Actually, there have been a few interesting developments since Friday.
The Washington Post (which, by the way, seems to be the only paper interested in covering this scandal in any real detail) got the ball rolling — again — with an item from Mike Allen questioning whether the leaking of an undercover CIA agent’s identity is a literal crime.
“The Justice Department investigation into the leak…could conclude that administration officials disclosed the woman’s name and occupation to the media but still committed no crime because they did not know she was an undercover operative, legal experts said this week,” the Post reported. Allen quoted GOP lawyer Victoria Toensing as saying, “It could be embarrassing but not illegal.”
I like Mike Allen, but his story suffered from a few flaws. First, it overemphasizes the near-impossibility that the leakers didn’t know that Plame was an undercover operative. Second, it presents a defense — “I didn’t know she was undercover when I leaked her name” — as an exonerating explanation. If the leakers want to use that argument after they’ve been charged with illegally leaking Plame’s name, that’s fine, but it’s certainly not a reason to avoid charges in the first place.
And lastly, as Josh Marshall noted, Toensing is quoted as an objective legal expert. She’s not — Toensing has is a partisan activist whose opinion hardly reflects the perspective of a dispassionate legal observer.
“Toensing, of course, is not only a pricey DC defense lawyer,” Marshall said. “She’s also a professional Republican, one tightly connected to the DC GOP power structure, and someone you could find at pretty much any point in the late nineties as an anti-Clinton ‘legal expert’ on every chat show under the sun. Using Toensing as the legal expert on this question is like bringing Bruce Lindsey in as your commentator to discuss Lewinsky.”
Better yet, Marshall dug up an old essay Toensing wrote in 2001 in which she vehemently argues the importance of fully investigating these kinds of leaks, which she calls “criminal.” Funny how people change when it happens to one of their guys.
Next up was another Mike Allen story in the Post on Saturday, reporting that journalists’ White House sources may be asked to free reporters of pre-arranged agreements. (Time magazine, by the way, is reporting the same thing.)
“Federal investigators plan to ask White House officials to release journalists from any pledge of confidentiality given during discussions about CIA operative Valerie Plame, a senior administration official said Friday,” the Post article explained. “The official said that several aides to President Bush whose names have come up in interviews with FBI agents will be asked to sign a one-page form giving permission for journalists to describe any such conversations to investigators, even if the journalists promised not to reveal the source.”
I don’t see this having much of an effect; I think it’s more of a tactic to see who argues against the approach the strongest. If you’re one of the leakers, the theory goes, you’ll likely fight tooth-and-nail to prevent those reporters from speaking freely about what you told them. That said, Time reports that administration officials are voluntarily signing these “permission slips.”
It may not matter either way. Journalists, even the ones with first-hand knowledge of the leakers, will probably keep quiet about their sources. As professionals, they take confidentiality very seriously and won’t divulge sources just because their contact gave them “permission” under duress from the FBI. Just as importantly, they’ll likely want to go out of their way to avoid becoming part of the story.
Nevertheless, I agree with Mark Kleiman’s analysis here. The fact that federal investigators are approaching White House officials in this manner suggests that the inquiry is proceeding the right way — they’re focusing on who leaked Plame’s name to the media, not whether the leakers knew she was undercover.
And lastly, Bush was asked last week about his thoughts on the slow pace of the investigation. He said, “I’m not involved with the investigation in any way, shape or form.”
While in one sense that’s true — there’s no indication that the investigation is focusing on Bush in any way — in another sense, it’s part of my ongoing frustration with his approach to the scandal. Bush says he’s not “involved with the investigation,” but I believe he should be. At least two of his aides illegally leaked the name of an undercover CIA agent. Bush has made passive remarks about his desire to know who was responsible for this, but he continues to show no interest in doing anything about it.