Conspiracy

Here's a hypothesis regarding Plamegate that a friend and I have been mulling over for a little over a week:

1. Judy Miller sees Joe Wilson's July 6, 2003 op-ed in the NYT. Because she has a lot of her professional reputation, such as it is, riding on the claim that Iraq's WMD program (including a nuclear program) was alive and well pre-war, Miller sees Wilson's op-ed as very threatening to herself. She clearly has many sources in the intelligence community (the evidently low quality of their "intelligence" aside), and she starts to call around town to find out what gives. Someone tells her that Joe Wilson's wife works for the CIA. That person or someone else whom she later talks to tells her that Mrs. Wilson uses her maiden name for WMD-related work (see below about the relevance of whether Plame's covert status is disclosed at this stage). It's immaterial whether the name "Plame" is used: anyone having minimal information-gathering skills together with the two key pieces of information ([i] that s/he needs to think about Joe Wilson's wife, and [ii] that Wilson's wife uses her maiden name) would surely be able to come up with the name Plame.
2. Knowing from Wilson's op-ed that Dick Cheney's office was involved with Wilson's trip, Miller decides to call Scooter Libby to see what he has to say about the Plame-Wilson connection. Miller tells Libby that "Valerie Plame" is a CIA agent working on WMD issues. (Note: the notion that someone in the media may have provided the information regarding Plame to the WH rather than the other way around has appeared periodically both in the blogosphere and in the MSM -- I didn't think this up. A source of mine in the MSM tells me that reporters share information with government officials all the time, though this particular sharing would be over the usual line.)
3. Libby finds this interesting and tells Miller he'll look into it. He then talks to Karl Rove because the WH fears that if Wilson's story gets legs and people start to question the veracity of Bush's case for war in earnest, the 2004 campaign will get a lot harder. Libby may well not have used the name "Plame" -- no need to say anything more than "Joe Wilson's wife" to get the key information out.
4. Rove tells Libby that they need to get the word out to several reporters to try to cast doubt on Wilson's credibility.
5. Rove and Libby call a number of reporters, including Matt Cooper and the despicable Robert Novak, to tell them the basic story. As I discussed in an earlier post on Tuesday, July 5, this hypothesis is very consistent with Rove's public denial that he ever used or knew Plame's "name" (though it is inconsistent -- as are the facts in the latest Newseek article on the issue -- with WH statements meant to deny Rove's involvement).
6. Novak has lots of sources around town, and he calls around to find out what "Joe Wilson's wife" does at the CIA. Someone he talks to at the CIA or another intelligence unit tells him she works undercover on WMD issues and uses the name "Valerie Plame" for her undercover work. As discussed in my post last week, this combination of events is very consistent with the precise wording of Novak's July 14, 2003, column. Moreover, lest you doubt that Novak's use of the term "operative" in reference to Plame conveys knowledge that Plame was a covert agent, see this TPM posting from October, 2003. So why does Novak publish the name "Plame" when "Joe Wilson's wife" would have done? I don't know. Could be he is just showing off, because he's an arrogant jerk (which is certainly true based on what I've read about him and times I've seen him live). Could also be that someone -- Novak included -- wanted to ruin her career, as Joe Wilson has suggested. Could be some other reason. Not the point, in any case.

So what does all this mean? First of all, Rove may be off the hook regarding the IIPA, which requires knowing that the information you're passing on exposes a "covert agent" (a term that itself is carefully defined in the IIPA, and quite possibly does cover Plame). I say this not because her name matters per se -- I don't think it does, since the information that "Joe Wilson's wife" is a covert agent would be enough to violate the IIPA based on plain language and basic logic. Rather, it's possible that Rove didn't specifically know that Plame/"Joe Wilson's wife" was a covert agent. More importantly, even if he did know this fact, it may be impossible to prove it.

Second, Rove may still be in jeopardy based on the Espionage Act. Mark Kleiman has a very interesting discussion of this possibility in this post from October 2003, and he has discussed the possible application of the Espionage Act (18 U.S.C. 793) to this case multiple times since then. It is worth knowing that, unlike the IIPA, violating the subsection (d) of the Espionage Act does not require a person to know the information is classified -- only that a person has authorized access to

information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States

and that the person transmits that this information someone "not entitled to receive it". This clause would certainly apply to Rove, Libby, and whoever gave Miller the information according to my hypothesis above -- even if true, it would be irrelevant that they didn't know Plame was a covert agent, since they certainly would have "reason to believe" this information should be kept out of the public realm. Moreover, the next clause in the Espionage Act essentially forbids the same actions by anyone not authorized to have information. That language would implicate Miller for her actions as hypothesized above. It would also implicate Novak for publishing the information regarding Plame, though I doubt that the law could be constitutional as applied to Novak's action of publishing his column (other actions he might have taken would not necessarily be protected by the First Amendment). The Espionage Act also has a conspiracy provision:

If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Why do I think this hypothesis makes sense? Well, any correct hypothesis has to explain a number of things:

