grand jury, the various government officials involved in the investigation likely spoke with investigative agents, and those statements could be subject to 18 U.S.C. Sec. 1001(a), which provides:
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation, or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement . . . .
Courts have tended to take the same approach to Sec. 1001 as they do to perjury, requiring that the statement actually be false and not literally true even though the language of the statute references fraudulent statements, which seems to cover more than just untruthful assertions (although an "exculpatory no" is not allowed). An interesting question would be whether a false statement to the President about one's involvement in contacts with the press would be subject to a Sec. 1001 charge. For an excellent review of the different statutes in this area, see Stuart Green's article, Lying, Misleading, and False Statements: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements, 53 Hastings L.J. 157 (2001) (available on SSRN here).
Finally, a Washington Post story (here) discusses consideration being given by Fitzgerald's office to seek a criminal contempt of Miller for her refusal to comply with the district court's order to testify before the grand jury. The contempt statute, 18 U.S.C. Sec. 401(3) )(here), provides:
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as — . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
The contempt statute does not have a maximum penalty, although a jury trial is required if the court imposes a sentence of greater than six months on the contemnor. The criminal contempt would come on top of the civil contempt order which has sent Miller to jail in Alexandria, VA, until the grand jury expires in October (assuming it's not extended, of course).
Who's on first, What's on second, and I Don't Know's on third. (ph)