Let’s not go there

If you’re tempted for just a moment to think that it would be nice to have the old “independent counsel” statute back just long enough to get whoever burned Valerie Plame, this John Dean column [*] should set you back on the straight and narrow.

He comes up with a tortured, but not absurd, reading of the fraud and conspiracy laws under which any government employee who does something “not within the scope of his employment” — which presumably would include revealing the name of a CIA officer — has defrauded the government. For the purposes of 18 U.S.C. 371, it’s a conspiracy to defraud the government when two or more persons work together “for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.”

If that theory were correct, then any unauthorized revelation to a reporter would constitute a prosecutable conspiracy to defraud the government (the “conspiracy” consisting of the leaker and the reporter receiving the leak) as long as someone testifies that the result was to impair, obstruct, or defeat some lawful function.

In a previous column, Dean wazed appropriately eloquent in denouncing that doctrine, amounting to an “Official Secrets Act” — in the context of the Justice Department’s use of it to prosecute a DEA agent who told the Times of London that a major Tory Party contributor was suspected of money laundering. [*] The DEA agent, who was not paid for the information, is doing a year in prison.

Now it seems to me that information in criminal investigative files ought to stay there unless and until there’s a prosecution, and I would support a law criminalizing the release of such information, in parallel with the statute forbidding the release of tax return information. But the general doctrine that telling a reporter something your boss doesn’t want that reporter to know is theft of government property is an outrage, and not less outrageous just because it’s being applied to unmaskers of Valerie Plame.

An “independent counsel,” charged by law with prosecuting anything prosecutable, might have actually brough charges against White House officials under that cockamamie theory. A special counsel or the Justice Department, presumably would not. And though I’m happy to help beat up on the Attorney General, who applauded the DEA case as part of a general campaign against unauthoruized disclosure, for inconsistency, the custom his department tried to start in that case is truly one, in the original rather than the bastardized sense of Shakespeare’s words, more honored in the breach than in the observance: that is, better broken than kept.

It would be a horrible travesty if the Plame scandal became the means by which we adopted an Official Secrets Act via the back door.

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

One thought on “Let’s not go there”

  1. An argument against Dean's speculation

    A few days ago, I posted an entry about a column John Dean had written in which he said he believed that a criminal case might be able to be made against White House staffers who tried to push the…

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