Miller To Be Called Back; Statute Suggested

The NY Times updates us on the Judy Miller situation, tells us that Libby and others may be called back, in addition to Rove, answers the burning "Where's Rove" question, and gives us a statute under which Fitzgerald may attempt an indictment.  We will start there and give props to Psychic Blogger Mark Kleiman and attorney Dan McLaughlin, the Baseball Crank.

The Statute:

Mr. Fitzgerald has focused on whether there was a deliberate effort to retaliate against Mr. Wilson for his column and its criticism of the Bush administration's Iraq policy. 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.

My goodness - Mark Kleiman pounded the table on this statute for months, and our modest effort to save Mark Kleiman's hair prompted the Baseball Crank to walk us through the law.  Mark Kleiman responded and Dale Franks joined in, so the blogosphere is Up To Speed on this.  [Mark Kleiman's latest cites the Blue Mass Group, who note the use of the Espionage Act in the recent AIPAC case.  Recent AIPAC plea deal discussed in the Times.]

Ms. Miller:

Meanwhile, Mr. Fitzgerald has indicated that he is not entirely finished with Judith Miller, the reporter for The New York Times who recently testified before the grand jury after serving 85 days in jail. According to a lawyer familiar with the case, Mr. Fitzgerald has asked Ms. Miller to meet him next Tuesday to further discuss her conversations with I. Lewis Libby, the vice president's chief of staff.

Ms. Miller went to jail rather than divulge the identity of her source, but agreed to testify after Mr. Libby released her from a pledge of confidentiality.

Mr. Fitzgerald has not indicated whether he plans to summon Ms. Miller for further testimony before the grand jury.

[More on the circumsatnces of Miller's release here.  Ardent righties, be prepared to avert your eyes!]

Others to testify:

In coming days, the lawyers said, Mr. Fitzgerald is likely to request that several other White House officials return to the grand jury to testify about their actions in the case - appearances that are believed to be pivotal as the prosecutor proceeds toward a charging decision.

Mr. Fitzgerald is also re-examining grand jury testimony by Mr. Libby, the lawyers said, but it is unknown whether he has been asked to appear again before the grand jury. Mr. Libby's lawyer, Joseph A. Tate, did not respond to telephone messages left on Thursday at his office.

Where's Rove?

In recent days, Mr. Rove has been less visible than usual at the White House, fueling speculation that he is distancing himself from Mr. Bush or has been sidelined. But according to a senior administration official, Mr. Rove and his wife are on a long-planned trip visiting colleges with their teenage son.

My thoughts below.  One sentence?  Since Rove is the second source for Novak (remember him?) and the first source for Cooper, if there are indictments, Rove will be included.  IF.  And if I were a Republican strategist, I would not let myself be caught unawares by indictments.

UPDATE:  The lefty fantasy on indictments, with ideas on the possible charges, from Reddhedd, a former prosecutor and strong candidate for Kos diarist.

THE APOLOGIST NEVER RESTS:  From a regular, we get a straw that can, perhaps, be spun into a strand of gold for Karl. It appears after the break.

Matt Coopper wrote an e-mail after he chatted with Karl.  Newsweek told us this:

He finished, "please don't source this to rove or even WH [White House]" and suggested another reporter check with the CIA.

Let's ask - did someone at TIME call the CIA?  Robert Novak did, and had his baffling conversation with former CIA press spokesperson Bill Harlow.

Support for the notion that TIME may have contacted the CIA press office pops up in Matt Cooper's chat with Tim Russert, when Cooper hinted that he had additional sources and had testified about them:

MR. RUSSERT:  The piece that you finally ran in Time magazine on July 17th, it says, "And some government officials have noted to Time in interviews, (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.  These officials have suggested that she was involved in her husband's being dispatched to Niger..."

"Some government officials"--That is Rove and Libby?

MR. COOPER:  Yes, those were among the sources for that, yeah.

MR. RUSSERT:  Are there more?

MR. COOPER:  I don't want to get into it, but it's possible.

MR. RUSSERT:  Have you told the grand jury about that?

MR. COOPER:  The grand jury knows what I know, yes.

MR. RUSSERT:  That there may have been more sources?

MR. COOPER:  Yes.

