This story in the NY Times is, for the most part, similar to a number of other reports indicating that Karl Rove has been summoned back to the Novak-Plame-gate grand jury, and that it’s possible that Judith Miller, Scooter Libby, and heaven knows who else may also be making return trips. Speculation is running rampant that indictments are in the offing, though no one knows who or when.
But buried pretty far down in the story is this remarkable passage:
Recently lawyers said that they believed the prosecutor may be applying new legal theories to bring charges in the case. One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who "willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters. Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.
AHA!! Finally, someone in the mainstream media has picked up on the possibility that the impossibly narrow Intelligence Identities Protection Act of 1982 might not be the only statute in play here. As has been widely noted, it’s very difficult to convict anyone under the IIPA – so difficult, in fact, that it’s only happened once. The Espionage Act, in contrast, is written in much broader language, and lacks the IIPA’s very demanding requirements with respect to what the defendant had to know in order to be found guilty. As I and others have noted before, it seems pretty straightforward to conclude that Karl Rove’s actions (as described by Time reporter Matt Cooper) fit comfortably within the Espionage Act.
Mark Kleiman has been trumpeting the relevance of the Espionage Act to this case literally for years – since 2003. And I was (I think) the first to observe the relevance of the recent AIPAC indictments to Novak-Plame-gate: there had been some question whether the Espionage Act gets used anymore (it is an old statute), but it was used in the AIPAC case, which shows that it is indeed alive and well, and that prosecutors aren’t afraid to use it when it fits their case.
If the sources in the NYT report are right (there is, of course, no indication who these unnamed "lawyers" are or how close they are to the case), it’s a huge development. It has long seemed unlikely that an IIPA indictment would be possible, so for a while it seemed that the best Fitzgerald could do would be an ancillary charge like perjury, or possibly conspiracy. But the Espionage Act is the real thing: it would mean charging Rove (or whoever) with the crime of illegally disclosing Valerie Plame’s status as a covert CIA operative. Think about it: Karl Rove charged with espionage. Couldn’t happen to a more deserving guy.
off topic Schiavone campaign is underway in Charlestown; OCPF reports committee formed 10/5/05.
I find that a stretch re the reports of what Rove and Libby said. OTOH there’s a great hyperlinked list of classified information leaked by Plame and Wilson at this site http://www.strata-sphere.com/blog/where the Stature would certainly seem to apply.
Chris has money and support coming in from the gay community around the country. He will be a strong candidate and I cannot see him losing. We need everyone’s support! Let’s Do It!