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Fitzgerald Plays Hardball in Leaks Probe

Special Prosecutor Patrick Fitzgerald is wielding every ounce of power he has over Time Reporter Matthew Cooper and New York Times Reporter Judith Miller:

A federal prosecutor on Tuesday demanded that Time magazine reporter Matthew Cooper testify before a grand jury investigating the leak of a CIA officer's identity, even though Time Inc. has surrendered e-mails and other documents in the probe.

Special Counsel Patrick Fitzgerald also opposed the request of Cooper and New York Times reporter Judith Miller to be granted home detention -- instead of jail -- for refusing to reveal their sources.

What is Fitzgerald looking for with Cooper? Is it perjury or conspiracy to commit obstruction of justice or making a false statement to a federal official? I can think of a few questions Fitzgerald might want to ask Cooper to circumstantially establish Rove's possible criminal intent - but while they might amount to probable cause and be enough to indict, I'm not sure any of them would be enough for proof beyond a reasonable doubt.

Also the primary requisite intent for the offense of disclosing the identity of a covert operative is intentionally and knowingly. Specific intent is a higher burden for the government to prove than just "knowingly." In other words, the disclosure must have been intentional and in making the disclosure he had to know he was both identifying a covert agent and that the United States was taking affirmative measures to conceal that agent's intelligence relationship to the U.S.

§ 421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources

(a) Disclosure of information by persons having or having had access to classified information that identifies covert agent.

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than ten years, or both. (my emphasis)

(b) Disclosure of information by persons who learn identity of covert agent as result of having access to classified information.

Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than five years, or both. (my emphasis.)

Which leads me back to wondering whether Fitzgerald want's Cooper's testimony to help establish Rove's mental state.

Digby makes a good point here:

I find Luskin's language a little bit interesting. He says Rove never "identified" Valerie Plame to Cooper. What does that mean exactly? Did he not identify her by name? Or did he not identify her as a CIA operative? In other words, did Karl Rove call up Matt Cooper and say, " Joe Wilson's wife is a CIA operative and she got him the job," which technically means that he didn't "identify" her, but he sure put old Matt on the trail. It wouldn't have been hard to find out who Joseph Wilson was married to. Or maybe he meant something else entirely. But the wording is unusual -- just as Clinton's wording "I did not have 'sexual relations'with that woman" was strange. Why didn't just say "sex"? Because he was carefully using a legal definition. When lawyers word things in a careful way like this, there's usually a reason for it.

Without access to the documents Time turned over, it's impossible to know what Fitzgerald wants and important to keep in mind that we're all just guessing.

Update 10:00 pm: I now think that Rove told the grand jury and/or a federal official that he disclosed Valerie Plame's name to Cooper but didn't know she was an undercover operative. Fitzgerald may be insisting on Cooper's testimony to ask him whether Rove ever indicated he knew she worked in an undercover capacity.

Update: It now looks like Rove may have admitted he disclosed that Joseph Wilson's wife worked for the CIA, but did not mention her name - he maintains he didn't know her name.

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  • Re: Fitzgerald Plays Hardball in Leaks Probe (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:51 PM EST
    I wonder whether there is any case law holding that certain government officials are presumed to have certain knowledge. If Rove properly knew of Plame's CIA status (why would Rove have reason to know that information?), then presumably he knew or should have known that she was a CIA NOC. There pretty clearly was a conspiracy to smear Wilson and hurt him through his wife. Someone told Rove about Plame. At least two senior officials called at least 6 reporters, suggesting coordination of effort by Rove. That's a conspiracy. Finally, I recently ran across a list of various other laws which might have been violated by Rove and others in outing Plame.

    Re: Fitzgerald Plays Hardball in Leaks Probe (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:51 PM EST
    TL: "Also the primary requisite intent for the offense of disclosing the identity of a covert operative is intentionally and knowingly." That's true, but it is well to remember that we, or Congress, was supposed to get a assessment from the CIA on how much of the nuclear-contraband spy network was destroyed or damaged by outing THE FRONT COMPANY. Suppression of that report? Mission accomplished. It is not 'one spy,' as in the proximal case. It could be hundreds of spies, thousands of informants, and serious damage for this political act of Rove. Or is it political, if its intent is treason? Proximal legal reasoning is one thing. In a case like this, it is probably too early to focus too narrowly on the damaged class, the scope of the crime, the felons involved. Should these journalists be used as part of the net, even harshly? That's another kind of hardball, one that threatens those who conspire with the likes of Rove. Rove's impunity has killed 1,750 GIs, and for sure Miller helped. Quite aside from legality, I have no sympathy for what she ultimately pays for the 'privelege' of betraying her country.

    Re: Fitzgerald Plays Hardball in Leaks Probe (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:51 PM EST
    421. Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources Reading the Code section, it's hard to believe that a political advisor would have legitimate access to information on CIA NOC's. If someone with the proper security clearance gave the Plame information to Rove, that person violated the Code. If Rove had access to the information, then it seems improbable that he can claim no to have known that Plame was undercover--however thin her cover might have been.

    Re: Fitzgerald Plays Hardball in Leaks Probe (none / 0) (#4)
    by ppjakajim on Sat Dec 17, 2005 at 01:00:52 PM EST
    et al - From the article:
    In other words, did Karl Rove call up Matt Cooper and say, " Joe Wilson's wife is a CIA operative and she got him the job," which technically means that he didn't "identify" her, but he sure put old Matt on the trail.
    Good heavens and shades of Deep Throat! Now if it wasn't illegal then, would it be illegal now?

    Re: Fitzgerald Plays Hardball in Leaks Probe (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:52 PM EST
    PPJ - according to Joe Wilson (see my last post), it was that Rove didn't know Plame worked undercover.