It doesn't look good for Karl Rove
By John Dean
FindLaw Columnist
Special to CNN.com
(FindLaw) -- As the scandal over the leak of CIA agent Valerie Plame's
identity has continued to unfold, there is a renewed focus on Karl Rove --
the White House deputy chief of staff whom President Bush calls his political
"architect."
Newsweek has reported that Matt Cooper, in an e-mail to his bureau chief at
Time magazine, wrote that he had spoken "to Rove on double super-secret
background for about two min[ute]s before he went on vacation ..." In that
conversation, Rove gave Cooper "big warning" that Time should not "get too far out on Wilson."
Rove was referring, of course, to former Ambassador Joe Wilson's
acknowledgment of his trip to Africa, where he discovered that Niger had not, in
fact,provided uranium to Iraq that might be part of a weapons of mass destruction
(WMD) program.
Cooper's email indicates that Rove told Cooper that Wilson 's trip had not
been authorized by CIA Director George Tenet or Vice President Dick Cheney;
rather, Rove claimed, "it was ... [W]ilson's wife, who apparently works at the
agency on [WMD] issues who authorized the trip." (Rove was wrong about the
authorization.)
Only the special counsel, Patrick Fitzgerald, and his staff have all the
facts on their investigation at this point, but there is increasing evidence that
Rove (and others) may have violated one or more federal laws. At this time, it
would be speculation to predict whether indictments will be forthcoming.
Identities Protection Act
As I pointed out when the Valerie Plame Wilson leak first surfaced, the
Intelligence Identities And Protection Act is a complex law. For the law to apply
to Rove, a number of requirements must be met.
Rove must have had "authorized access to classified information" under the
statute. Plame was an NCO (non-covered officer). White House aides, and even the
president, are seldom, if ever, given this information. So it is not likely
Rove had "authorized access" to it.
In addition, Rove must have "intentionally" -- not "knowingly" as has been
mentioned in the news coverage -- disclosed "any information identifying such a
covert agent." Whether or not Rove actually referred to Mrs. Wilson as
"Valerie Plame," then, the key would be whether he gave Matt Cooper (or others)
information that Joe Wilson's wife was a covert agent.
Also, the statute requires that Rove had to know, as a fact, that the United
States was taking, or had taken, "affirmative measures to conceal" Valerie
Plame's covert status. Rove's lawyer says he had no such knowledge.
In fact, there is no public evidence that Valerie Wilson had the covert
status required by the statute. A covert agent, as defined under this law, is "a
present or retired officer or employee" of the CIA, whose identity as such "is
classified information," and this person must be serving outside of the United
States , or have done so in the last five years.
There is no solid information that Rove, or anyone else, violated this law
designed to protect covert CIA agents. There is, however, evidence suggesting
that other laws were violated. In particular, I have in mind the laws invoked by
the Bush Justice Department in the relatively minor leak case that it
vigorously prosecuted, though it involved information that was not nearly as
sensitive as that which Rove provided Matt Cooper (and possibly others).
Leak prosecution precedent
I am referring to the prosecution and conviction of Jonathan Randel. Randel
was a Drug Enforcement Agency analyst, a Ph.D. in history, working in the
Atlanta office of the DEA.
Randel was convinced that British Lord Michael Ashcroft (a major contributor
to Britain 's Conservative Party, as well as American conservative causes) was
being ignored by DEA and its investigation of money laundering. (Lord Ashcroft
is based in South Florida and the off-shore tax haven of Belize .)
Randel leaked the fact that Lord Ashcroft's name was in the DEA files, and
this fact soon surfaced in the London news media. Ashcroft sued, and learned the
source of the information was Randel. Using his clout, soon Ashcroft had the
U.S. attorney in pursuit of Randel for his leak.
By late February 2002, the Department of Justice indicted Randel for his
leaking of Lord Ashcroft's name. It was an eighteen count "kitchen sink"
indictment; they threw everything they could think of at Randel. Most relevant for Karl
Rove's situation, count one of Randel's indictment alleged a violation of
Title 18, United States Code, Section 641. This is a law that prohibits theft (or
conversion for one's own use) of government records and information for
non-governmental purposes. But its broad language covers leaks, and it has now been
used to cover just such actions.
Randel, faced with a life sentence (actually 500 years) if convicted on all
counts, on the advice of his attorney, pleaded guilty to violating Section 641.
On January 9, 2003, Randel was sentenced to a year in a federal prison,
followed by three years probation. This sentence prompted the U.S. attorney to
boast that the conviction of Randel made a good example of how the Bush
administration would handle leakers.
Precedent bodes ill for Rove
Rove may be able to claim that he did not know he was leaking "classified
information" about a "covert agent," but there can be no question he understood
that what he was leaking was "sensitive information." The very fact that Matt
Cooper called it "double super-secret background" information suggests Rove
knew of its sensitivity, if he did not know it was classified information (which
by definition is sensitive).
United States District Court Judge Richard Story's statement to Jonathan
Randel, at the time of sentencing, might have an unpleasant ring for Rove.
Judge Story told Randel that he surely must have appreciated the risks in
leaking DEA information. "Anything that would affect the security of officers and
of the operations of the agency would be of tremendous concern, I think, to
any law-abiding citizen in this country," the judge observed. Judge Story
concluded this leak of sensitive information was "a very serious crime."
"In my view," he explained, "it is a very serious offense because of the risk
that comes with it, and part of that risk is because of the position" that
Randel held in DEA. But the risk posed by the information Rove leaked is
multiplied many times over; it occurred at a time when the nation was considering
going to war over weapons of mass destruction. And Rove was risking the identity
of, in attempting to discredit, a WMD proliferation expert, Valerie Plame
Wilson.
Judge Story acknowledged that Randel's leak did not appear to put lives at
risk, nor to jeopardize any DEA investigations. But he also pointed out that
Randel "could not have completely and fully known that in the position that [he]
held."
Is not the same true of Rove? Rove had no idea what the specific consequences
of giving a reporter the name of a CIA agent (about whom he says he knew
nothing) would be--he only knew that he wanted to discredit her (incorrectly) for
dispatching her husband to determine if the rumors about Niger uranium were
true or false.
Given the nature of Valerie Plame Wilson's work, it is unlikely the public
will ever know if Rove's leak caused damage, or even loss of life of one of her
contracts abroad, because of Rove's actions. Does anyone know the dangers and
risks that she and her family may face because of this leak?
It was just such a risk that convinced Judge Story that "for any person with
the agency to take it upon himself to leak information poses a tremendous
risk; and that's what, to me, makes this a particularly serious offense." Cannot
the same be said about Rove's leak? It dealt with matters related to national
security; if the risk Randel was taking was a "tremendous" risk, surely Rove's
leak was monumental.
While there are other potential violations of the law that may be involved
with the Valerie Plame Wilson case, it would be speculation to consider them.
But Karl Rove's leak to Matt Cooper is now an established fact.
First, there is Matt Cooper's e-mail record. And Cooper has now confirmed
that he has told the grand jury he spoke with Rove. If Rove's leak fails to fall
under the statute that was used to prosecute Randel, I do not understand why.
There are stories circulating that Rove may have been told of Valerie Plame's
CIA activity by a journalist, such as Judith Miller, as recently suggested in
Editor & Publisher. If so, that doesn't exonerate Rove. Rather, it could make
for some interesting pairing under the federal conspiracy statute (which was
the statute most commonly employed during Watergate).
John W. Dean, a FindLaw columnist, is a former counsel to President Nixon.
Find this article at:
http://www.cnn.com/2005/LAW/07/15/dean.rove