Moreover, is it normal that members of the press know the answer to a major mystery but they withhold it, as a group, from the public? I thought their job was to reveal the answers to major mysteries. In fact, this seems like the scoop of the decade.....This is a very interesting professional and ethical question for the media. Does the reporter's privilege extend to his friends? Here you apparently have quite a few members of the DC press corps with a piece of very juicy information (allegedly) about the most powerful political operative in the United States --- information that also has to do with an important matter of national security and a Justice department investigation.....And during the time they say nothing an election is held in which the political operative in question works feverishly to smear his client's opponent with scurrilous charges of borderline treason and cowardly behavior during wartime.
QUESTION: Mr. President, on another issue, the CIA leak-gate. What is your confidence level in the results of the DOJ investigation about any of your staffers not being found guilty or being found guilty? And what do you say to critics of the administration who say that this administration retaliates against naysayers?
PRESIDENT BUSH: First of all, I'm glad you brought that question up. This is a very serious matter, and our administration takes it seriously. As members of the press corps here know, I have, at times, complained about leaks of security information, whether the leaks be in the legislative branch or in the executive branch. And I take those leaks very seriously.
And, therefore, we will cooperate fully with the Justice Department. I've got all the confidence in the world the Justice Department will do a good, thorough job. And that's exactly what I want them to do, is a good, thorough job. I'd like to know who leaked, and if anybody has got any information inside our government or outside our government who leaked, you ought to take it to the Justice Department so we can find out the leaker.
I have told my staff, I want full cooperation with the Justice Department. And when they ask for information, we expect the information to be delivered on a timely basis. I expect it to be delivered on a timely basis. I want there to be full participation, because, April, I am most interested in finding out the truth.
And, you know, there's a lot of leaking in Washington, D.C. It's a town famous for it. And if this helps stop leaks of -- this investigation in finding the truth, it will not only hold someone to account who should not have leaked -- and this is a serious charge, by the way. We're talking about a criminal action, but also hopefully will help set a clear signal we expect other leaks to stop, as well. And so I look forward to finding the truth.
MARC COOPER: Yet you saw in the '60s how the Johnson administration collapsed under the weight of its own hubris. Likewise with Nixon. And now with the discontent over how the war in Iraq is playing out, don't you get the impression that Bush is headed for the same fate?
GORE VIDAL: I actually see something smaller tripping him up: this business over outing the wife of Ambassador Wilson as a CIA agent. It's often these small things that get you. Something small enough for a court to get its teeth into. Putting this woman at risk because of anger over what her husband has done is bitchy, dangerous to the nation, dangerous to other CIA agents. This resonates more than Iraq. I'm afraid that 90 percent of Americans don't know where Iraq is and never will know, and they don't care.
The White House Need Not Have Leaked to Have Committed a Crime
Bush's press secretary Scott McClellan has chosen his words carefully in denying that anyone at the White House was involved with the leak. To remain credible, a press secretary cannot be caught in either a lie, or a serious misstatement based on ignorance.
McClellan's response reminded me of the Nixon Administration. Nixon's press secretary, Ron Zeigler, took the line that no one presently employed in his administration was involved in the Watergate break-in. That was technically correct, but only technically.
It is entirely possible that no one at the Bush "White House" or on the President's personal staff, was involved in the initial leak to Novak. It could have been someone at the National Security Council, which is related to the Bush White House but not part of it.
In fact, Novak wrote in one of his later columns, that the leak came from a person who was "no partisan gunslinger." That sounds like an NSC staffer to me. And as Newsweek also reported (you can count on Michael Isikoff to dig this stuff out), Valerie Plame's CIA identity was likely known to senior intelligence people on the NSC staff, for apparently one of them had worked with Ms. Plame at the CIA.
But even if the White House was not initially involved with the leak, it has exploited it. As a result, it may have opened itself to additional criminal charges under the federal conspiracy statute.
Why the Federal Conspiracy and Fraud Statutes May Apply Here
This elegantly simple law has snared countless people working for, or with, the federal government. Suppose a conspiracy is in progress. Even those who come in later, and who share in the purpose of the conspiracy, can become responsible for all that has gone on before they joined. They need not realize they are breaking the law; they need only have joined the conspiracy.
Most likely, in this instance the conspiracy would be a conspiracy to defraud - for the broad federal fraud statute, too, may apply here. If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee." It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.
What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." (Emphasis added.) If telephoning reporters to further destroy a CIA asset whose identity has been revealed, and whose safety is now in jeopardy, does not fit this description, I would be quite surprised.
If Newsweek is correct that Karl Rove declared Valerie Plame Wilson "fair game," then he should make sure he's got a good criminal lawyer, for he made need one. I've only suggested the most obvious criminal statute that might come into play for those who exploit the leak of a CIA asset's identity. There are others.
There's one other point worth noting here. As we've seen, federal law recognizes no reporters' privilege or confidentiality. But if recollection serves, there are DOJ guidelines which say that prosecutors should exercise a great deal of discretion when trying to compel testimony from journalists. They're not supposed to do it just to tie up a few loose ends, but only if there's real and significant crime they're trying to prosecute. And before they do so, they're supposed to have exhausted all other possible ways to get at the information.
Now, I'm away from my office. And it's the holiday weekend, so I can't get an expert on the phone to confirm that recollection. So leave that as a contingent assertion. If it turns out I've misrecollected this I'll let you know in a subsequent post. But I think I remember it correctly.
Now, you'll also remember that a couple months back the usual ducks on the right were clucking about the whole investigation coming to an end -- and apparently the whole thing had come to nothing.
That particular cluck never quite computed to me because Fitzgerald shouldn't be pressing matter of jailing journalists unless he thinks he's on his way to prosecuting a serious crime.
So just a question: Would Fitzgerald have pushed to get Cooper and Miller in the slammer if some other party in the White House weren't in a lot of trouble?
- Nobody to Plame
"Sen. Charles Schumer, D-NY, called Sunday for Deputy White House Chief of Staff Karl Rove to personally deny leaking the name of a CIA official.
Saturday, Rove's lawyer, Robert Luskin told The Washington Post Rove had not disclosed the name of Valerie Plame to Newsweek in a 2003 interview.
Sunday, Schumer, who led the push for a Congressional inquiry into the leak, issued a challenge for Rove to speak for himself.
'We've heard it from his lawyer, but it would be nice to hear it directly from Mr. Rove that he didn't leak the identity of Valerie Plame, and that he didn't direct anyone else to do such a dastardly thing,' Schumer said in a statement. 'I have said from the first day ... whoever leaked the classified information should be punished to the full extent of the law.'
The panel is investigating the leak of Plame's name to various news outlets in 2003. It is a federal crime for a government employee to reveal the name of an undercover operative after the employee learns it from classified material."
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