…and this one isn’t so easy to spin out of.
… and the last guy charged under it faced a sentence of 500 years.
Today John Dean writes of a precedent involving another leaker prosecuted by the Bush Administration:
I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst, a PhD 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, Court 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.
In other words, the last big leak case the Bush Administration prosecuted involved a law few people have been talking about yet.
Karl 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 Karl 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 the 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.
This does not look good for Rove legally.
Meanwhile, politically the man who proved to be so adept at drawing together a united Republican front, especially at times of adversity, is losing allies. After today’s Senate floor spectacle of sanctimony on the part of Republicans outraged that Senator Reid would call for tighter controls of classified information, it was quite interesting to see tonight on NOW former New Jersey Governor and EPA Chair Christie Whitman (R) using a very pleasant tone while she speculated that Karl Rove might resign to avoid embarrassing the president. Media in Trouble has a rush unofficial transcript (that’s accurate to my recollection of the show):
He may decide that he should step down on his own. Because this is gonna become a real issue for the President. Because the president said he would fire anyone who had leaked.
And while Karl may not have actually leaked the name, he appears to have led everyone to her.
So I think it depends on how much legs it gets, and it looks as if it’s not gonna get away.
Inconvenient for Rove. Dangerous for the country to have a man apparently so recklessly partisan that he’d risk national security operations, and possibly the life (or lives) of personnel involved in helping defend this nation.
[Dean tip via Newsfare]
Thanks. I keep forgetting. I’m just trying to spread the info.
My guess is we’ll expect a lot of buzz on this. John Dean is no kook, and knows a thing or three about White House dirty tricks, too.
This is fascinating, media girl. As for John Dean, his book Worse Than Watergate is, in my opinion, the most chilling book out there about this administration. He’s keeps being proved right, too. This feels weird to say, but I trust him.
Every Saturday morning I wake up thinking “Well the Bushies have skedaddled off to the ranch for the weekend, so everything will come to a halt and be forgotten.”
It’s work like yours that gives me hope that they just may not be able to skate away. I hope you get multitudes of readers.
a responsible and diligent media that would emphasize this Randel case prominently, highlighting the hypocrisy the Bush regime is engaged in on the Rove matter. Sadly, this is not likely to happen, partly because the MSM is more interested in entertainment value than they are in truth, and partly because they are effectively controlled by this Bush regime on several levels, especially through the kind of extortion that says; “If you give us too hard of a time we’ll retaliate by cutting off your (all important) ‘access’ to inside sources”.
Tangental to what you recount here, there’s another potential legal problem for Rove that Rep. Henry Waxman describes here.
Great link. Waxman really has been doing yeoman’s work behind the scenes on Bushco for a long time now.
Recommended! May I suggest this be sent to the media as an LTE or op-ed type story? The hypocrisy of this administration is breath taking. This is what this pissed off gal needed to read this morning. I was so angry and frustrated by the spin yesterday I thought I was about to blow a gasket. Hope reigns once again. Thanks!
I see you survived yesterday without cheesecake and without your head exploding (as did I) – commendable!
Yeppers, amazing what a good night’s sleep can do for the mind. I fully intend to find cheesecake today though that will mean an extra workout this week…lol. My son keeps reminding me to have patience, which is not my strong suit. My old mantra was Patience my ass. I think what has been frustrating for the majority of us is every time we think…ok this is the story that will sink their boat they get out of it. Do you think this will continue to grow the legs it needs to get rid of these idiots?
Well, one thing I’m glad to see is that this is being attacked from every possible angle. The press is mad, Democrats have had it, Republicans know Rove has been caught with his pants down, Rove’s lawyer has now lied publicly and on and on.
Lawrence O’Donnell, while being interviewed yesterday by Lou Dobbs, made this important point:
O’DONNELL: Well, Lou, one of the judges — one of the judges on the appeals court does, too. One of the judges, in an ignored opinion by the press, found that there is indeed a federal shield law, but what he said was, the gravity of the suspected crime in this case is so serious that it overwhelms any right to privilege that these reporters have.
He went so far as to say that if the leak involved was less harmful to national security, that’s a quote from the judge, if it was less harmful to national security, he would not order the reporters to testify.
…
DOBBS: It’s interesting that the investigation into this case, and particularly as the principal victims here now appear to be in this order Judith Miller, “The New York Times” Pulitzer Prize winning journalist who is now in, I believe, her eighth full day of being in prison. And basically the American taxpayer is paying for an investigation that so far has led nowhere.
It’s a remarkable period. And we now know that Karl Rove was both a leaker and a leakee, if you will. That we’re in this sort of bizarre situation in which apparently Karl Rove — well, the press was leaking to the government in this case, Robert Novak talking to Karl Rove. Are you astounded by that development?
