Fitzgerald's failure to indict under 18 USC 793 Fitzgerald's failure to indict under 18 USC 793

Since Patrick Fitzgerald was originally appointed independant prosecutor in PlameGate, a lot of people expected indictments under criminal statutes for the disclosure of Plame's identity. None have issued, and I think by now, none will be forthcoming on the actual crime of disclosing her former working relationship with the CIA.

Two criminal statutes have been suggested as being applicable: 50 U.S.C. §§ 421 et seq. (Covert Agent Identity Protection Act) and 18 U.S.C. § 793 (disclosure of classified information). The requirements for the former have been discussed ad nauseum, and it is likely that Fitz knew almost immediately that Plame probably didn't qualify as covert, and even if she had, the intent requirement was almost assuredly missing.

Both came up today in a post by TigerHawk titled: Armitage and Powell: Looking at PlameGate retrospectively where he quotes email from Andy McCarthy, who is a former federal prosecutor and knows Fitz well. McCarthy's take on the first statute is not surprising:

First, while it now seems abundantly clear that the leak of Plame's identity did not violate the covert agent identity protection act (50 U.S.C. 421 et seq.), this was a subject of considerable debate for the first several months after the story broke. It was not obvious back then.

But then, bells went off in my head reading about the second:

Second, it is still not crystal clear to this day that the leak could not have been charged under the espionage act (18 U.S.C. 793(d))...If Plame's classified status rose to the level of national defense information (we still don't know that for sure), and if its revelation could have hurt the country or benefitted a foreign country (and there are a million ways you could think of to establish either), then you would have a leak that was theoretically prosecutable -- and the question of guilt would turn on wilfullness ... which is to say, on the defendant's state of mind.

TigerHawk then goes on to suggest that Fitz didn't indict Libby because he couldn't prove intent.

I have noted several times that Fitz has never gotten credit from Libby sympathizers for giving Scooter the benefit of the doubt on this. That's understandable -- Scooter's best shot at beating the case is to foment the notion that this whole exercise was a monumental waste of time, and that is much harder to do if he is in a gray area. But it is less understandable that impartial legal commentators have not seized on this point. Fitz made a policy judgment that, in this country, we do not want the espionage act enforced as if it were a British style state-secrets law (where the government can suppress any embarrassing information by classifying it).

But I think that he much too quickly jumps to the intent issue.

First, the provision of 18 U.S.C. § 793 that potentially fits the facts is:

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it

This provision of the statute thus has the following elements:

1. Legal possession of information;
2. Relating to the National Defense;
3. Disclosure of that information;
4. Reason to believe that the information may be used to damage the U.S.; and
5. Willfully disclose the information.

The first element is covered by Libby's (and Rove's) security clearances and the fact that Libby at least received the information marked as classified. Arguably, the disclosure (#3) could have been his statements to reporters that Plame was CIA. Fitzgerald in his press release of October 28, 2005 announcing the Libby indictment said:

Prior to July 14, 2003, Valerie Wilson’s employment status was classified. Prior to that date, her affiliation with the CIA was not common knowledge outside the intelligence community. Disclosure of classified information about an individual’s employment by the CIA has the potential to damage the national security in ways that range from preventing that individual’s future use in a covert capacity, to compromising intelligence-gathering methods and operations, and endangering the safety of CIA employees and those who deal with them, the indictment states.

Thus, he alleges that Plame's CIA identity was classified, and that disclosure could hurt national security. The classified nature of her CIA employment might be able to prove that it was relating to national defense (#2). However, he misses the point for the fourth element. What is important here is not merely that the disclosed information might harm the U.S., but also that the discloser of it believe that.

First, there is the proof problem that Fitz is going to face with Libby on the counts on which he is already charged, but made worse here. Libby's position has seemed to be that he dealt with a lot of stuff on a lot of subjects on a daily basis, and that here he was relaying information that he had heard from reporters, not remembering that he had seen it earlier in a classified setting. Worse, of course, is that the mention of Plame's classified relationship with the CIA was only a minor point in the classified document(s) he saw earlier.

But a bigger problem would be proving that he believed that he had reason to believe that the information may be used to damage the U.S. (#4). Indeed, he had reason to believe the contrary, that disclosure would help the U.S. And that belief was backed by those who legally determine what is and is not in the best interests of the U.S. in this regard, the President, and, through him, his immediate boss, the Vice President. The V.P. had made an informal policy decision that disclosing the connection between Plame's employment and her husband, Joe Wilson, in order to rebut his NYT article (implying that the V.P. sent him to Niger) was more important to national security than that her employment at the CIA was classified.

Thus, in the end, Fitzgerald would have had to prove that Libby believed that his disclosure would harm the U.S. despite having his boss, the V.P. indicate the contrary to him. And that is why a prosecuction of Libby under 18 U.S.C. § 793(d) was destined to fail. Needless to say, a prosecution of Rove under this statute would have been even harder, given that he works directly for the one man in this country Constitutionally granted this determination.

I should also note another problem that Fitzgerald skipped lightly over - the President has formally delegated unlimited declassification authority to the Vice President. Thus, if the V.P. tells his people to disclose information, it is no longer classified, regardless of formalities. Fitz would have been left arguing that they had not gone through formal procedures to declassify the information, when those formal procedures are implemented through delegated authority of the President.

Also, in a similar vein, it is up to the Executive to ultimately determine what information is in the best interests of the national security of this country. Thus, though Plame's CIA status had been classified, that is probably only presumptive, and not conclusive. In the end, Fitz would have had to depend on the Executive declaring the information to be of national security importance, with, for example, a declaration to that effect by the Director of the CIA. But in this case, he most likely faced the opposite: a declaration from the CIA Director's boss to the contrary. And that again gets into an area of Article II powers that the special prosecutor was unlikey to tread.