Matt Cooper fought both his Libby and Rove subpoenas in court on the basis of source confidentiality, and suddenly he goes all chatty with Fitzgerald about other sources?  Weird.  Maybe he is simply engaging in a bit of puffery - Matt Cooper, international man of sources.  Or maybe he is referring to sources that would have talked to him without any promise of confidentiality.  CIA press contacts, for example.

And why might this be good for Rove?  IF Fitzgerald has found that the CIA confirms Ms. Plame's status to everyone who calls, the leak looks a bit less dastardly.

Comments

[Keith]

What's a percentage guess on the likelihood that that "IF" is a "yes"? 75%? 90% Any educated guess?

[Jeff]

It seems to me that Hadley has not gotten nearly the attention he deserves in all of this, especially since we learned a while ago that it was the trio of Hadley, Rove and Libby who were coordinating the dual attacks on the CIA and on Wilson in the relevant period of 2003. I've thought for a while that Hadley was either Novak's first source -- and he fits the bill as not a partisan gunslinger, right down to his appearance -- or Pincus' much-sought-after source of July 12 or so. Maybe he was both. Waas refers to him today as a senior administration official (seemingly even in his then-capacity as Deputy NSC guy), so he fits Novak's bill in that way as well. Anyway, I suspect we'll be hearing more about him in the coming week or so.

I will believe the indictments when I see them. But I wonder whether those right-leaning folks around here who seem as convinced as ever that there's nothing to it will -- or if it will be like the WMD all over again, only the opposite.

[topsecretk9]

still not buying it, will probably be proven wrong but WAPO and NY...there really is no trust ...I still think the press is piecing and spininng this...I think this will turn out to be the great big lie ( oh the press, they got it wrong again)

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.

comes back to Judy! and other couples

[Syl]

Um, that statute applies to anyone leaking anything to a reporter that is classified. Bill Gertz, who prints more classified info than any other reporter, has never been called on it.

This type of stuff happens all the time. And rarely is there any investigation. What, about one a month? And few of them lead to indictments. That hardly covers the breadth of the leaking.

So Fitzgerald is now looking for anything at all he can use?

Is Fitzgerald really assuming the motivation is revenge rather than setting the record straight?

Oh, nevermind, it's the New York Time's saying that.

[MJW]

First, anyone right-leaning person who predicts someone outside the administration will be indicted is most likely engaging in wishful thinking.

Second, in answer to Jeff, I don't think there's any there there in the Plame case, and indictments won't necessarily change my mind. If Fitzgerald indicts Rove or Libby based on some "novel legal theory," I'd be inclined to believe that after a two-years' work, he had a Viagra-associated response to indict someone for something, but was a wee bit short on facts. Same for a nebulous "conspiracy to obstruct justice" charge. If Fitzgerald charges Rove with perjury based on Rove's testimony that his conversation with Cooper originally centered around welfare, while Cooper sort of disagees, I'd suggest the charges should immediately be dismissed, and Fitzgerald should be required to take a drug test.

Everyone seems to sing the praises of Fitzgerald as a prosector, but the examples I've heard to support this tend to reflect more on his effectiveness than is judgement. Perhaps he is like the kid with a hammer to whom everything looks like a nail. Until he runs into something that isn't a nail, he does great.

[Kate]

Coming up with new legal approaches to get an indictment? In that case, I think that the law should be changed to be made clearer so the person may know they are breaking the law and don't need the indictments of a creative prosecutor to enlighten them.

If they charge Bush administrations with felonies for something that is done everyday in Washington, this will further convince people that media and elite pressure play a strong role in getting these indictments.

Lucky for the media and Fitzgerald, conservatives may not be in the mood to stage a vehement defense of the President and his top advisors, on the other hand...this could so outrage everyone that the base unites once more.

[TM]

What's a percentage guess on the likelihood that that "IF" is a "yes"? 75%? 90% Any educated guess?

I once had a colleague assure me that hindsight is 50/50.

A key to the Espionage Act is the ability to prove intent (so maybe we should call it the ESP Act). I can't guess what smoking gun ebidence Fitzgerald has to prove that these guys knew Plame's status was important - *maybe* the INR memo, but even that could be ambiguous.

The good point that plenty of leaks could be prosecuted under the Espionage Act was emphashized by the Baseball Crank (and earlier judges) in his analysis:

While both the Gorin Court and Judge Learned Hand of the Second Circuit in United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945), expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement, it seems clear that - unless there has been subsequent caselaw calling Gorin and Truong Dinh Hung into doubt - information bearing upon US intelligence-gathering methods can, at least in some cases, be covered by the statute.