O’DONNELL: No Lou, over a year ago, one of the lawyers in the case indicated to me that he expected it to be one that included the echo effect. Which is to say Rove’s information may well have come to him first from the press. That turns out to be apparently the structure of the story now.
But Lou, this is a very serious case. And I say that based exclusive on the judges’ opinions. You can’t read the judges’ opinions in this case and think that this prosecutor is chasing his tail. These judges were reluctant to order these reporters to testify or into jail. And they have said that they have done so, because the underlying suspected crime is so serious. And they’re talking about the leak case.
In fact, Lou, one of the judges refers to, quote, “the plot against Wilson.” One of the appeals court judges sees this case as a plot against Joe Wilson. That’s not spin from a political source, that’s one of the judges’ reading of the case.
DOBBS: And my readings of those judges’ opinions frankly, somewhat constrained, because so much is redacted.
O’DONNELL: That’s right.
That’s an important addition to all of this. O’Donnell’s right. I haven’t read about that judge’s statements in his opinion and I haven’t heard it discussed in the media.
Those judges interest me a lot. I believe there was one of them in particular who emphasized that normally he wouldn’t have jailed the reporters but in this case and because of the seriousness of the crime in question he felt he must do it.
We don’t know if any operatives died as a result of Plame’s cover being blown. We don’t actually know what harm resulted, apart from knowing her cover company disbanded. We have to guess the rest. I would love to know if the judges were given specific info like that, because if they were that would surely have contributed to the seriousness with which they viewed the nature of the suspected crime. Does anybody know how this works in terms of security clearances? Can judges be given such info?
I saw Whitman’s interview on NOW last nite too but I didn’t take it as a sign that there may be some fragmentation in the R party yet because she’s been very vocal before about her differences with the party and she actually misspoke: Bush said he’d punt anyone who broke the law – not just whoever leaked this.
As for Dean’s commentary, I saw him interviewed on CNN the other day and he has been very aggressive and serious about what has transpired here. Good for him for cutting through the spin and presenting the public with some real possibilities about what might happen legally and – good for you for catching this media girl. This is far from over.
Love O’Donnell. He is one smart cookie. He really presented the facts well. If only we had more folks like him to speak out on these talking heads show huh?Off to get my hair cut. Have a great day!
The trouble with this is that he pleaded guilty, so the issue of whether this statute actually applies to a leak was not litigated. On it’s face the statute speaks of the conversion or conveyance of “any record, voucher, money, or thing of value” all of which have a choate existence. Information conveyed orally by definition is inchoate. I can easily see Rove’s attorneys litigating the applicability of this statute to the leak of information orally over the phone on two bases: 1) that such information is not a “record” as defined by the statute, and 2) that Rove did not steal, convert or otherwise dispose of any thing of value when he leaked the information.
The statute’s title is a giveaway that it may not have been intended to cover the leak of classified information. It is titled: “Public money, property or records” and the very first sentence states: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; . . . “
If I were Rove’s attorney and a violation of this statute was charged I would move for dismissal on the grounds that the statute was intended to cover the conveyance of physical property, not oral information. I would point to other stautes passed by Congress which specifically address leaks of the type Rove is alleged to have made as evidence that Congress never intended this statue, which refers to things having a physical existence, to cover the situation where information is leaked to the press.
Now, the Courts may not be moved by that argument, but I think it is a reasonable reading of Section 641, and one the Judge could not lightly dismiss.
“records” would seem to apply. And a plea bargain involving a year in prison would seem to indicate that the charges have some teeth.
…IANAL. OTOH John Dean is.
Well he was a lawyer. I think he got disbarred after Watergate.
No, you plea bargain to get the best deal for your client. They must have agreed to a plea bargain under that statute to limit the amount of jail time. The case is not a precedent for the applicability of the statute to leaks since the issue was not actually litigated and no judge was forced to issue a ruling on the question.
The only cases that operate as precedents are those where both sides contest an issue, whether of fact or law, and the court must resolve the dispute. Here, because of the plea bargain, both sides agreed to not contest the applicability of the statute. My guess is they had him dead to rights on other statutes, but this was the one that allowed a lesser sentence to be imposed.
And I am a retired lawyer.
Is it common for prosecutors to charge violations of every statute that might possibly apply? Yes, because they never know what a jury will do. All they need is a good faith argument that the statute would apply to the alleged bad acts in question. Also Prosecutors like to “overcharge” their indictments for plea bargain purposes.
I’m not trying to say section 641 may not apply. Perhaps there are prior precedents which hold that section 641 applies to leaks (I’d have to research that question to be sure) but this plea bargain case is not one of them.
The INR memo is the record. Under your view, this statute permits Rove to read the memo to Cooper, but prohibits Rove from handing the memo to Cooper? That doesn’t sound right.