1. How did Rove and Libby find out that "Joe Wilson's wife" works at the CIA on WMD issues? Plame's employment isn't the sort of thing they'd have a need to know, so just having TS clearance probably wouldn't be enough for them to call over to the CIA and get satisfaction. Moreover, it's hard to believe that they could be stupid enough to call, or to have anyone obviously connected to the WH call, and since clearance or other sources would be required even to find out whose telephone number to use, it seems unlikely that they could farm this task out to someone outside the WH; the risk of having their fingerprints all over it would be too great. Also, why would Rove have waited until July 11 to talk to Matt Cooper and others? Why not do it as soon as they knew the situation, which most likely would have been the day that Wilson's op-ed appeared if they'd called over?
2. How did Novak find out Plame's name?If we assume that Rove isn't lying about this specific detail, then we need another explanation.
3. Why is Judy Miller under so much pressure from the Special Prosecutor given that she didn't even write a story about all this?
4. Why won't Judy Miller talk even with a direct personal waiver? Because if she gets in front of Grand Jury, she will have to invoke her Fifth Amendment right to refuse to incriminate herself, which would fix a bullseye on her. Under this theory, Miller may be conveniently using the "courageous protector of confidentiality" posture to avoid publicly disclosing her part in a criminal conspiracy. If Fitzgerald has reason to believe that Miller is involved in the way I've suggested, then that would perhaps explain the saber-rattling over the possibility that Miller will be held in criminal, rather than civil, contempt: it's not illegal to refuse to testify to a Grand Jury, but I assume it is illegal to refuse to show up and take the Fifth.
5. Why would Fitzgerald continue to be so insistent on getting testimony from Cooper once he had Cooper's notes? Most likely because (i) knowing the circumstances and extent of WH staff's discussions with Cooper would be helpful in establishing the existence of a conspiracy as defined by the Espionage Act and (ii) in a trial, defendants have the right to cross-examine witnesses -- you can't just use Cooper's notes unimpeached; better to establish that Cooper will testify now.
6. Why would Karl Rove's attorney, Robert Luskin, allow Cooper to testify if Rove is a subject (as distinct from being a target) of Fitzgerald's investigation, especially given that I've argued that Fitzgerald believes his case against Rove and Co. will be stronger with Cooper's personal testimony? In my view, this question was the biggest obstacle to my hypothesis: you don't want to hang a hypothesis like this on the assumption that two sides of zero-sum game both believe the same action helps them, at least not unless you have a good reason to think so. Today's NYT provides a strong reason to believe that Rove and Luskin never intended to let Cooper off the hook:

   Around 7:30 on Wednesday morning, Mr. Cooper had said goodbye to his son, resigned to his fate. His lawyer, Mr. Sauber, called to alert him to a statement from Mr. Luskin in The Wall Street Journal.
   
   "If Matt Cooper is going to jail to protect a source," Mr. Luskin told The Journal, "it's not Karl he's protecting."
   
   That provided an opening, Mr. Cooper said. "I was not looking for a waiver," he said, "but on Wednesday morning my lawyer called and said, 'Look at The Wall Street Journal. I think we should take a shot.' And I said, 'Yes, it's an invitation.'"
   
   In court shortly after 2, he told Judge Thomas F. Hogan of the Federal District Court in Washington that he had received "an express personal release from my source."
   
   That statement surprised Mr. Luskin, Mr. Rove's lawyer. Mr. Luskin said he had only reaffirmed the blanket waiver, in response to a request from Mr. Fitzgerald.

7. Why is Fitzgerald pressing the press so hard? DOJ regulations supposedly require prosecutors to exhaust all possible avenues before compelling reporters' testimony. Some have also suggested that the crime involved has to be serious (and then suggested that Fitzgerald is pursuing "only" perjury or obstruction charges; this post from Mark Kleiman undermines that argument). The arguments above would help to explain why Fitzgerald is pushing the media so hard

A couple other comments.

First, a key open question for my hypothesis is who told Miller about Plame. A friend has suggested that perhaps the information came out from a briefing of House or Senate Intelligence Committee members. It would certainly have made sense for the ICs or their leaders to want to know what was going on once Wilson's op-ed hit the streets. And a perfectly reasonable question at such a briefing would have been, "How did it transpire that Joe Wilson was sent on this mission?" We know from the Senate report on pre-war intelligence failures (I think that was the source) that Valerie Plame/Wilson was asked to write a backgrounder on Joe Wilson when the possibility of sending him to Niger was under discussion. If she was referred to as "Valerie Wilson" in my hypothesized briefing, it would be natural for someone to ask if she was related to Joe Wilson, and off we go (the name "Plame" could have come up if someone at the briefing called Miller, and Miller then asked what exactly Valerie Wilson does for the CIA, and in what capacity). The biggest problem for this theory is that Fitzgerald's court filings have stated that he knows the identity of Miller's source, who is referred to as an "Executive branch" official. It's still possible that someone present at a briefing of IC members called an executive branch member with the information. Libby would be a possibility. Another would be Doug Feith, who headed the Pentagon's shadowy intelligence group whose job has been described as "re-interpreting" intel from other agencies that failed to find all those obvious signs of a full-tilt WMD program in Iraq. And then there's the long-shot: John Bolton (remember those intercepts? Nah, too serendipitous...even for these people).

Second, let me say that I've seen some (maybe even all) parts of the hypothesis above in various places around the net and in the MSM. But I haven't seen anyone put all this together as above.