Two years ago, when I first read the federal law protecting the identities of covert agents, my reaction was the same as everyone else who reads it -- this is not an easy law to break. That’s what I said on Hardball then in my first public discussion of the outing of Valerie Plame, and that’s what I said on CNN the other night. Let’s walk through the pieces that would have to fall into place for Karl Rove to have committed a crime when he revealed Plame’s identity to Matt Cooper.
First, and most obviously, Valerie Plame had to be a covert agent when Rove exposed her to Cooper. It’s not obvious that she was. The law has a specific definition of covert agent that she might not fit -- an overseas posting in the last five years, for example. But it’s hard to believe the prosecutor didn’t begin the grand jury session with a CIA witness certifying that Plame was a covert agent. If the prosecutor couldn’t establish that, why bother moving on to the next witness?
Second, Rove had to know she was a covert agent. Cooper’s article refers to Plame as “a CIA official.” Most CIA officials are not covert agents.
Third, Rove had to know that the CIA was taking “affirmative measures” to hide her identity. Doesn’t seem like the kind of thing a political operative would or should know.
Fourth, Rove had to be “authorized” to have classified information about covert agents or at least this one covert agent. Doesn’t seem like the kind of security clearance a political operative would or should have.
I’ll be surprised if all four of those elements of the crime line up perfectly for a Rove indictment. Surprised, not shocked. There is one very good reason to think they might. It is buried in one of the handful of federal court opinions that have come down in the last year ordering Matt Cooper and Judy Miller to testify or go to jail.
In February, Circuit Judge David Tatel joined his colleagues’ order to Cooper and Miller despite his own, very lonely finding that indeed there is a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources. He based his finding on Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop new privileges “in the light of reason and experience.” Tatel actually found that reason and experience “support recognition of a privilege for reporters’ confidential sources.” But Tatel still ordered Cooper and Miller to testify because he found that the privilege had to give way to “the gravity of the suspected crime.”
Judge Tatel’s opinion has eight blank pages in the middle of it where he discusses the secret information the prosecutor has supplied only to the judges to convince them that the testimony he is demanding is worth sending reporters to jail to get. The gravity of the suspected crime is presumably very well developed in those redacted pages. Later, Tatel refers to “[h]aving carefully scrutinized [the prosecutor’s] voluminous classified filings.”
Some of us have theorized that the prosecutor may have given up the leak case in favor of a perjury case, but Tatel still refers to it simply as a case “which involves the alleged exposure of a covert agent.” Tatel wrote a 41-page opinion in which he seemed eager to make new law -- a federal reporters’ shield law -- but in the end, he couldn’t bring himself to do it in this particular case. In his final paragraph, he says he “might have” let Cooper and Miller off the hook “[w]ere the leak at issue in this case less harmful to national security.”
Tatel’s colleagues are at least as impressed with the prosecutor’s secret filings as he is. One simply said “Special Counsel’s showing decides the case.”
All the judges who have seen the prosecutor’s secret evidence firmly believe he is pursuing a very serious crime, and they have done everything they can to help him get an indictment.