Can prosecutors get Rove under the Intelligence Identities Protection Act?

The consensus among pundits for months has been that it would be difficult to prosecute Rove or Libby under the Intelligence Identities Protection Act of 1982 because it requires proof of intent to disclose that protected identity.

Because of this, the right-wing punditocracy has been throwing up all sorts of defenses that would make "intent" hard to prove. I had bought that, without checking it. Fortunately, TomDispatch.com checked it for me. Guess what? Intent is not one of the elements of proof required to convict. He has a good analysis and discussion, but I want to see what I can do on my own.

My legal credentials are rather skimpy. I have a three semester hour course in business law, and two weeks training as a Second Lieutenant in how to act as either trial or defense counsel in a Courts Martial under the Uniform Code of Military Justice.

The UCMJ specifies the articles under which one can be tried and for each article, there is listed a set of elements of proof, all of which must be proven, in order to convict a person of that article.

The UCMJ used to helpfully list the elements of proof for each offense so we dumb lieutenants would know how to convict or defend someone. [About a year later the military courts system started requiring lawyers for both trial and defense counsel, so I never got to use those skill. Full Employment program of attorney, in my opinion.] Civilian lawyers look at each law and determine what the elements of proof are for themselves, but I think the Judge has to agree.

The question is if Karl Rove is guilty of violation of the Intelligence Identities Protection Act. I will also look at Libby where I know a little about his situation. It hasn't been as well publicized. Here, based on media reports, is what it looks like to me.

The law

First, let's look at the specific wording of the Code from Findlaw. U.S. Code : Title 50 : Section 421

"Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both."

Elements of proof

Here is how I break this down into the elements of proof. To convict someone you have to prove each of the following elements.

It must be proven that the accused:

1. having or having had authorized access to classified information that identifies a covert agent.
2. intentionally discloses any information identifying such covert agent
3. to any individual not authorized to receive classified information.
4. knowing that the information disclosed so identifies such covert agent.
5. [knowing] that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States.
   

So each of these must be proven to convict. 1. Access to the classified date, 2. Intentional disclosure to 3. an unauthorized person, 4. knowing that the data identifies a covert agent, and 5. knowing that the U.S. was taking action to conceal that data.

So, if all five fit, you must convict. [Johnny Cochran has a lot to answer for!]

Analysis

Both Rove and Libby had access to Valerie Plame's name and her status as a covert agent. Rove was specifically told by the CIA Public Affairs officer that disclosure of her name would be detrimental to the CIA. Twice. Possession of a security clearance and a job in the White House shows access to the data, and telling it to Matt Cooper shows that Rove in particular possessed the data. Rove and Libby are both guilty on element 1.

The statements of various reporters that both Rove and Libby provided Valerie Plame's identity to them makes each guilty on element 2 and 3, since reporters are by definition not authorized people to whom classified information can be given. Speaking to various reporters to get the story out clearly establishes intent to disclose the information under element 2. This was not a one-time accidental slip of the tongue. It was coordinated.

Stating her name and CIA affiliation to reporters shows guilt of element 4.

Rove also specifically told Matt Cooper that certain information "which was soon to be declassified" showed that Cooper was going the wrong way on the story clearly shows that Rove knew the data was classified, and knowing that, knew the CIA was taking affirmative action to protect her identity. Rove is guilty on element 5.

Also, if Rove ever even got near the Top Secret NoForn State Department Memo with Valeris Plame's name in it and the S - NF classification status next to her name, he is toast.

What does this mean in Court?

As I say, I am not an attorney, but if I were, I don't think that I would want to be Rove's Defense Attorney. It will be a real uphill climb defending him. But my guess is that a defense attorney would (will?) have to go after each item of the evidence presented by the prosecutor to discredit it. Some of that evidence is in the public domain, including Novak's newspaper reports, but a lot of it has only been written about.

I have little doubt that Fitzgerald will have his bases covered - unless someone gets to him somehow. That is always a possibility with the Bush administration, especially since this goes to the very core of the Bush Presidency.

One last question. The 'outing' of Valerie Plame was supposedly coordinated by the White House Iraq Group. While the members of that group probably did not themselves disclose Valerie Plame's name, it sure looks to me like they engaged in a conspiracy to do so.

According to Sourcewatch the members of the White House Iraq Group are:
Karl Rove
Karen Hughes
Mary Matalin
James R. Wilkinson
Nicholas E. Calio
Condoleezza Rice
Stephen Hadley
I. Lewis (Scooter) Libby

So what are the elements of the crime of criminal conspiracy? From Lawnerds.com.

A person is guilty of conspiracy if:

1. Two or more people agree to commit a crime, and
2. the people intended to enter into the agreement, and
3. at least one of the conspirators commits some overt act (such as some act of preparation) that furthers the conspiracy.

NOTE: A party is guilty of conspiracy when these elements are satisfied. The actual crime does not have to occur in order to hold someone accountable for conspiracy.

NOTE: A conspirator is guilty of all the crimes that his co-conspirator commits that 1) further the conspiracy and 2) were foreseeable.

Defense to Subsequent Crimes - Withdrawal

A person who is guilty of conspiracy does not have a valid defense if they withdraw, however, he has a valid defense to the subsequent crimes of the conspirators if he does the following:

1. engages in an affirmative act, and
2. the affirmative act gives notice to all co-conspirators that he is withdrawing, and
3. the co-conspirators have enough time to halt their plans to commit the crime.

I don't see how the members of the WHIG can avoid a conspiracy charge if Rove is charged with the crime.