Misprison and Conspiracy Under the Intelligence Identities Protection Act: The White House is Vulnerable, But the Reporters Aren’t

After I suggested that people in the White House other than the ones who actually called reporters and revealed that Valerie Plame works for the CIA might be vulnerable to charges of conspiracy or misprision, a reader asked whether the same might apply to the reporters who were offered the story and declined it. They, too, knew of a crime (assuming they knew of Plame’s covert status).

It turns out that the Intelligence Identities Protection Act is carefully drafted to include the other folks in the government (at least any of them with security clearances, which includes everyone at the top) but to exclude anyone non-governmental, including reporters.

Here’s the relevant passage (50 U.S.C. 422):

(b) Conspiracy, misprision of felony, aiding and abetting, etc.

(1) Subject to paragraph (2), no person other than a person committing an offense under section 421 of this title shall be subject to prosecution under such section by virtue of section 2 or 4 of title 18 or shall be subject to prosecution for conspiracy to commit an offense under such section.

(2) Paragraph (1) shall not apply

(A) in the case of a person who acted in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, or

(B) in the case of a person who has authorized access to classified information.

That means that if the President “knows” Rove is innocent because he knows that someone else is guilty, and if he hasn’t reported that knowledge to the Justice Department, Bush himself could be vulnerable. It also means that Rove could be criminally liable even if he never personally revealed any classified information to a reporter. (His biographer [*] doubts that anything this size cold have happened “without Karl checking the yes box.”) But the reporters are clearly out from under.

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