[Veeshir]

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.

Does that mean they're going to arrest Wilson for his op-ed where he disclosed matters relating to a classified trip?
Just curious.

[Jerkweed]

So who does Bush fire if Rove is indicted: Rove or Fitzgerald?

They both work for him...and one of them is wrong.

[boris]

Started reading Mark Kleiman and got as far as what that dastard Rove did to poor Valerie's career before I had to throw up. Trying hard to remember left sympathy for what BJ did to Linda Tripp's career ...

Yeah right.

[SteveMG]

"Willfully communicates, delivers, transfers or causes to be communicated" to someone "not entitled to receive it" classified information relating the national defense matters."

That's just absurd. Not to use the tu quoque excuse, but if this is applied to everyone in Washington who has access to classified information - recall Moynihan's complaint about secret data? - we'd have to turn the state of Alaska into a prison camp.

Furthermore, if Fitzgerald is going to employ this novelty, I can empathize with Miller's reluctance to testify. How much classified information has she received over the decade? Presumably this applies to the recipients of classified data as well the transmitter?

Out of control prosecutor? Can we get Bork to fire him? Cf., Friday night massacre.

[cathyf]

"willfully communicates, delivers, transfers or causes to be communicated"

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.

Sounds to me like they can not only arrest Wilson, but the NYT editors, the NYT pressmen, and the NYT delivery guys.

"Applying new legal theories"? Understatement of the week... Proving that Fitzgerald can out-Earle Earle himself would be more like it!

Sure, it could happen. I mean we've seen Martha Stewart go to jail, right? This would be just one more in a long line of moves as the US abandons the Rule of Law and turns itself into a banana republic.

cathy :-)

[Jon H]

boris writes: "Trying hard to remember left sympathy for what BJ did to Linda Tripp's career"

Plame is an expensively trained specialist in WMD, outed during a 'war on terror' in which the White House is supposedly very concerned about the use of WMD against us.

Tripp, not so much.

[JayDee]

Always amusing to watch the right wing drop its attachment to the system of law the minute they don't like the results. Prosecutor targets a valuable Republican? The prosecutor's crazy/overzealous/the true criminal. Republicans break a law? What a stupid law!

This is the party of accountability about as much as it's the party of fiscal responsibility. Or of small government. Hilarious.

[JayDee]

Excellent point, Jon.

I think some rightwingers have spent too much time listening to the neofascism of hate radio, where merely holding different political opinions than the rightwing means one "hates America" and "as dangerous as the terrorists." How easily these fighting keyboardists dismiss the very real sacrifices and courage of true patriots like Plame. No one knows her political affiliations, and there isn't a shred of evidence that she tried to undermine the government at any point, yet it's a very acceptable parlor game on the right to impugn her name.

[boris]

expensively trained specialist

Secretly working against the administration.

Since when did career busting of the "less valuable" become more acceptable ???

Bottom line, Valerie's scheme resulted in the publication of anti-adminstration lies.

Linda ... not so much.

[JayDee]

Bottom line, Valerie's scheme resulted in the publication of anti-adminstration lies.

Please note this "bottom line" consists of two complete fabrications:
1. that Plame had any "scheme"
2. that any "lies" were published

And that's bottom line in winger-speak. Then again, we still have people on the right who think Plame and Wilson are the ones who will be indicted. So that fits.

[boris]

isn't a shred of evidence that she tried to undermine the government

Her scheme resulted in the publication of anti-administration lies. That's more than enough evidence to suggest it was deliberate. As stated before ...

If you can read Rove's mind ...

Well I can read Valerie's.

[JayDee]

What lies, buddy? And prove it.

I don't read minds. I'm perfectly willing to let our system of laws, not men, take care of this situation. I'm a strict constructionalist that way.

[boris]

What lies, buddy? And prove it.

Not your buddy. Don't have to.

[JayDee]

Not your buddy either. But thanks for conceding.

[boris]

Thanks for showing us the stylish brilliance of your playground dabate technique.

