WASHINGTON—Karl Rove talked. But did President Bush's deputy chief of staff break the law when he told a reporter that an administration critic's wife worked for the CIA?
Legal experts said the answer to that question was far from clear. It appears to hinge on whether Rove knew that Valerie Plame was a covert officer and blew her cover anyway.
It's a tough legal hurdle for Patrick Fitzgerald, the special federal prosecutor who has been investigating the Plame case for more than 18 months.
"He has to find somebody who would say Rove knew that she was covert, that he knew that the government was making an effort to hide her identity," said Philip Heymann, former deputy attorney general during the Clinton administration. "It would appear he is working very, very hard to prove that, because without it you don't have a crime."
Enacted in 1982 to protect undercover CIA officials, the Intelligence Identities Protection Act makes it a crime to intentionally identify a covert agent knowing that the U.S. government is taking "affirmative measures to conceal" their relationship with the United States.
The odyssey of the Plame case began with a trip to Africa in 2002 by her husband, former U.S. Ambassador Joseph Wilson, to investigate claims that Iraq had tried to buy yellowcake uranium for nuclear weapons. Wilson discounted the claims, setting a bizarre chain of events in motion: Plame's unmasking as a spy, a reporter being thrown in jail and a special prosecutor setting his sights on the White House.
The revelations about Rove came about after Time magazine turned over notes and e-mails from reporter Matthew Cooper earlier this month when Fitzgerald threatened to jail the journalist.
Cooper told his boss he had a telephone conversation with Rove five days after an article by Wilson, which criticized the Bush administration as manipulating intelligence on Iraqi weapons of mass destruction, was published on The New York Times' op-ed page on July 6, 2003. According to Cooper's e-mails, obtained by Newsweek, Rove told Cooper that Wilson's wife, whom he didn't name, "apparently works" for the CIA.
The e-mails were turned over to federal investigators after the Supreme Court refused to hear an appeal by Cooper and New York Times reporter Judith Miller. Both were seeking to keep their sources secret. Miller was sent to prison last week for refusing to reveal her sources to prosecutors. Cooper will testify before a grand jury after Rove waived confidentiality.
Plame's name first surfaced in a July 2003 column by Robert Novak, who has refused to comment on whether he's cooperating with authorities.
Rove's attorney Robert Luskin didn't return a phone call Tuesday but has said Rove didn't reveal Plame's name and that Fitzgerald has told the White House aide he isn't the target of the probe.
Fitzgerald's investigators also have questioned Bush; Vice President Dick Cheney; Cheney's chief of staff, Lewis Libby; and former White House counsel Alberto Gonzales, who's now the attorney general.
More than a year ago, President Bush pledged to fire the person who leaked Plame's identity. On Tuesday, White House spokesman Scott McClellan said Rove continued to have Bush's confidence. Several prominent Democrats have suggested that Rove, the architect of Bush's 2004 re-election campaign, be fired.
Even though Rove apparently didn't use Plame's name in talking to Cooper, legal experts said the criminal case against him wouldn't be hindered, because he used enough information about her to make it clear whom he was talking about.
Former federal prosecutor Lawrence Barcella said one large problem for Fitzgerald was that the statute making it a crime to identify a covert operative was virtually untested.
"There are 10,000 opinions out there on how to interpret the mail fraud statute but this (the leak case) is exceedingly complex and all new," Barcella said. "Understandable care is being taken to make sure you're not stretching the statute beyond what was intended."
Victoria Toensing, a former assistant attorney general who helped write the law, said in an opinion piece in The Washington Post in January that the law was being twisted beyond what was intended. She said Congress had intentionally adopted "a dauntingly high standard" for prosecutors to charge leakers and that Fitzgerald's case didn't appear to make the grade.
Former prosecutors speculate that Fitzgerald also could be putting together a conspiracy case. Or, if he's unable to prove the leak case against Rove or others in the White House, he could be laying the groundwork for perjury charges, depending on what those officials have told the grand jury.
That would echo Washington's other scandals—Watergate during the Nixon administration and the Monica Lewinsky affair of Clinton's tenure—in which the cover-up ends up being the problem.
But with the grand jury's dealings cloaked in secret and Fitzgerald not talking, Rove is facing a trial of public opinion.
"At this point his problem seems to be more political than criminal," former Deputy Attorney General Eric Holder said.
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(c) 2005, Knight Ridder/Tribune Information Services.
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