Posted by Randy Gainer

The special prosecutor Patrick Fitzgerald is reportedly considering asking the grand jury in the Plame leak case to indict Karl Rove and Lewis “Scooter” Libby on espionage charges, according to “lawyers involved in the case” who spoke to The Washington Post. A “lawyer in the case” told the same thing to The New York Times. Other media, including PBS, have speculated that Fitzgerald may be considering a conspiracy charge against Rove, Libby, and possibly others “not to out a CIA agent knowingly, which is a hard case to prove, but a conspiracy rather using classified information in violation of laws protecting classified secrets.”

Some commentators, such as blogger Mark Kleiman, advocated months ago that whoever leaked Plame’s CIA role should be charged with violating the Espionage Act. The Times points out that Lawrence Franklin recently pleaded guilty to Espionage Act charges related to his disclosure of classified information to the American-Israel Public Affairs Committee and that two former employees of AIPAC face Espionage Act charges for relaying information from Franklin to the Israeli government. Disclosure of Ms. Plame’s classified status could well fall within the prohibitions of the Espionage Act, specifically those in 18 U.S.C. section 793(e), which prohibit disclosure of information relating to the national defense by persons who have such information without authorization. Finally, there is precedent for prosecuting disclosure of classified information to the press under the Espionage Act. For example, in United States v. Morison, 844 F. 2d 1057 (4th Cir. 1988), the Court upheld the conviction of an intelligence worker who sent secret Navy satellite photos to Jane’s Defence Weekly.

But would resort to the Espionage Act be a wise use of prosecutorial discretion by Mr. Fitzgerald? In a case that is based on disclosing information to the press and that has seen one reporter jailed for refusing to testify about conversations with confidential sources, do we want to assure prosecution of the vengeful leakers of Ms. Plame’s CIA cover so much that we also want to encourage use of the broad terms of the Espionage Act? Recall that Daniel Ellsberg, considered a hero by many for providing copies of “secret” and “top secret” documents that detailed the history of the Vietnam War, “the Pentagon Papers,” to The New York Times and The Washington Post, was prosecuted for allegedly violating 18 U.S.C. ㋔ 793. See Reporters’ Committee for Freedom of the Press v. American Telephone & Telegraph Co., 593 F.2d 1030, 1040 n.18 (D.C. Cir. 1978), cert. denied, 446 U.S. 949 (1979). The charges in that case were dismissed during trial for prosecutorial misconduct. See United States v. Morison, 844 F.2d at 1066 n.16.

The same section of the Espionage Act, 18 U.S.C. ㋔ 793(e), was invoked in the Pentagon Papers case against The New York Times itself. In that case, the district court issued a temporary restraining order prohibiting further publication of the Pentagon Papers for several days, then refused to issue the preliminary injunction that the government sought. New York Times Co. v. United States, 328 F. Supp. 324 (S.D.N.Y 1971), affirmed, 403 U.S. 713 (1971). In refusing to issue the injunction sought by the government, the district court noted that section 793(e) does not address publication while other sections of the Espionage Act do. The district court also held that the information that the Pentagon Papers contained historic information rather than information that was vital to current national security. 328 F. Supp. at 328. The Supreme Court, in a per curiam opinion, affirmed the district court’s decision that The Times should not be enjoined from publishing the Pentagon Papers, though the Justices who supported the decision cited varying reasons for concurring in the result. 403 U.S. 713, 718 (Black, J. concurring); 403 U.S. 720, 720-24 (Douglas, J., concurring); 403 U.S. at 724, 724-27 (Brennan, J. concurring); 403 U.S. at 727, 730 (Stewart, J., concurring); 403 U.S. at 730, 730-31, 740 (White, J., concurring).

It will serve justice if Mr. Fitzgerald can make his case against whoever blew Valerie Plame’s cover. It will be better if he can do it without setting a precedent that will encourage prosecutors in cases where freedom of the press, rather than retaliation is at issue, to seek indictments under the Espionage Act.