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Plame: The Defense Makes Its Opening Statement

It's always been apparent that Mike Allen of the Washington Post knows somewhat more than he's able to say about the Valerie Plame scandal. He may well know who it was that contacted Robert Novak and encouraged him to print the story that Plame was a CIA "operative" and had encouraged her husband's trip to Niger, in order to discredit Ambassador Wilson's accurate report that Iraq was not buying yellowcake uranium.

Today he has a story that also must be hiding something, because the story is bizarre on its face, but I can't figure out quite what the something else is:

Justice Could Decide Leak Was Not a Crime (washingtonpost.com)

CRAWFORD, Tex., Jan.1 -- The Justice Department investigation into the leak of a CIA agent's identity could conclude that administration officials disclosed the woman's name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week. "It could be embarrassing but not illegal," said Victoria Toensing, who was chief counsel of the Senate Select Committee on Intelligence

It's always seemed possible that, if the White House couldn't get someone at roughly the John Dean level to take the fall, it would turn to the "how were we supposed to know she was undercover?" defense. So presumably this is the opening shot of that lame-ass defense against a charge of treason. But a couple of questions are raised by the story:

First, it's not news that Justice "could" decide that the disclosure was not made knowingly, and therefore wasn't a crime. Based on what is publicly known, it seems unlikely, but it's always been possible. So why did Allen decide that the possibility was a story today? He doesn't quote anyone, either on the investigative side or within the White House, who says that it is any more likely than before. But note that the byline is Crawford, Texas. (He's the White House correspondent, so he's where the President is). He's isolated with the White House staff on New Year's day, and it's hard to reach most of his other sources in DC. This is White House spin, nothing else. So we can surmise that the option of letting some lower-level official twist slowly in the wind is no longer available to them, and they've gone to plan B.

Second question: Why does the lead say, "legal experts said..." it might not be a crime, but the one and only expert cited is Victoria Toensing, a completely partisan Washington bottom-feeder? (See this wonderful article from Slate, now almost six years old, in which Jacob Weisberg shows that Toensing and her husband, former prosecutor and fellow TV pundit Joe DiGenova, were probably conduits for leaks to the press from Ken Starr's investigation. As Weisberg concludes (referring to various investigative jobs that the couple had landed, at the same time that they were ubiquitous on Fox News), "the problem with Toensing and DiGenova is "that their myriad, dubious, and overlapping roles keep piling up without ever being properly explained. It's like one of those Westerns where the town barber is also the postmaster and the saloonkeeper. In the next scene, it turns out he's the sheriff too.")

While Toensing appears to be qualified to answer the question of whether an unknowing disclosure of an undercover agent's identity might not be a crime, Allen quotes her myriad and dubious views on two other matters:

"The fact that she was undercover is a classified fact, so it would not be unusual for people to know that she was agency but not know she was undercover," Toensing said.

Really, does that make any sense at all? Is it really "not unusual"? In effect, Toensing is saying that the fact she worked for the CIA and the fact that she was undercover are somehow separate, unrelated facts. But they're the same fact. If it's well-known that a person works for the CIA, then by definition, the person is not undercover. It seems to me that in this case, the burden of proof would fall on the defense to show that this was a well-known fact, and that she was, for all practical purposes, not really undercover. But I think that question has been well researched by the press, and in everything I've read, I haven't seem one supported citation of a person who said that they knew she worked for the CIA.

It also seems that, if you are an employee of the United States Government, working in the White House, and you happen to learn through some inside channel that someone works for the CIA, you have an obligation to assume that the person is undercover unless you know otherwise before you contact reporters and actively encourage them to print the agent's name.

And Toensing also has other opinions:

Toensing said that administration efforts to encourage reporters to look into the connection between Plame and Wilson could have been "typical Washington talk" and would not "even begin to qualify as a dirty trick."

I'm glad to hear that the legal definition of a "dirty trick" is so clear-cut. Guess we don't have to worry about that anymore.

