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For two years the Valerie Plame case has played out mainly in a series of anonymously sourced newspaper reports. But this week the grand jury and special prosecutor Patrick Fitzgerald are finally expected to get their say. If the grand jury does indict one or more defendants, a range of criminal statutes could come into play, experts tell Legal Times. For starters, white-collar defense lawyers believe it is unlikely anyone will be indicted under the law that initiated the investigation: the Intelligence Identities Act of 1982. That’s because the little-used law sets such a high bar for prosecutors. In order for there to be a violation, a defendant first has to have “authorized access to classified information that identifies a covert agent.” Then he or she must intentionally disclose the agent’s identity while also “knowing . . . that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship.” “I’d be real surprised if you had a charge that goes to the underlying statute,” says Eric Holder, a partner at Covington & Burling and a former U.S. deputy attorney general. Proving that Karl Rove or I. Lewis “Scooter” Libby was aware that the CIA was taking affirmative measures to hide Plame’s identity would likely require some sort of smoking-gun document or an admission by Rove or Libby. One document, a 2003 State Department memo that contained information on Plame, was given to then-Secretary of State Colin Powell a week before she was outed by syndicated columnist Robert Novak, according to The Washington Post. The paragraph with information on Plame was marked “S,” signifying it as containing information classified as secret. But Rove’s lawyer, Robert Luskin, has said that Rove didn’t see the memo until it was shown to him by the special prosecutor. Another relevant law, and one with a much lower burden of proof, is the Espionage Act of 1917. The act criminalizes the disclosure of national defense information merely through “gross negligence.” That law was used last month to extract a guilty plea from Lawrence Franklin, a former Pentagon analyst who gave classified material to the American Israel Political Action Committee (AIPAC). “I expect they’ll get the same thing Franklin was indicted for,” says one white-collar lawyer involved in the Plame case. In the AIPAC case, however, Franklin was accused of not only disclosing information from classified materials but also of faxing a typed copy of certain classified documents to AIPAC executives. In the Plame case the only (known) activity under investigation is the disclosure of a CIA agent’s identity, which is not something that has traditionally been thought to fall under the Espionage Act. “In 1982 the DOJ took the position that [the Espionage Act] didn’t cover intelligence identities,” says Joseph diGenova, a white-collar defense lawyer who served as U.S. attorney for the District of Columbia during the Reagan administration. That, notes diGenova, is exactly why the Justice Department pushed for the passage of the Intelligence Identities Act. That would seem to rule out the use of the act to prosecute White House aides for blowing Plame’s cover in conversations with reporters. But in Judith Miller’s published account of her grand jury testimony, it was clear that Fitzgerald took a particular interest in whether Libby had shared other government secrets with reporters and whether he had shown them any documents. “In my grand jury testimony, Mr. Fitzgerald repeatedly turned to the subject of how Mr. Libby handled classified information with me,” she wrote in The New York Times. “Mr. Fitzgerald asked if I had discussed classified information with Mr. Libby. I said I believed so, but could not be sure.” The prosecutor asked her if Libby had shown any documents to her, and “I said no, I didn’t think so,” Miller wrote. “I thought I remembered him at one point reading from a piece of paper he pulled from his pocket.” In lieu of an indictment over the disclosure, Fitzgerald could opt to fall back on those reliable cover-up offenses: perjury, obstruction of justice, making false statements, and conspiracy. Such charges are more likely given the duration of the investigation and potential inconsistencies among the testimony of Rove, Libby, and the news reporters. Of potential interest are statements White House spokesman Scott McClellan made in the fall of 2003 that appear to contradict later testimony before the grand jury. When asked, in September 2003, whether Rove was the source of the leak, McClellan responded: “It is simply not true. . . . I mean, it’s public knowledge. I’ve said that it’s not true. And I have spoken with Karl Rove.” Days later, McClellan was quoted in The New York Times saying Libby “neither leaked the classified information, nor would he condone it.” If Libby or Rove was less than candid with McClellan about his discussions with reporters, then McClellan’s testimony could be used to show a pattern of deception on the aide’s part. Or if both aides were truthful with him about the leaks, and McClellan then conspired to help cover their tracks, he too could be in hot water. McClellan testified before the grand jury in February 2004. There’s also the potential that Fitzgerald will conclude that no crime has been committed. “Pat’s the type of guy with the intestinal fortitude to walk away if there’s nothing there,” says Holder. Intestinal fortitude indeed: Such a decision would be an admission that the two-year investigation, which has cost close to $1 million and absorbed the energy of some of Washington’s most powerful figures, was all for naught.
Jason McLure can be contacted at [email protected].

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