[topsecretk9]

rightwingers have spent too much time listening to the neofascism of hate radio

Right JayDee,

and this statement makes me think that leftwingers have spent too much time relying on Daily KOS for their daily affirmation

And yes, Wilson did get busted peddling lies, but that you either don't know this or ignore this is winger speak for referring to the lefts favorite game of 3 little monkey, something they do to maintain their hate level of Bush. DOn't want to cloud that. So that fits.

[JayDee]

What lies? For something so obvious, you're all pretty evasive. Par for the course.

[Jeff]

Before you all start howling with outrage at the potential use of "new legal theories," you might note that the source for that idea are lawyers involved in the case. Let's say Fitzgerald is using the Espionage Act -- as Mark Kleiman has been suggesting for a long long time, while he points to the media's embargo on exploring the possibility. Who says he hasn't been doing so for a long time? Only some lawyers, and quite likely lawyers with potential targets for clients, whose interests are served by -- you guessed it -- ginning up some outrage on the right by suggesting a prosecutor fishing for something, anything. Personally, I think there are indications that Fitzgerald has been going in this direction for quite a while. It's only right-wing spin that has insisted on focusing so exclusively on IIPA, precisely because it is so hard to violate. But why must we imagine Fitzgerald followed the right-wing spin until just recently. Just because some lawyers say so, and what's more it's only what they say they believe? If you were to learn that the legal theories Fitzgerald is operating with are not newly developed, would that make a difference to you? I suspect not.

[Keith]

If you were to learn that the legal theories Fitzgerald is operating with are not newly developed, would that make a difference to you? I suspect not.

Jeff, it wouldn't make much of a difference because as the detailed legal analysis from Baseball Crank showed (linked above), this would be a fairly novel application of that law.

Half of the news reported in Washington could fall under the Espionage Act. How many classified reports have been leaked in the past few years? Try reading the NYTimes or the Washington Post for a week and see if you don't run across at least one such leak: leaks about torture, Guantonamo, Iraq, etc., etc. Dick Durbin even shared materials from a classified report on the floor of the Senate.

The outrage over the application of this law to Rove would be based on the fact that, given that this kind of activity happens all the time in Washington, and given that Rove it seems that, whatever Rove did, he was just trying to spin a reporter and not trying to "out" Wilson's wife for revenge, then why nail just Rove for something that everyone else in Washington does all the time? Why the selective enforcement?

[Keith]

It's only right-wing spin that has insisted on focusing so exclusively on IIPA, precisely because it is so hard to violate.

Jeff, your statement is spin. The thing that started this whole mess was a column by some left-wing writer late in July 2003 (I don't remember who it was right now) who suggested that the IIPA may have been violated by whoever sourced Novak's original article. That's what created the initial controversy that prompted this investigation. In other words, the use of the IIPA isn't some right-wing spin created after the fact to show how hard it is to prove Rove did anything wrong. It was the original charge that prompted the appointment of Fitzgerald in the first place.

To say that the whole topic of the IIPA is a Republican ploy to divert attention away from the true problem is just wrong. If it's anyone's fault for being obsessed with the IIPA, it's the media, who can't seem to get past their original template of "Rove leaked Plame's name for revenge and violated the IIPA." The media can't come close to the kind of reporting and analysis that Tom has done here, and he has been on top of the various ways Fitzgerald could take this--including the Espionage Act--for months.

[Patrick R. Sullivan]

'Does that mean they're going to arrest Wilson for his op-ed where he disclosed matters relating to a classified trip?'

Exactly. The one person who the AIPAC case fits is Joe Wilson, and likely Valerie too.

But not Karl Rove.

[RichardAubrey]

Ref. Wilson's lie(s).

His op-ed in the NYT is one of the "Bush lied" sources. His report to Congress does show Iraq sniffing around Niger. So, with less relevance to this issue, do other reports.

Thus, his public statements are designed to undermine the administration.

That's point one.

The other is a question about releasing classified information. If he lied, is it classified information? It's different from his official report, and in fact says the opposite. So is that classified? It's the same subject, but the information is moonshine. Where does that fit?

BTW, I think Wilson knew he could count on liberals to insist on the truth of his op-ed, even knowing the truth of his report. He could also count on them and the media to pretend Africa and Niger were the same, and Bush's famous sixteen words in the SOTU about Africa were disproved by Wilson's op-ed lie about Africa.

Got to give the guy credit. He sure knows his market.

[Confederate Yankee]

First, full disclosure: I am center-right in my political beliefs. I am not a lawyer, nor have I played one on television. I did have one over for dinner once, however.

