Friday, July 15, 2005

Tag Teaming With the Monk to Provide Cutting-Edge Legal Analysis

The Warrior Monk provides a look at the statute that Karl Rove is alleged to have violated, in the horribly mistitled "It Depends On What the Meaning of 'Any' Is." Go read it. Now.

I'll wait....

[LearnedFoot hums "The Flight of Icarus" softly to himself.]

You're back. Great! Let's continue.

I say that Monk's otherwise solid post is mistitled because the outcome of this whole Rove mess will not turn on what the meaning of "any" is. Everybody knows what any means. It means "any".

[The gathered masses gasp in admiration; some exclaim "You truly are the Learned Foot!"]

And, to put to rest a growing trope from the right, the outcome will not turn on the meaning of "covert agent," since that term is defined so broadly in 50 USC 426 that the scope of its definition could include anyone in the CIA from Jack Ryan on down to the guy who changes the batteries in all those cool spy gizmos.

No, the Rove / Wilson / Plame ordeal will depend on a different word: "scienter".

The Monk mentions this, but gives it pretty short shrift. The scienter element of section 421 provides:

...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...

So in order hang Rove, achieving the left's equivalent of a wet dream, the prosecutor has to prove inter alia:

1) Rove was actually giving a reporter information for the purpose of allowing that reporter to identify Plame (that is: Rove's disclosure was calculated to bring about the result of Plame being outed) Remember: there's no evidence that Rove even knew Plame's name (more on that below); AND

2) Rove was aware that the government was trying to keep Plame's identity a secret.

And here are the facts that we've got so far:

Rove told the grand jury that by the time Novak had called him, he believes he had similar information about Wilson's wife from another member of the news media but he could not recall which reporter had told him about it first, the person said.

When Novak inquired about Wilson's wife working for the CIA, Rove indicated he had heard something like that, according to the source's recounting of the grand jury testimony.

Rove told the grand jury that three days later, he had a phone conversation with Time magazine reporter Matt Cooper and - in an effort to discredit some of Wilson's allegations - informally told Cooper that he believed Wilson's wife worked for the CIA, though he never used her name, the source said.

An e-mail Cooper recently provided the grand jury shows Cooper reported to his magazine bosses that Rove had described Wilson's wife in a confidential conversation as someone who "apparently works" at the CIA.

"he believes he had similar information about Wilson's wife"

"informally told Cooper that he believed Wilson's wife worked for the CIA, though he never used her name"

"Rove had described Wilson's wife in a confidential conversation as someone who "apparently works" at the CIA"

Granted, this is Rove's own testimony. But if the investigation cannot turn up any evidence that Rove had anything other than a vague notion that "Wilson has a wife in the Agency," then neither of the above elements of the statute's scienter requirement can be satisfied. This statute does not provide a strict liability or even negligence standard. An accident does not count.

And no, lefty bloggers and moonbat trolls, I'm not saying that such evidence doesn't exist. I'm merely saying that all these "facts" y'all keep throwing around do not bear on the criminality, or even the wrongfulness for that matter (in my opinion), of Rove's actions.

Therefore I suggest that all you hysterical lefties out there breathe into a paper bag and shut the hell up until you actually have some, er what's it called, oh yeah: MATERIAL evidence.

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