Home > Conspiracy Charges in the Plame Case?
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Posted by Mark Kleiman on October 04, 2005 05:43 PM
Jim VandeHei and Walter Pincus report that lawyers close to the Valerie Plame investigation (identified as lawyers for witnesses, but presumably those would be potential defendants) say that Patrick Fitzgerald is pointing toward conspiracy charges.
"Many lawyers in the case have been skeptical that Fitzgerald has the evidence to prove a violation of the Intelligence Identities Protection Act, which is the complicated crime he first set out to investigate, and which requires showing that government officials knew an operative had covert status and intentionally leaked the operative’s identity.
But a new theory about Fitzgerald’s aim has emerged in recent weeks from two lawyers who have had extensive conversations with the prosecutor while representing witnesses in the case. They surmise that Fitzgerald is considering whether he can bring charges of a criminal conspiracy perpetrated by a group of senior Bush administration officials. Under this legal tactic, Fitzgerald would attempt to establish that at least two or more officials agreed to take affirmative steps to discredit and retaliate against Wilson and leak sensitive government information about his wife. To prove a criminal conspiracy, the actions need not have been criminal, but conspirators must have had a criminal purpose."
Note first that everything VandeHei and Pincus report about conspiracy is from defense lawyers. They may be spinning, and Fitzgerald may not be showing all his cards. I’m not sure where VandeHei and Pincus get the idea that the Intelligence Identities Protection Act is the crime Fitzgerald "set out to investigate." He set out, as I recall, to investigate what crimes might have been committed in the course of unmasking Valerie Plame Wilson’s identity as a CIA operative who once worked under Non-Official Cover. The potential defendants and their friends in the White House and the conservative media have been working hard to keep everyone focused on the hard-to-violate IIPA rather than the easier-to-violate Espionage Act.
The second paragraph quoted above seems to me somewhat confusing about the meaning of "conspiracy" as a criminal charge. A "criminal purpose" means either the purpose to do something forbidden by some substantive criminal law or an "attempt to defraud the United States."
Here’s the full text of the relevant statute, 18 U.S.C. 371
Section 371. Conspiracy to commit offense or to defraud United States
"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."
Forum posts
7 October 2005, 06:43
It would appear that 18 USC 794 is more appropriate. Note also it is a capital crime.
STATUTE
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.
(c) If two or more persons conspire to violate 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.
(d)(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law -
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation, and
(B) any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
For the purposes of this subsection, the term ’’State’’ includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(d)(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.
(d)(3) The provisions of subsections (b), (c) and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)-(p)) shall apply to -
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property, if not inconsistent with this subsection.
(d)(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law