I’m going to try to explain my position in a little more detail to see if I can clarify for everyone what I’ve been trying to say regarding the availibility of 18 UNITED STATES CODE, SECTION 641 to Karl Rove’s leak of Valerie Plame’s identity as a CIA agent.
You need to look carefully at the statutory scheme which includes Section 641. This provision (Section 641) is a fairly standard type of embezzlement law, here extended to include any property, including records, of the government which has value. Take a look at the other laws in Chapter 31 of Title 18, and you will see what I mean. Section 641 is only the first of several provisions which deal with the embezzlement of federal property. None of them specifically address the disclosure of classified information to the press.
Now if there were no other laws on the subject, it would be within the bounds of reason to infer that the term “record” might extend to the inchoate information included within the physical manifestation of that information. And perhaps it does. Indeed, record may be a defined term that includes both the physical manifestation of that information and the information itself. I didn’t find any specific provision of Title 18 that defines “record” for purposes of these statutes in my initial cursory search, but that doesn’t mean that one might not exist. In the alternative, these issues may have already been litigated at some point in the past, and federal case law may already establish that the term “record” includes both the physical record as well as the information the record was intended to preserve.
We do know that “record” isn’t defined in section 641 specifically. Only the term value is expressly defined there. And value is defined as follows:
It could also be the case that record is defined more narrowly, or not defined at all. In any event, we do know that Congress has passed specific legislation to deal with the unauthorized disclosure of the identity of a covert CIA agent. In situations where the law is ambiguous (i.e., assuming that the term “record” is not specifically defined) Courts often look at other laws which arguably cover the same acts alleged to be criminal.
In this case, Rove’s defense attorneys will undoubtedly argue that Section 641 does not apply because it is a statute intended to deal with the theft of government property, not with the leak of classified government information. They will say that Congress could not rationally have intended to pass a law making it more difficult to prosecute someone for leaking the identity of a CIA agent if they already had a law on the books that makes it easier to do so.
The issue is one of statutory interpretation. If Rove leaked the identity of a CIA agent, his attorneys will claim that such information, though it may be contained in a government record is not the record itself, and since Congress has chosen to pass specific legislation pertaining to the wrongful disclosure of CIA agents, Section 641, with it’s more broad language of “record”, should not apply to Rove’s leak of such information.
Now to take the issue one more step (just to complicate matters and make things a little more interesting) let’s ask ourselves how Rove knew of Plame’s identity. Let’s say, for purposes of argument, that instead of learning about her CIA identity from some journalist who’s name he can’t recall, he actually learned of her CIA role from reading the INR memorandum which Fitzgerald seems to have such an interest in, the one that accompanied Bush, Powell and Ari Fleischer on that trip to Africa. Does that change anything? Maybe.
Remember Section 641 speaks of anyone who knowingly converts a government record to their own use. Arguably, you can convert a record to your own use if you take the information contained therein and use it for a purpose for which it wasn’t intended, e.g., for the purpose of smearing or discrediting a political opponent. This may be why Fitzgerald is so keen to know how information about Plame’s role at the CIA came into the hands of Libby and Rove, the two people we can be fairly certain had conversations with reporters concerning Plame.
If Fitz can prove that Rove or Libby, or someone else (Ari Fleischer perhaps), obtained their knowledge of Plame’s CIA identity directly from a government record, I think that makes his case for the applicability of section 641 much stronger. In that instance you have a direct connection between the record and the leaked information. It may still fail the statutory interpretation test, but the argument that Section 641 applies to Rove is definitely strengthened if there is such a direct connection between the record and the disclosure of information contained in that record by Rove, Libby or anyone else.
In the absence of such a connection however, Section 641 simply may not apply for the reasons I’ve stated above.
Fantastic stuff: great analysis, clearly presented. You’ve nailed the idea here:
“Arguably, you can convert a record to your own use if you take the information contained therein and use it for a purpose for which it wasn’t intended, e.g., for the purpose of smearing or discrediting a political opponent.”
Section 641 seems like a viable fallback position, then. Fitzgerald wouldn’t want to go with Section 641 exclusively, but it could be another arrow in his quiver.
I’d love to see you put on your prosecutor’s hat, state the necessary assumptions, and, in a diary you could cross-post in the usual places, make the case that Rove violated this section.
we don’t know all the facts, or even who at this point the targets of the investigation are. Which is as it should be. Fitzgerald is handling this just right.
Dangerous for the country to have a man apparently so recklessly partisan that he’d risk national security operations, and possibly the life (or lives) of personnel involved in helping defend this nation.
Who with one brain to bang against the wall does not realize that the Administration collectively is founded on this principle?
Increasingly fewer and fewer … but unfortunately not until after the election.