That out of the way, I’m curious as to whether Joe Wilson is himself within the scope of the investigation.

While Novak got the story to print first, he did not reveal Plame’s status as an undercover operative. The first printed confirmation of Plame’s former undercover status seems to be in a David Corn article in the Nation where he spoke to Joe Wilson as his source.

It seems to be that some in the White House might have “plausible deniability” as to knowing Plame’s undercover operative status, Wilson, as her husband, most certainly does not have that defense. That, of course, is providing that there is an undercover status to protect in the first place. Plame had been out of the field for five years, hadn’t she?

Personally, I’d be surprised if this investigation leads to any indictments. There seems to be lots of hot air, but as long as this has been going on, I’ve seen little real smoke, and fewer indications of a fire.

I suspect this will fade away quietly like the "October surprise," the claim of 100,000 dead Iraqi civilians, the Hurricane Katrina murder spree in the Superdome, and other media driven scandals that have turned out to be utterly false.

[Patrick R. Sullivan]

If Fitzgerald uses the Espionage Act, then Kristoff is in trouble too:

'If two or more persons conspire to violate any of the
foregoing provisions of this section, and one or more of such
persons do any act to effect the object of the conspiracy, each of
the parties to such conspiracy shall be subject to the punishment
provided for the offense which is the object of such conspiracy.'

[Aaron]

Wait, show me exactly how EXPENSIVE Valerie's training was...

Is she a chemist?

Is she an engineer?

How many years did she spend at MIT learning about WMD's?

I'm going to guess she is not from a technical background and it's all on teh job training.

[Aaron]

Wait, show me exactly how EXPENSIVE Valerie's training was...

Is she a chemist?

Is she an engineer?

How many years did she spend at MIT learning about WMD's?

I'm going to guess she is not from a technical background and it's all on teh job training.

[Aaron]

Wait, show me exactly how EXPENSIVE Valerie's training was...

Is she a chemist?

Is she an engineer?

How many years did she spend at MIT learning about WMD's?

I'm going to guess she is not from a technical background and it's all on teh job training.

[Al]

"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."

Ummm, maybe Fitzgerald will be indicting NOVAK TOO. After all, Novak passed classified information to every single one of his readers...

[Jeff]

Keith - You're right that IIPA was first mentioned by a lefty - David Corn two days after Novak's column. We actually don't know that this was even the original charge that prompted the inquiry that was eventually led by Fitzgerald, do we? I think the process was a CIA referral, and I'm not sure that IIPA was the specific or exclusive potential violation referred. I believe it had to do with the unlawful disclosure of classified information, which is more general. The second thing is that, regardless of the fact that Corn came first, the focus on the IIPA has been pushed by members of the right, starting with Toensing who shows up in a lot of places as an expert, having been involved in the drafting of that law. But again, I agree with you about the media not doing its job in this regard (and of course I agree with you praise of TM). My claim, however, is that this is in no small part because the media has lazily relied on right-wing spin.

[Steven J.]

Indicted GOP traitors smell "like victory."

[JohnH]

There is another possibility for Fitzgerald, at least according to my (non-lawyer) thinking. Rove may not have intended to harm the US by discussing whether Wilson was sent to Niger because his wife worked for the CIA, and thus doesn't meet the scienter requirement. However, it could be argued that Rove intended to harm JOE WILSON by talking about his wife, and that this had a known potential to be harmful to the US. Any lawyers here want to opine on whether this is a way that Fitzgerald could go?

[Steven J.]

While Novak got the story to print first, he did not reveal Plame’s status as an undercover operative.

What the CIA told Novak not to do:

Harlow, the former CIA spokesman, said in an interview yesterday that he testified last year before a grand jury about conversations he had with Novak at least three days before the column was published. He said he warned Novak, in the strongest terms he was permitted to use without revealing classified information, that Wilson's wife had not authorized the mission and that if he did write about it, her name should not be revealed.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/26/AR2005072602069.html

What Novak wrote:

Robert Novak (archive)
July 14, 2003 |
http://www.townhall.com/columnists/robertnovak/rn20030714.shtml

Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction.

[boris]

undercover

[RichardAubrey]

Interesting post from Harlow of the CIA.

It is nice to know that Plame didn't "authorize" the trip. But that's too cute by half.