And in his last few paragraphs, Allen alludes to the very legalistic formulation that the White House spokesman, Scott McClellan, had earlier used to fight off questions about the case: refusing to answer whether any White House staff disused Plame with reporters, but insisting that no White House official had "leaked classified information," a somewhat different formula. Allen concludes,

A senior administration official said Bush's aides did not intend to mount a legalistic defense, but two GOP legal sources who have discussed the case with the White House said the careful, consistent wording of McClellan's statements was no accident.

"If they could have made a broader denial, they would have," said a lawyer who is close to the White House. "But they seem to be confident they didn't step over the legal line."

But the wording of McClellan's denial is not actually consistent with the argument that the leaker did not know that Plame was undercover. The fact that she was undercover, and the inseparable fact that she worked for the CIA, were equally classified information. Anyone who leaked that information, in either form, would have "leaked classified information." If they did not do it knowingly, that is, if they did not know she was undercover and therefore did not know the information was classified, then they may not have committed the specific crime of knowingly revealing an agent's identity. But classified information is classified information. McClellan's legalism does nothing to lay the groundwork for the defense of ignorance.

But Mike Allen has always seemed to be a really good reporter. There must be something more to this story. It might be time for Karl Rove to see if Mark Geragos can handle another client.

(Oh, I knew this would happen -- just before I finished this post, Josh Marshall came in with almost exactly the same thing. Oh well, serves me right for trying to poach on his territory.)

Posted by Mark Schmitt on January 2, 2004 | Permalink


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Don't be so hard on yourself. As much as I love Marshall, you came up with some observations that he missed (or choose not to write about). :)

Posted by: american woman | Jan 2, 2004 3:26:23 AM

I second the motion.

Posted by: penalcolony | Jan 2, 2004 8:14:59 AM

Agree with the other commentors. Yours was a good and informative analysis.

Posted by: poputonian | Jan 2, 2004 10:15:33 AM

Don't forget the initial spin from Republicans: it was "common knowledge" that she was CIA operative.

Posted by: BudMan | Jan 2, 2004 11:23:33 AM

i especially like the "dirty tricks" quote!
I *really* want to know where the line stops & starts for something to be considered a "dirty trick"!!!!

Posted by: n69n | Jan 2, 2004 12:32:54 PM

Great post. Nice to see two smart, informed commentators reaching similar conclusions. Mike Allen, if you're out there, keep up the good work, but don't get snookered...

Posted by: praktike | Jan 2, 2004 2:20:09 PM

Mr. Schmitt,

I just arrived at your weblog today, via a link from the Trometter Times. Your blog looks really nice. If you're interested, you can check mine out; it was started over a year ago... I am a staunch conservative, and I have also been opposing many of the policies of the Bush administration, such as the Iraq war. (My past war-related entries are archived at this blog; they are still at the main blog, though.)

With regard to the Valerie Plame affair, the news that my state's premier prosecutor, the famous Patrick Fitzgerald, is being called in on this case, is significant to many of us who know about what he has been doing in our state. Check out my thoughts about this posted in a comment at Dustin's blog.

As I said there, it is great that Mr. Fitzgerald is being called in on this... We may now actually see some progress made in this matter. I think that some people in the previous Republican administration here in Illinois have been quite upset at the fact that U.S. Senator Peter Fiztgerald (R-IL) brought in Patrick Fitzgerald (no relation) to clean up the mess within our party. Just as the corruption within the past Illinois executive administration has been investigated by our state's premier prosecutor, the misdoings regarding the Valerie Plame affair will hopefully be investigated in the national administration.

As I said above, you have a nice weblog. Keep up the good work, and Happy New Year!

Posted by: Aakash | Jan 2, 2004 9:32:21 PM

Alternate headline:

Plame Name Fame Blame Game Counterclaim Flame Selfsame, Lame

Posted by: Frem | Jan 4, 2004 10:26:17 PM


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