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How Rove may weasel out of trouble if he's the Plame source


Rove the Toad will get as much mileage out of the word “knowingly” as he can; Time magazine’s Matt Cooper could be wearing the orange jumpsuit soon for not giving up his sources.

Time has turned over reporter notes and emails, but it’s not going to be enough for Special Counsel Patrick Fitzgerald. He wants Judith Miller and Matt Cooper to testify; he turned down a proposal for home detention instead of jail time. Notice Novakula continues to get a pass.

Allowing the reporters home confinement would make it easier for them to continue to defy a court order to testify, he said. Special treatment for journalists may “negate the coercive effect contemplated by federal law,” Fitzgerald wrote in filings with the court.

Plame’s name was first published in a 2003 column by Robert Novak, who cited two unidentified senior Bush administration officials as his sources. Novak has refused to say whether he has testified or been subpoenaed.

Cooper wrote a subsequent story naming Plame, and Miller gathered material but never wrote an article. Time turned over Cooper’s notes and other documents last week, four days after the Supreme Court refused to consider the case. Cooper’s attorneys argued that producing the documents made it unnecessary for him to testify.

Miller and Cooper could be ordered to jail as early as Wednesday when U.S. District Judge Thomas Hogan will hear arguments from Fitzgerald and lawyers for the reporters about whether they should testify.

I want this bastard out of there as much as the next person, but as with all things political, you look for the escape hatch. In The Nation, David Corn raises an interesting, and sadly, plausible way that Karl Rove could weasel out of serious trouble if he is proven to be the leak. The plan is being hatched as we speak, I’m sure.

Rove’s lawyer stated that Rove did not “knowingly” disclose classified information. Does this mean he “unknowingly” revealed such information? The distinction is important because the Intelligence Identities Protection Act essentially says that for a crime to have been committed the offender must have realized that he or she was disclosing top-secret information. (Otherwise someone could be prosecuted for making an honest mistake.) True, Rove’s mouthpiece also said that Rove “did not tell any reporter that Valerie Plame worked for the CIA.” But his use of the word “knowingly” can be read by those wishing to see Rove frog-marching as the start of a criminal defense strategy.

It is not too difficult to envision such a defense being concocted should any White House official come to be officially accused. The law only covers government officials with “authorized access to classified information” and who “intentionally” disclose information revealing the identity of “a covert agent…that the United States is taking affirmative measures to conceal.” Consider this scenario. Rove–let’s just use him as an example–hears someone at a meeting say, “Wilson’s wife, Valerie Plame, does counterproliferation work at the CIA and we hear she was involved in sending him to Niger.” Then he tells this information to Novak, not realizing that Plame is officially undercover (after all, CIA officials work undercover). He could then argue that he did not break the law.

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Pam Spaulding

Pam Spaulding