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July 22, 2004

Prosecutorial Discretion: Valerie Plame and Sandy Burglar

Juan non-Volokh at the Volokh conspiracy has a post on the question of whether the leaker of Valerie Plame's employment at the CIA should be prosecuted. I had a thought on this and the Sandy Burglar case.

What cases should a prosecutor choose to prosecute? Two prime considerations are "1. Should the person whom I think did X really be punished, or is their conduct excusable, even if illegal?" and "2. Even if I think the person did X and should be punished, do I have enough evidence that I have a good chance of convincing a jury?"

Juan non-Volokh at the Volokh conspiracy has a post on the question of whether the leaker of Valerie Plame's employment at the CIA should be prosecuted. I had a thought on this and the Sandy Burglar case.

What cases should a prosecutor choose to prosecute? Two prime considerations are "1. Should the person whom I think did X really be punished, or is their conduct excusable, even if illegal?" and "2. Even if I think the person did X and should be punished, do I have enough evidence that I have a good chance of convincing a jury?"

I won't discuss (1) here, as applied to either the Plame case or the Berger case, despite its importance. What about (2)? Here, I think the Plame case should clearly be abandoned by the prosecutor. It is crazy that he has not dropped it already. Suppose he thinks he can find out who leaked the information. He still has to convince all 12 members of a jury that all of the following things are true beyond a reasonable doubt:

1. The defendant really is the leaker. Whoever the defendant is, his lawyer will argue that the prosecutor was under pressure to find a culprit and that there are political considerations. It will probably be the defendant's word against one or two witnesses who are heavily political people and who have strong motives for shifting blame from one person to another. Reasonable doubt will be hard to overcome.

2. The defendant knew that Plame not only worked for the CIA but was a covert agent within the past five years (if I remember the statute correctly). Note that Novak did not claim she was a covert agent-- that was leaked later by someone else (was it by someone at the CIA itself-- I forget). Note, too, that she is the mother of twins, has been living in America for some time, and was involved enough in CIA administrative affairs to be writing a memo suggesting her husband for the Niger mission. Proving beyond a reasonable doubt that the leaker knew she was a covert operative would be close to impossible.

3. The defendant intended to make the information public. I'm guilty here of not bothering to look at the statute, but would someone be guilty if they told Novak Plame was a CIA agent intending for that to just be background information, not to be published? The defense lawyer could argue that the leaker had not told the world that Plame worked for the CIA, just Novak, and suggest that maybe Novak was the one to blame for actual publication.

Moreover, there is another hurdle: jury nullification. Suppose the judge says that it would be a serious felony for a government employee to reveal Plame's name to Novak even if no harm was done because it was common knowledge in Washington anyway, she hadn't worked covertly for some years, the disclosure was motivated by her misbehavior in pushing her husband for a mission, and the leaker had not intended for the information to be published. Would the jury really vote unanimously to send the leaker to jail? I doubt it.

Thus, I see very little chance that the government could get a conviction. And if I am right, a good prosecutor would say, even before learning the identity of the leaker: prosecuting this case would be a waste of government resources, because we'd lose.

Now switch to Sandy Berger's theft of secret government documents. Again, forget item (1), the item of justice. Could a prosecutor get a conviction? Easily. I'm not sure of the elements of the crime, but at most I expect there are just two (a) Did Berger intentionally take notes and/or take the documents themselves, rather than accidentally dropping certain select documents in his pants on several visits?, and (b) Did Berger know he wasn't supposed to do those things? Both of those seem pretty easy, when we're dealing with a former National Security Advisor. (Probably item (b) is not even a necessary element. You don't have to know that burglary is a crime to be guilty of burglary. But the jury might balk at convicting, say, an ordinary citizen who had never been told that he was viewing secret documents and they weren't free samples he could take home with him.)

The Berger case seems to be a slam-dunk. It might be prudent to appoint a special prosecutor, since the Democrats will scream that the prosecution is politically motivated. But it is actually disgraceful that Berger has not already been indicted, tried, and convicted, since the crime seems to have occurred in the fall of 2003 and it is such a simple case. No wonder people like Berger think they are above the law-- it seems they really are, even when Republicans control the Justice Department!

Posted by erasmuse at July 22, 2004 10:29 PM

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