The question was, whose idea was it to send this moron to Niger? The answer, which seems to be accepted, is that it was Plame's suggestion. Whether the CIA was having a rogue moment, or a senior moment, somebody authorized Plame's idea. Without her suggestion, it is reasonable to presume, somebody else would have gone.

Better Harlow had kept his mouth shut. Opening it, he makes it clear somebody's trying to screw the pooch.

[SaveFarris]

Steven J., you're forgetting about the first time Plame's name was revealved:

It was .... Joe Wilson in Who's Who.

[cathyf]

While Novak got the story to print first, he did not reveal Plame’s status as an undercover operative. The first printed confirmation of Plame’s former undercover status seems to be in a David Corn article in the Nation where he spoke to Joe Wilson as his source.

As a way to indict Wilson, that's not going to fly in any "reasonable person" way. Novak claims that he never suspected Plame had a covert identity, because he knew from her job description that she was non-covert and it never occured to him that somebody non-covert could also be covert. Joe Wilson had a different perspective, in that he knew that his wife was covert, and he read Novak's words from the perspective of someone who already knew that she was covert.

So in Wilson's defense, a reasonable person who already knew that Plame was covert could very well have read Novak's column as revealing that Plame was covert, whereas another reasonable person who didn't know that Plame was covert wouldn't have gotten that from reading those same words. If Wilson reasonably thought that Novak had already blown Plame's cover, then Wilson can't be prosecuted for Corn's column which really blew Plame's cover.

This is a classic interrogation technique, where you act like you already have some information and trick the person into confirming it. That this can happen is pretty common-sense psychology, and any jury will be able to see the logic of it. Unless you have some smoking-gun proof that Wilson really knew he was revealing something that wasn't already known, there is no way that you can prove to a jury beyond a reasonable doubt that Wilson didn't just inadvertently got fooled into thinking Plame's cover was already blown.

cathy :-)

[BEn Skott]

Poor Valerie Plame! Because of the evil Karl Rove (maybe), she was forced to be on the cover of a major magazine, do the talk show circuit, and get far more than 15 minutes of fame. I imagine she'll make some money off a book or a movie eventually, too. And not only all that, but now she no longer has to do a job that is so dangerous that someone might go to jail for saying she had it. Her kids have got to be happy that Mommy won't be in danger anymore.

[Sensible Mom]

For Confederate Yankee's theory to work, David Corn would have testified. I haven't seen anything anywhere indicating that he did.

I think Fitzgerald is focusing on Rove and Libby, although I don't believe that a crime was committed.

Fitzgerald would not have pursued this investigation if he felt she had been outed in the Who's Who publication.

He's looking for someone to punish based on the charges Wilson made.

[cathyf]

If you parse Harlow's narrative carefully, it goes like this:

1) Plame/Wilson give CIA a heads up that Novak is going to write about Wilson's Niger trip.
2) Novak contacts Harlow in the CIA press office and shows him the story.
3) Harlow argues to Novak that it's not true because of this laughable technicality that Plame didn't "authorize" Wilson's trip.
4) Harlow looks up the info on the CIA computer and "confirms" that Plame is covert.
5) Harlow calls Novak back and makes another stab at getting him not to write the story.

The key point in the narrative is that Harlow admits that he confirmed that Plame was CIA, which he never should have done if she was covert. My read is that he is shading the truth in his leaked version of things where he implies that he looked it up and "double-checked" that she was covert. He confirmed that she was CIA because he knew that she had a non-covert job and never imagined that she was covert, and then was wetting his pants when he went and looked it up and realized that she was. And that by getting into this substantive argument about who sent whom to Niger he had blown the actually classified info.

There is also Novak's claim that if the CIA had objected more strenuously he would have taken more pains to hide Plame's identity. That meshes with Harlow's story, too. He didn't object more strenuously because he didn't know that he needed to until well into his interaction with Novak. By the time Harlow realized he needed to deliver the CIA-spokesman-reporter wink-and-nudge code phrases so that he could tell Novak Plame was covert without actually telling him, Novak was so distracted by the "didn't authorize the trip" line of BS that he missed his signal.

But anyway, if you are going to indict somebody for violating the espionage act or the IIPA you have to get over the hurdle of showing that whoever disclosed her identity knew that it was a secret or should have known that it was possible. It's hard to imagine showing that any of these people knew other than Plame, Wilson and Harlow. For a prosecutor to make any sort of argument that a "reasonable person" should have considered the possibility that Plame was covert before talking about her, I think Harlow is an insurmountable obstacle. If the CIA press liason didn't think of it, how can you claim that anyone else should have?

cathy :-)

[topsecretk9]

but...Joe Wilson said on CNN a few months ago, that his Wife WAS NOT covert at the time it was printed! So his trantum was a show to cause all of this?

[topsecretk9]

here it is...

BLITZER: But the other argument that's been made against you is that you've sought to capitalize on this extravaganza, having that photo shoot with your wife, who was a clandestine officer of the CIA, and that you've tried to enrich yourself writing this book and all of that.

What do you make of those accusations, which are serious accusations, as you know, that have been leveled against you?

WILSON: My wife was not a clandestine officer the day that Bob Novak blew her identity.

BLITZER: But she hadn't been a clandestine officer for some time before that?

WILSON: That's not anything that I can talk about. And, indeed, I'll go back to what I said earlier, the CIA believed that a possible crime had been committed, and that's why they referred it to the Justice Department.

[topsecretk9]

you know in hindsight this is a strange statement by Wilson during the same interview with Wolf as well

BLITZER: Do you believe that Karl Rove committed a crime?

WILSON: I don't know. That's in the hands of the special counsel. Clearly, the CIA, in referring it to the Justice Department, believed that a possible crime needed to be investigated. And that is what set off the investigation and that is where we are now.

Two years later, after the president had said he wanted everybody to cooperate with the Justice Department investigation, we've had to go up to the Supreme Court to get the release of the confidentiality waiver for a journalist. We've got one journalist who has been through agony before he was released and we have another journalist languishing in jail. It is time for those sources to step forward and accept responsibility for what they've said to these journalists..."

Okay, it may be a strech to wonder why Wilson would group himself on this, was Matt Cooper in agony or just strong willed (you might know if you conferred with Cooper) and NOW we know that waivers were in place now and for quite some time...we also know now that Judy was concerned with other sources...and that Wilson pretty much disappeared after he goofed (or intentionally said it this)

which make this excahge (NO I Said it, I said here and here and roll the tape to show I said it here too!)

BLITZER: But, basically, you still hold to the notion that the whole idea of sending someone to Niger originated in the Vice President's Office?

WILSON: No, no, no, no, no. The idea of sending someone to Niger originated in response to a request from the Office of the Vice President -- that's how I was briefed -- that required an answer.

The decision was made by the operations people at the CIA, after a meeting that I had with the analytical community, to ask me if I would go and help answer some of the questions that still remained so that we would better understand the situation.

And let me also say that raising the question was perfectly legitimate. Indeed, it was an important question to raise. The vice president would have been derelict in not raising it.

Had, in fact, there been evidence of uranium sales from Niger to Iraq, it would have demonstrated conclusively that Saddam Hussein was attempting to reconstitute his nuclear weapons program. The fact that there wasn't evidence to that effect should have reassured the U.S. government that, at least on this side, there was no evidence.

BLITZER: All right. So at least you agree -- and I know you have in the past as well -- that the vice president never directly asked you to go or asked that anyone go, namely his staff just wanted some answers and it was the CIA's decision to then send -- dispatch -- someone to try to get some firsthand information?

WILSON: That's correct. And I've said that in my op-ed, and I've said it in an interview here, and I've said it every time since.

[TM]

The idea that Rove knew he was leaking classified info to Cooper is based on Cooper's story:

The notes, and my subsequent e-mails, go on to indicate that Rove told me material was going to be declassified in the coming days that would cast doubt on Wilson's mission and his findings.

Some lefties like to believe it was Plame to which Rove referred with a guilty conscience. Righties are quite sure he was referring to Tenet's statement, which came out later that day. And we hope that it never occured to Karl that maybe her CIA role was classified (and that ignorance is legal bliss).

So, does Rove get busted for leaking in the morning something that was released that afternoon?

And good point about Kristof and Wilson - if the Tenet info was still classified in July, how come Wilson was talking about it in May? Or can Wilson describe his personal adventure, since he did not sign a confidentiality agreement?

My guess is that Fitzgerald will pass over the leaks about the trip, in which case there might be a selective prosecution question, as Keith noted. Of course, that amount to the "Everybody does it" defense, but everybody does do it.