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Monday, July 18, 2005

Leak Laws 

The requirements for a conviction under the Intelligence Identities And Protection Act of 1982 are exceedingly stringent, and while it may be well-nigh impossible for special proscutor Patrick Fitzgerald to nail Karl Rove on that count, the President's Brain may yet have to worry about an indictment based on the Espionage Act of 1917; the obvious violation of his SF312, or Classified Information Nondisclosure Agreement; obstruction of justice; or, depending on what he told the grand jury in earlier testimony, perjury. Former White House counsel John Dean, always looking for a fresh angle, mentions yet another statute that the Ashcroft DoJ invoked in a "relatively minor leak case that it vigorously prosecuted, though it involved information that was not nearly as sensitive as that which Rove provided Matt Cooper":
I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst, a PhD in history, working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft (a major contributor to Britain's Conservative Party, as well as American conservative causes) was being ignored by DEA, and its investigation of money laundering. (Lord Ashcroft is based in South Florida and the off-shore tax haven of Belize.)

Randel leaked the fact that Lord Ashcroft's name was in the DEA files, and this fact soon surfaced in the London news media. Ashcroft sued, and learned the source of the information was Randel. Using his clout, soon Ashcroft had the U.S. Attorney in pursuit of Randel for his leak.

By late February 2002, the Department of Justice indicted Randel for his leaking of Lord Ashcroft's name. It was an eighteen count "kitchen sink" indictment; they threw everything they could think of at Randel. Most relevant for Karl Rove's situation, Court One of Randel's indictment alleged a violation of
Title 18, United States Code, Section 641. This is a law that prohibits theft (or conversion for one's own use) of government records and information for non-governmental purposes. But its broad language covers leaks, and it has now been used to cover just such actions.

Randel, faced with a life sentence (actually, 500 years) if convicted on all counts, on the advice of his attorney, pleaded guilty to violating Section 641. On January 9, 2003, Randel was sentenced to a year in a federal prison, followed by three years probation. This sentence prompted the U.S. Attorney to boast that the conviction of Randel made a good example of how the Bush Administration would handle leakers . . . .

While there are other potential violations of the law that may be involved with the Valerie Plame Wilson case, it would be speculation to consider them. But Karl Rove's leak to Matt Cooper is now an established fact. First, there is Matt Cooper's email record. And Cooper has now confirmed that he has told the grand jury he spoke with Rove. If Rove's leak fails to fall under the statute that was used to prosecute Randel, I do not understand why.

There are stories circulating that Rove may have been told of Valerie Plame's CIA activity by a journalist, such as Judith Miller,
as recently suggested in Editor & Publisher. If so, that doesn't exonerate Rove. Rather, it could make for some interesting pairing under the federal conspiracy statute (which was the statute most commonly employed during Watergate).
We are always fascinated by Mr. Dean's observations, but we do find ourselves wondering how much of his research was in fact done thirty-plus years ago at his then-boss's behest.

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