The New York Times says “espionage”

The news that Karl Rove is going back in front of the Plame grand jury seems to have shaken the inside-the-Beltway/mass-media conventional wisdom that, in the end, no one would be indicted for revealing Valerie Plame Wilson’s CIA identity.

Or so reports David Johnston of the New York Times:

Mr. Fitzgerald’s conversations with lawyers in recent days have cast a cloud over the inquiry, sweeping away the confidence once expressed by a number of officials and their lawyers who have said that he was unlikely to find any illegality.

(Note the no doubt unconsciously self-revealing phrasing; the confidence that the bad guys would get away with it is implied to be a sunny prospect, over which the threat of indictments is said to “cast a cloud.” File it under “What liberal media?”)

Having broken with the previous consensus as to the likelihood of indictments, Johnston then goes on to break what has seemed to be a taboo against mentioning what has long looked to me like the most plausible substantive charge. It’s buried deep in the 21st graf (and it took the sharp eyes of the Blue Mass. Group to find it) but there it is:

Recently lawyers said that they believed the prosecutor may be applying new legal theories to bring charges in the case.

One new approach appears to involve the possible use of Chapter 37 of the federal espionage and censorship law, which makes it a crime for anyone who “willfully communicates, delivers, transfers or causes to be communicated” to someone “not entitled to receive it” classified information relating the national defense matters.

Under this broad statute, a government official or a private citizen who passed classified information to anyone else in or outside the government could potentially be charged with a felony, if they transferred the information to someone without a security clearance to receive it.

Chapter 37 turns out to include our old friend 18 U.S.C. 793, the Espionage Act.

The media focus (until now) on the Intelligence Identities Protection Act, which, as has been pointed out ad nauseum, was deliberately written to be hard to violate, made the members of the White House Iraq Group seem much safer, in legal terms, than they were in fact. That, in turn, put Fitzgerald in a position where any indictment on a substantive charge (as opposed to perjury, false statements, or obstruction of justice) could be made to seem far-fetched, thus opening him to the treatment Ronnie Earle has been getting.

So if you’re rooting for the bad guys to get what they have coming to them, the Johnston story doesn’t report good news: it is part of the good news.

Footnote Johnston’s statement leaves out an essential element of the offense: the person revealing classified information must have “reason to believe” that the information “could be used to the injury of the United States.” But in the Plame case that element shouldn’t be hard to prove.

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: