A bull market for CIA leak investigation speculators

Note: this item has been updated at bottom to reflect a prognosticative meltdown.

Special counsel Patrick Fitzgerald is expected to reveal today whether he has handed up indictments arising from his investigation into the July, 2003, outing of covert CIA operative Valerie Plame Wilson. With the prosecutor’s office hermetically sealed against leaks — a circumstance that has official Washington fuming — most of what we know, or are told we know, comes from anonymous grand jury witnesses and leaks from lawyers and other interested parties associated with Fitzgerald’s subjects. During the past week, and especially the past 48 hours, the leak factory has gone nuts.

While most of the market is focusing on events of the past week and particularly the past 48 hours, we’re eschewing the Short Attention Span Theatre gambit in favor of working the wayback machine. And we’re predicting what absolutely no one else has: Fitzgerald will bring at least two indictments, one of which will be under the much-maligned Intelligence Identities Protection Act (IIPA), a potential violation of which sparked the investigation.

Before we get into the details of that, though, a quick roundup of national press rumor-mongering reporting and other speculation is in order.

The New York Times is reporting that Fitzgerald will announce that Scooter Libby, vice president Dick Cheney’s chief of staff, is charged with making false statements to the grand jury, while Karl Rove won’t be charged but will remain under investigation.

Operating under a new, post-Judy Miller transparency regime, Times reporters David Johnston and Richard Stevenson attribute their information to “people briefed officially about the case,” a less than graceful construction that either pointlessly avoids naming the prosecutor’s office as the source of the briefing or falsely implies it, and is, we’ll bet, exactly the wording the sources insisted upon.

As rumors coursed through the capital, Mr. Fitzgerald gave no public signal of how he intended to proceed, further intensifying the anxiety that has gripped the White House and left partisans on both sides of the political aisle holding their breath.

Mr. Fitzgerald’s preparations for a Friday announcement were shrouded in secrecy, but advanced amid a flurry of behind-the-scenes discussions that left open the possibility of last-minute surprises. As the clock ticked down on the grand jury, people involved in the investigation did not rule out the disclosure of previously unknown aspects of the case.

Yes, well, if that doesn’t sum up the situation, nothing does.

The suggestion that Fitzgerald may extend the grand jury’s term coincides with a report on Wednesday that Fitzgerald had leased new office space. Steve Clemons posted and then retracted the report on his widely read and usually accurate Washington Note blog. One can’t help but think Clemons may find cause to retract his retraction within a few hours.

Along with the peculiarly opaque “briefed officially” tibit, the Times offers up as a certainty the suggestion that neither Rove nor Libby were sources for the leak to columnist Bob Novak, who first published Plame’s name and occupation: “Among the many unresolved mysteries is whether anyone in addition to Mr. Libby and Mr. Rove might be charged and in particular whether Mr. Fitzgerald would name the source who first provided the identity of a covert C.I.A. officer” to Novak.

Libby has been the focal point of speculation since disgraced Times reporter Judy Miller revealed that Libby had discussed Plame with her on several occasions prior to the publication of Novak’s column. Libby had insisted that he first heard of Plame from other reporters, but on Tuesday the Times reported that notes Libby took at a June 12, 2003, meeting with Cheney indicated that Cheney told him about Plame. Reacting to that report, former UPI intelligence beat writer Richard Sale wrote on his blog that “according to former senior and serving U.S. intelligence officials,” Libby learned about Plame from someone at the state department.

That report in turn feeds into other reports naming former state department officials John Hannah and David Wurmser as possible cooperating witnesses in the investigation. Hannah and Wurmser both worked for UN Ambassador John Bolton in his previous incarnation as the Bad Seed in Colin Powell’s shop, and both served as aides to Cheney. Those reports, and one naming Wurmser as Libby’s source, dovetail nicely with the fact that a classified June, 2003, state department memo identifying Plame was circulated among some administration officials prior to the Novak column.

Wurmser and Hannah have both been nominated as possible sources for Novak’s column as well.

But back to us and the limb we rode in on. It isn’t surprising that most eyes have been on Rove and Libby. Until Time Magazine reporter Matt Cooper agreed to testify to the grand jury about a conversation during which Karl Rove mentioned that Joe Wilson’s wife worked at the CIA, provoking a brief spate of leaks and counter-leaks from Rove’s camp and someone else’s, the investigation had publicly produced nothing but 22 months of silence broken only by the occasional flurry of court filings.

Those court filings, two in particular, are among the things we’re looking at to support the prediction that someone will be indicted under the IIPA. Another is the determined early campaign by White House partisans to mute public and press speculation about the investigation by painting prosecutions under the IIPA as nearly impossible. Throw in what seems to be some informed speculation, and here we are swaying in the treetops.

The court documents include the February 15, 2005, appellate court opinion upholding the trial court’s decision to hold Matt Cooper and Judy Miller in contempt for refusing to honor the subpoenas requiring them to testify before the grand jury. One of the judges on the three-judge panel, David Tatel, filed a lengthy concurring opinion in which he attempted to lay the foundation for a broad reporter’s privilege so that the court’s ruling wouldn’t be taken as settled law regarding the rights of journalists under the First Amendment.

Tatel argued that existing law favors those First Amendment rights — or at least doesn’t deny them altogether — but that in this instance, the suspected crime and the suspected motive outweighed any expectation of privilege the reporters might have, which is to say that the alleged exposure of a covert agent by government officials for the purpose of punishing government critics was so potentially damaging to the national security that reporter’s privilege had to fall before it. He cited a number of court cases and, more significantly, a bunch of classified information provided to the court under seal by Fitzgerald in his brief.

The clear implication of the opinion is that as of February, an appeals court judge who strongly favors a federal shield law for reporters believed that Fitzgerald needed the testimony to pursue his investigation of the leak, not of any ancillary crimes such as perjury or making false statements. More recently, Fitzgerald implied the same in his response to Miller’s request that she be allowed to serve her contempt time at home or at a Club Fed.

From the moment the investigation was announced, partisan lawyers and commentators sought to minimize the possibility that someone in the administration might have violated the IIPA. The gist of the argument was that a successful prosecution under the law was all but impossible because it involved proving that the leaker intended to “impair or impede the foreign intelligence activities of the United States.” The proof of the argument was that no one has been successfully prosecuted for violating the law, at least so far as anyone knows.

Pundits and reporters of all stripes bought into the argument, most recently self-proclaimed liberal Jacob Weisberg, the editor of Slate magazine. But the original argument was based on a deliberate distortion of the law’s language, one that for a variety of reasons ranging from sloppiness to wishful thinking was adopted by nearly everyone. There is in fact a section of the law that applies to people who set out to harm US foreign intelligence activities, but it isn’t the section applicable to administration officials. That section is considerably less restrictive:

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent’s intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.

It isn’t a question of intentionally doing harm, although one would hope senior government officials would recognize that possibility, but simply of knowing the agent’s status and revealing her identity to someone who shouldn’t know it. Former federal prosecutor Elizabeth de la Vega goes into more detail here.

So despite the spectacularly successful effort to remove the IIPA from the realm of speculation during the past two years in favor of focusing on what Senator Kay Hutchinson described as “technical” crimes — minor stuff such as perjury and obstruction of justice, which we all know are just part of everyday political life — it seems more likely that the lack of prosecutions is the product of a lack of government employees finding any reason to out a covert agent.

Adding state department officials Hannah and Wurmser to the mix, with their ready access to state department intelligence products such as the June, 2003, memo identifying Plame, and their close relationships with John “Bad Seed” Bolton and Scooter Libby and the vice president’s office, makes the IIPA seem much more likely than it otherwise might.

And finally, there’s this: no one has offered the slightest substantive hint that Fitzgerald abandoned the original investigation. He’s obviously pursuing other crimes at the moment, but he seems perfectly capable of multi-tasking. And we think that’s just what he’s been doing.

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UPDATE: In a graphic illustration of why counter-intuitive predictions are counter-intuitive, I’ve been proved indisputably wrong about Fitzgerald’s charges today. Although I haven’t abandoned all hope of eventual redemption, I’m having some difficulty translating a remark Fitzgerald made during his press conference: “Very rarely do you bring a charge in a case that’s going to be tried in which you ever end a grand jury investigation.” Is that good news for me or bad news, or indifferent? Interpreters?