Did Karl Rove make a criminal false statement
    to George W. Bush?

Lying to a federal official about an official matter is a felony. So if Rove lied to the President, he’s in trouble. And if he told the President the truth and the President lied to the investigators, then the President is in trouble. Either way, the President could find himself in court.

Scott McClellan’s refusal today to repeat his assertion that GWB “knew” that Karl Rove had no hand in unmasking Valerie Plame provides fertile ground for speculation, so let me start plowing that ground.

It seems to me that we may, in the course of the Valerie Plame investigation and subsequent trial, discover what the President knew and when he knew it. The results could be explosive. And the reason is a strange and sweeping bit of federal law called 18 U.S.C. 1001, colloquially “false statements” or “fraud against the governmnent.”

There has already been lots of discussion of what’s become known as the “Martha Stewart” offense: lying to investigators even where the underlying matter isn’t, or can’t be proven to have been, criminal in itself. It has been speculated that, failing indictments on the substance of the Valerie Plame affair, Karl Rove or someone else might be indicted for lying to the FBI or the prosecutor (or, of course, committing perjury before the Grand Jury).

But it’s worth noting that the offense in question isn’t, as a matter of law, lying to investigators; it’s lying to anyone (which must, in context, mean “any official”) about “any matter within the jurisdiction of the … Government of the United States.”

The provision reads in full:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

[The “otherwise provided” has to do with limitations on the scope of the law as it applies to the courts and the Congress; there are no exceptions for matters within the jurisdiction of the Executive branch.]

So if George W. Bush asked Karl Rove “Did you talk to any reporters about Joe Wilson’s wife?” and Karl Rove said, “No, sir,” Karl Rove committed a felony. And if Karl Rove said “Yes, sir” and the President then told the special prosecutor otherwise, then the President committed a felony.

Scott McClellan’s earlier — and now seemingly inoperative — statements about the President’s “knowledge” of Rove’s innocence certainly lay the basis for the prosecutor to find out exactly who said what to whom in the White House. And under the precedent set in the Jennifer Flowers case, any claim that the President is exempt from being forced to testify would be extremely difficult to sustain.

GWB may, therefore, be in a position where he has to incriminate either himself or Karl Rove, and find himself either a witness against, or a co-defendant with, his chief political adviser.

Would Patrick Fitzgerald have that much nerve? It seems far-fetched. But on the record so far, I see no reason to doubt it.

Footnote It’s entirely possible that, as 18 U.S.C. 1001 is written, it criminalizes too much. (If read literally, as banning any false statement to anybody about a matter under federal jurisdiction, it would criminalize most lobbying and public-relations activity.) I wouldn’t object to an effort to cut back its scope.

But right now, and for many years, it’s been the law of the land, and lots of people have gone to prison for violating it: for lying about their personal histories in employment background checks, for example. So I see no moral or legal reason to cut either Bush or Rove any slack.


Two more things to note:

1. The statute criminalizes, not just false statements, but any attempt to cover up a material fact. So artful verbal dodging might not be enough to avoid criminal liability.

2. Scott McClellan said at a briefing (1) that he’d talked to Rove and (2) that Rove was uninvolved. From Cooper’s notes, Rove was certainly involved. If Rove lied to McClellan, that too would have been covered by 18 U.S.C. 1001. If McClellan lied to the press corps as part of a scheme to cover up a material fact, I’m not sure. But it seems likely that the Grand Jury will want to have a long confidential chat with Mr. McClellan. In that forum, his usual evasion and bluster won’t wash.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com