More on the Espionage Act

Two pro-Rove lawyers weigh in.

Tom Maguire, worried lest I should tear my hair out in frustration, links to an analysis of the Espionage Act question by the Baseball Crank, who knows more of the relevant caselaw than I do, and to another by Dale Franks. All three would desperately like to believe that Karl Rove won’t go to jail — just as I desperately hope that he will — but that doesn’t make what they say wrong.

Both the Crank and Franks more or less conclude that, on its face, the Espionage Act applies to Rove’s reported conduct.

The Crank points out that proving some if its elements in open court might compound the damage to national security, and that the risk of damage might deter prosecution. In other words, Rove and his co-defendants might be able to practice “graymail.” That’s a fair point, but my understanding is that the Reagan-era anti-graymail laws work pretty effectively.

The Crank also raises an excellent point that I should have mentioned: since the IIPA covers some of the same territory already covered by the Espionage Act, do the IIPA provisions in effect narrow what would otherwise be the scope of the EA?

He’s surely right that my broad reading of the EA would make the IIPA almost, or perhaps entirely, redundant: virtually no case could be brought under IIPA that couldn’t equally well be brought under EA. (“Why, then, would Congress have passed it?” I hear you ask. “Because,” I reply, “Congressfolk wanted a chance to vote against Counterspy, but the civil liberties lobby was strong enough back then to insist that the new law be strictly limited in scope.”)

But the courts are reluctant to find that one law repeals another unless the law says as much, and IIPA nowhere refers to EA.

The Crank reads the caselaw as tightening the scienter requirement of the statute in a way that would allow Rove to claim that he didn’t know Plame’s identity as a CIA officer was classified, or that, if it was, he didn’t have reason to believe that disclosure could be used to damage the country. Again, maybe that’s right, but the law uses the term “willful” only with regard to the communication itself, not to the belief that it might be damaging. And, as the Crank notes, the case he relies on preceded a Congressional amendment greatly weakening the scienter requirement from “reason to believe the information is to be used” to “reason to believe the information could be used.” The Crank doesn’t consider the question whether classification in itself constitutes “reason to believe” that information if released would be damaging.

The Crank and Franks argue — and I agree — that, as written, the Espionage Act is overbroad as a matter of policy, especially because it criminalizes the receipt of damaging information as well as its leakage, thus threatening reporters with prosecution.

Franks imagines that a prosecution of Rove under the Espionage Act would rally the press to his side, out of fear that the Espionage Act could become in effect an Official Secrets Act. (I would note that the reporters in question would have a very strong defense on the element of “reason to believe;” they don’t have security clearnances, and they would have no reason to suspect that information given them freely by a senior official was likely to be damaging if published.)

Surely, if prosecutors overused the law, and in particular if they used it to prosecute reporters for publishing accurate information, they could lose the law, either to a Supreme Court decision on First Amendment or vagueness grounds or to Congressional action to cut back its overbreadth. The same is true of the false statements law (18 U.S.C. 1001), which if read literally would criminalize most lobbying, PR work, and campaign oratory.

But the Crank and Franks both write as if the damage done by the White House revelation of Plame’s identity were an open question. It is, of course, in political and blogospheric terms. But those who have actually seen the evidence evince no such doubt. Fitzgerald — a career prosecutor who was chosen for his job as U.S. Attorney by a very conswervative Republican Senator and for his role as special prosecutor by Bush’s own Deputy Attorney General — obviously thinks he’s prosecuting serious crimes. So did the people in the CIA who made the criminal referral. So does Judge Hogan. So did the appeals court judges who heard the case, and in particular Judge Tatel.

If the Espionage Act is used to punish a serious breach of security which compromised intelligence sources and methods in regard to weapons of mass destruction, and is used to prosecute officials rather than reporters, I think it highly likely that a jury and appellate judges will hold still for that, and that the non-Murdoch press will sympathize with the prosecution and not the defense.

In general, I disapprove of passing laws that put excessive reliance on prosecutorial discretion. I wouldn’t mind seeing both EA and 1001 cut back to size (or RICO, for that matter). But the courts have tolerated such laws as long as the prosecutors have in fact remained discreet about their use. And if ever a case called for Espionage Act prosecution, this is that case.

I’m grateful to Tom Maguire for his concern about my hair, for paying attention to this issue, and for inducing some of the folks on his side of Blogland to do the same. So far the GOP spin that this case is about IIPA or nothing remains dominant in the mainstream press.

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: