Josh Marshall posted here, pointing to this old Washington Post story, which pretty much kills the "it's not clear she was covert" defense:
The leak of a CIA operative's name has also exposed the identity of a CIA front company, potentially expanding the damage caused by the original disclosure, Bush administration officials said yesterday.
The company's identity, Brewster-Jennings & Associates, became public because it appeared in Federal Election Commission records on a form filled out in 1999 by Valerie Plame, the case officer at the center of the controversy, when she contributed $1,000 to Al Gore's presidential primary campaign.
After the name of the company was broadcast yesterday, administration officials confirmed that it was a CIA front. They said the obscure and possibly defunct firm was listed as Plame's employer on her W-2 tax forms in 1999 when she was working undercover for the CIA. Plame's name was first published July 14 in a newspaper column by Robert D. Novak that quoted two senior administration officials. They were critical of her husband, former ambassador Joseph C. Wilson IV, for his handling of a CIA mission that undercut President Bush's claim that Iraq had sought uranium from the African nation of Niger for possible use in developing nuclear weapons.
The Justice Department began a formal criminal investigation of the leak Sept. 26.
The inadvertent disclosure of the name of a business affiliated with the CIA underscores the potential damage to the agency and its operatives caused by the leak of Plame's identity. Intelligence officials have said that once Plame's job as an undercover operative was revealed, other agency secrets could be unraveled and her sources might be compromised or endangered.
A former diplomat who spoke on condition of anonymity said yesterday that every foreign intelligence service would run Plame's name through its databases within hours of its publication to determine if she had visited their country and to reconstruct her activities.
"That's why the agency is so sensitive about just publishing her name," the former diplomat said.
Next up: the Repub party tries vainly to smear people who want Rove to face justice for his actions, but the folks at TPM Cafe smack Mehlman down:
I don't want to be the first one to NOT follow directions, but let me point out one GIGANTIC problem with that press release. Its all about Joe Wilson. The crime, if one is determined to have taken place, is the exposure of Valerie Plame as a covert operative. What on earth does that have to do with her politics, his politics, or what happened before, during or after the trip to Niger. All that is provides is the reasoning for Karl Rove to have done what he allegedly did.
The question remains, did Karl Rove use his position to expose a covert CIA operative? You might add 'in efforts to discredit Joe Wilson', but honestly, is it relavent? Is it relavent why he would have done what he did? Maybe to Republicans, but not to the law.
It shouldn't matter if Joe Wilson wrote an op-ed calling Bush an alien from Mars. Its not a crime to lie (excepting perjury), if you believe that Joe Wilson was lying, how is it still NOT a crime to expose his wife?
By talking Mehlman's bait, the discussion turns to the merits of Wilson's case and not to the crime itself.
And increasingly, a crime is what it appears to be, and a serious one at that.
If this is the best "defense" the Repubs can make (read the whole TPM Cafe thread for the lie-by-lie of Mehlman's piece), then Rove really will be frog-marched, and pronto.
Update This from NRO (!) is pretty damning all by its lonesome:
Luskin also addressed the question of whether Rove is a "subject" of the investigation. Luskin says Fitzgerald has told Rove he is not a "target" of the investigation, but, according to Luskin, Fitzgerald has also made it clear that virtually anyone whose conduct falls within the scope of the investigation, including Rove, is considered a "subject" of the probe. "'Target' is something we all understand, a very alarming term," Luskin says. On the other hand, Fitzgerald "has indicated to us that he takes a very broad view of what a subject is."
Finally, Luskin conceded that Rove is legally free to publicly discuss his actions, including his grand-jury testimony. Rove has not spoken publicly, Luskin says, because Fitzgerald specifically asked him not to.
I don't know about the last sentence (yeah,right, Rove's being real kind to Fitzgerald 'cause deep down he's just a puddy-tat), but it's pretty clear that "subject" might just mean "target" here.
Further Update:
For those who just can't accept the above information, and why the prosecutor, Fitzgerald is so interested in Rove, Transparent Grid explains it all for you:
Section 421, like many crimes, is all about definitions. Who is a “covert
agent” and what is a knowing disclosure? Freepers have been calling into liberal
talk radio today rasing the canard that Valerie Wilson/Plame was really not
covert. They glom on to Fox News propogranda that “everyone” in Washington knew
Plame was C.I.A. Well, apparently her longtime neighbors didn’t even know. The
Tillotsons thought she was a soccer mom according to the New
York Times. But who cares what the freepers believe, it is the law that
counts and the definition of “covert agent” in § 426(4) is straightforward - it
is an employee of an intelligence agency “whose identity as such an officer,
employee, or member is classified information” and has served outside the U.S.
in the last five years. Hence, whether or not people in the know in D.C. knew
but kept their mouth shut is of no moment, what matters is if the C.I.A.
considered her covert...
The gravaman of the legal analysis comes down to whether Karl made a
knowing disclosure. The disclosure element is defined in §426(3), “The term
‘disclose’ means to communicate, provide, impart, transmit, transfer, convey,
publish, or otherwise make available.”
...The question is whether Rove knew that Plame was a “covert agent.” Here
is where one can conclude that Rove is in trouble. One with general common
knowledge would assume that Plame was an employee of Brewster, Jennings. It is
only by virtue of either someone having disclosed the classified details that
she was an agency employee to Rove or by Rove’s own access to the classified
information that he would have been in a position to know what her true role
was.
Knowledge, like any required mental state in criminal law, can be proven
by circumstantial evidence. The U.S. Supreme Court has specifically ruled that
“knowledge” can be proven by establishing a “high probability” that the
defendant knew the true circumstances of the fact...
Rove was in a unique position to know Plame’s true role as a CIA employee.
First off, keep the chronology in mind. Wilson’s New York Times column, “What I Didn’t Find in
Africa,” was a bombshell, because he was the first insider to directly
challenge a major premise of the justification for war. The publication date was
July 6, 2003. The Robert Novak column which outed Valerie Plame as an operative
was published on July 14th. It was on July 11th, though, that Cooper sent the
e-mail detailing his talk with Rove. This would mean that a decision was made to
use the Plame information as a tool to discredit Wilson at some point between
the 6th and the 11th. We also know that not only Rove disclosed such
information, but so did Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby.
(See The
Plame Game at the Village Voice.)
Now this is why Rove had access to
such sensitive information. As Pacific Views has pointed out, Libby and Rove were part of the 8 person White House Iraq
Group which also included Karen Hughes, Mary Matalin, Stephen Hadley and
Condoleeza Rice. As you can note, these are not military strategists. Their role
was to create the environment that made war inevitable. The Iraq Group spun the
propoganda that created the climate of fear which led to war. The Pacific Views
piece cites the study by retired Air Force Colonel Sam Gardiner who traces the orgins of the Iraq Group and how it manufactured the Iraq
crisis. These were the individuals who were the most invested in the WMD fiction
and would have wanted to respond aggressively to Joe Wilson’s efforts to expose
at least part of the fraud which had appeared in Bush’s January State of the
Union speech.
Where this leads us is where this piece began. The focus of
most reporting has been on whether the language in Cooper’s e-mail is sufficient
to charge Rove with violating §421. That question hardly matters. What counts is
what Rove actually said to Cooper. When Cooper writes that Wilson’s wife
“apparently” works for the agency. Was “apparently” his characterization or
Rove’s? What I sense is that Cooper wasn’t laying out every detail in his
e-mail, which is common. More importantly, the focus on the content of the
e-mail misses the point of where I believe the nature of the crime actually
lies....
What I think we have here is a conspiracy to disclose Plame’s covert role
to burn Wilson. If that is the case, it may not matter if Rove didn’t say all
the magic words to meet every requirement of §421. Title 18, Section 371 defines
and provides punishment for conspiracy to commit any offense against the United
States where “one or more persons do any act to effect the object of the
conspiracy.” If found guilty, punishment is for up to five years in prison. A
conspiracy does not have to completed. The law requires that two or more people
agree to commit the offensive act and that at least one of those people commits
an act to move the conspiracy along. So, for example, in a narco case, three
guys may agree to ship a kilo of cocaine into Arizona. As soon as one of them
rents the plane, the conspiracy charge can be brought against all three. Merely
talking about it is not enough.
Here we have both Libby and Rove disclosing
most of what Novak published. We don’t know how Novak got her name, but radio
host Randi Rhodes said today that Plame’s name was in Wilson bio on the Internet
at the time of his July 6th op-ed piece. So it could be that Libby, Rove or
someone else told Novak or he figured it out on his own. That detail may not
matter if members in the Iraq Group had already set out to burn Wilson. Once one
of the men or women who agreed to out Plame picked up the phone the conspiracy
was ripe.
What is increasingly evident is that a) this is worse than Watergate, and b) it's like Watergate and the Pentagon Papers rolled into one.
Because what it shows is the reason for going into war was so bogus that they had to basically compromise the security of the United States of America, and possibly jeopardize the lives of operatives to get their glorious little war.
Frogmarching Rove? It is my opinion that that would not be a sufficient deterrent.
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