Should Mr. Bush Demand to Know
   Who Outed Valerie Plame?
     Glenn Reynolds says “Yes”

The idea of having the President order the senior members of his Administration to say, in sworn statements, whether they were, or were not, the sources of the Valerie Plame revelation, and whether they have knowledge of others having done so, is attracting some attention, both in the form proposed in this space yesterday [*] and in a slightly different form (without the sworn statements or required tattling) offered by Nick Gillespie in Reason’s Hit & Run weblog [*].

Glenn Reynolds likes the idea [*] as proposed here, though he doesn’t specifically endorse the requirement to report on others. But he wonders how one could be sure that the guilty parties were on the list.

That’s a fair question. Certainty is not for mortal things, but the terms “senior administration official,” used by Novak, and “top White House official,” used by Mike Allen’s source, refer to rather small and well-defined groups of people. [*]

Eugene Volokh points out, and Dan Drezner agrees [*], that even if the parties sought were on the list of officials required to make statements, the project might fail because the miscreants, having boldly “outed” Valerie Plame as a covert intelligence officer, might have sudden bursts of prudence and decide not to “out” themselves. (Eugene refers to the Hit & Run version of the proposal; Dan applies Eugene’s comment to mine.) Certainly, the risk of failure would be present.

However, I can assign three reasons why the opposite might happen.

First, some people have scruples about lying, especially under oath.

Second, while revealing Valerie Plame’s status with the CIA might or might not have been provably a violation of law, lying under oath is slam-dunk. Even in unsworn statements, 18 U.S.C. 1001, makes it a felony punishable by five years’ imprisonment to “knowingly and willfully make[] any materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Fibbing to the President about a matter that relates to his management of his staff and Cabinet would seem to fall squarely within the four corners of that language, and the offense shouldn’t require unusual investigative or prosecutorial skills to prove or try.

And while extenuations, legal or moral, for the original revelation aren’t hard to imagine, it’s going to be much harder for people who work for the President to come up with excuses anyone will listen to for telling him a flat self-protective lie.

Third, the people who committed this crime, assuming he or she plausibly did it in the service of this President, can reasonably expect to be taken care of afterwards by one of the network of right-wing institutions that have sprung up partly for the purpose of rewarding those who have fallen on their moral swords in the cause of reclaiming America from the libruls. But that soft landing would be severely endangered by what would be seen as an act against, rather than for, the cause.

Moreover, the knowledge that others who may not themselves have any criminal liability now but might incur some by lying are being required to make their own statements would put almost intolerable pressure on the guilty parties. Lying might be safe if everyone could be counted on to stand firm, but not otherwise. And any conversation even hinting at an attempt to come to an agreement to stand firm together would look very much like a conspiracy to obstruct justice. Even to a dishonest person — should such a one happen to reside within the senior ranks of an administration premised on the restoration of honor and integrity to the White House — honesty might very well look like the best policy.

So I think it not unreasonable to be hopeful that the tactic proposed would work. (And, though it is hardly my place to offer public relations advice to the current Administration, it would certainly be a political masterstroke, forcing expressions of admiration from even such as I: assuming, that is, that the truth that emerged from the process was not too awful to contemplate.)

As far as I am aware, so far no one has suggested an actual disadvantage of the proposal, as opposed to giving reasons why it might fail. Unlike polygraphy or urine testing for illicit drug use, being asked to sign a sworn statement is neither insulting nor intrusive. (Those who scruple to swear may, of course, affirm instead.)

If the idea might do considerable good and could not do much harm, then what is there to be said against it? Unless someone can come up with a substantial objection, I think this course of action should be urged on the President by his friends as well as his foes.

And I claim that failure on his part to follow such advice would justify the inference that his actual desire to “get to the bottom of this” is weaker than his stated desire.

P.s. And while we’re at it, how about a no-pardon pledge? [*] That seems like a fairly straightforward idea.

Update Different Strings endorses the idea, and proposes it as a project for MoveOn. Sounds like a good idea to me. Who wants to propose it to decision-makers there?

Second update Eugene Volokh points out in an email that while making false statements under 18 U.S.C. 1001 is nominally a five-year felony, the sentencing guildelines call for an actual sentence of no more than six months, and permit a sentence as low as probation only. By contrast, the guideline sentences under the Intelligence Identies Protection Act (50 U.S.C. 421 and 422) are nearly as severe as the statutory maximum. [*] A guilty senior official thinking about how to answer a Presidential demand of the kind proposed might want to take those facts into account.

On the other hand, making a provably false statement could greatly increase a potential defendant’s vulnerablity to conviction under the IIPC, by showing a consciousness of guilt and by discrediting any exculpatory testimony the defendant might offer.

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:

One thought on “Should Mr. Bush Demand to Know
   Who Outed Valerie Plame?
     Glenn Reynolds says “Yes””

  1. One way the President could "get to the bottom of it"

    Mark Kleiman offers a great idea one of his readers, Michael Ham, submitted for President Bush to get at the truth of who outed Valarie PlameThe President should require every official in his administration at Executive Level II or higher…

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