Is Rove vulnerable to criminal charges? Mark Kleiman says yes.

There are a lot of people blogging that it is unlikely that Karl Rove can be proven guilty of violating the Intelligence Identies Protection Act ( 50 USC § 421 ).

Mark Kleiman agrees. He lists the items to be proven as "(1) authorized access to classified information, (2) learning the identity of a covert agent (3) intentional disclosure of information identifying the agent to (4) an individual not authorized to receive classified information (5) knowledge that the information identifies a covert agent and (6) knowledge that the United States is taking "affirmative measures" to conceal the agent’s role. For the purposes of the bill, someone is a "covert agent" only if he or she has "served overseas" within the previous five years, creating an effective seventh element." It isn't likely that it can be proven that Rove violated item (6).

Mark then goes on the list the element of proof of violation of the "Espionage Act: (1) possession of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) wilful communication of that information to (6) a person not entitled to receive it.

Under the Espionage Act, the person doing the communicating need not actually believe that revelation could be damaging; he needs only "reason to believe." Classification is generally reason to believe, and a security-clearance holder is responsible for knowing what information is classified.

Nor is it necessary that the discloser intend public distribution; if Rove told Cooper -- which he did -- and Cooper didn't have a security clearance -- which he didn't -- the crime would have been complete.

And to be a crime the disclosure need not be intended to damage the national security; it is only the act of communication itself that must be wilful."

Mark also demonstrates several events that suggest this is the direction Fitzgerald seems to be taking. I hope so. Rove needs a felony on his record, though I'll bet that if he is convicted, Bush will pardon him.

It's also a crime to "cause" such information to be communicated, for example by asking someone else to do so.

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Addendum 07-15-2005
John Dean weighs in on the legal danger Rove is in. Dean refers to the legal precedent of Jonathan Randel.

Randel, a Ph.D. in history, was working in the Atlanta office of the DEA as a Drug Enforcement Agency analyst. He leaked the name of British Lord Michael Ashcroft (a major contributor to Britain's Conservative Party, as well as American conservative causes) stating that he was being ignored by DEA and its investigation of money laundering. It got picked up by the press, the Department of Justice got involved, and Randel was charged.

"Most relevant for Karl Rove's situation, count 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.

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 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 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.

There are stories circulating that Rove may have been told of Valerie Plame's CIA activity by a journalist, such as Judith Miller, as recently suggested in Editor & Publisher. If so, that doesn't exonerate Rove. Rather, it could make for some interesting pairing under the federal conspiracy statute (which was the statute most commonly employed during Watergate)."

This will allow Fitzgerald a lot of freedom to go after Rove.

All of the Republican defenses are about trying to make the various laws that might apply to what Rove did look a lot more narrow than they really are. I doubt that Fitgerald or any honest Judge will buy the right-wing PR snow storm currently being spred across the media.