Did Rove lie to the President?
    If so, was that a crime?

If Rove knowingly misled the President about his involvement in outing Valerie Plame Wilson, he probably committed a felony by doing so.

Murry Waas reports that both Karl Rove and George W. Bush told investigators that Rove told Bush in 2003 that Rove “had not disclosed to anyone in the press that Valerie Plame, the wife of an administration critic, was a CIA employee.”

If Rove in fact said that, he said what was not true, according to Matthew Cooper’s testimony and contemporaneous notes, as Cooper has written about them:

As for Wilson’s wife, I told the grand jury I was certain that Rove never used her name and that, indeed, I did not learn her name until the following week, when I either saw it in Robert Novak’s column or Googled her, I can’t recall which. Rove did, however, clearly indicate that she worked at the “agency”–by that, I told the grand jury, I inferred that he obviously meant the CIA and not, say, the Environmental Protection Agency. Rove added that she worked on “WMD” (the abbreviation for weapons of mass destruction) issues and that she was responsible for sending Wilson. This was the first time I had heard anything about Wilson’s wife.

There has already been discussion of the possibility that Rove could be charged with making false statements to investigators in the interviews where he conveniently “forgot” his conversation with Cooper, as Martha Stewart was charged with making false statements to the FBI about stock transactions which were later judged to not have been, in themselves, criminal. Waas goes over some of that ground in the final third of his story, and one of his sources raises the possibilty that Rove’s misstatement to the President, if it was intentional, might have been a violation of law:

“The president is the top law enforcement official of the executive branch,” said Rory Little, a professor of law at the University of California and a former federal prosecutor and associate attorney general in the Clinton administration. “It is a crime to make a false statement to a federal agent. If the president was asking in that capacity, and the statement was purposely false, then you might have a violation of law.”

But the statute in question — 18 U.S.C. 1001 doesn’t say anything about “law enforcement” or “federal agent.” The relevant 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.]

It would be hard to argue that when Bush asked his chief political operative whether he’d helped “out” a CIA officer, he was acting on “a matter within the jurisdiction” of the executive branch. If Rove had answered “yes,” for example, Bush might properly have fired him. So if Rove deliberately made a false statement or tried to cover up the truth, his conduct was squarely within the language of the statute. (We’ve been over this ground before; what’s new is Waas’s confirmation that Rove had told Bush that Rove wasn’t involved, or at least that both of them said that to investigators.

As I said in that earlier post, GWB may find himself 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.

As I also noted back then, 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.

Footnote: Waas’s piece, which came out before David Johnston’s mention of the Espionage Act, recites what was then the Beltway conventional wisdom that unless the leakers could be charged under the Intelligence Identities Protection Act then Fitzgerald would be reduced to charging ancillary crimes such as perjury, obstruction of justice, or false statements.

My guess — and it’s no more than that — is that Fitzgerald will indict on a mix of substative Espionage Act charges and perjury/obstruction/false statement charges, with some conspiracy charges to tie it all together and to involve those who participated in the decision of the White House Iraq Group to go after Joseph Wilson but who can’t be shown to have committed any specific criminal acts themselves.

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