Questions about senior aide Karl Rove's role in unmasking a covert CIA agent have created a political headache for the White House, but legal analysts said yesterday that the disclosures of his actions to date are unlikely to produce a criminal indictment under a little-known, little-used federal law intended to protect the identities of spies.
That does not mean that Rove, the president's most prominent and skillful political adviser, is in the clear. Federal prosecutors could pursue far more common charges, such as obstruction of justice or perjury, attorneys who have closely followed the grand jury probe said yesterday.
For Rove and the White House, there also is a more immediate credibility crisis.
The White House has offered repeated public assurances that any administration official found to have disclosed the identity of CIA officer Valerie Plame would be fired and that Rove was not connected to the leak. But for a second day yesterday, officials refused to respond to news accounts showing that Rove discussed Plame's job with a Time magazine reporter, although without using her name.
President Bush ignored a reporter's questions yesterday about whether he would fire Rove. White House spokesman Scott McClellan fended off a bruising round of questions at his daily briefing by saying repeatedly that he would not discuss any details of the continuing criminal investigation.
Pressed on whether Bush still has confidence in Rove, his longtime adviser who has been jokingly described as "Bush's brain," McClellan answered: "Any individual who works here at the White House has the confidence of the president. They wouldn't be working here at the White house if they didn't have the president's confidence."
That confidence could be tested in the coming days and weeks.
At issue is whether Rove violated a 1982 law known as the Intelligence Identities Protection Act when he spoke to Time reporter Matthew Cooper about Plame. That conversation took place five days after publication of a New York Times op-ed article by Plame's husband, former Ambassador Joseph C. Wilson IV, who raised questions about the administration's case for going to war in Iraq.
Newsweek magazine obtained this week a copy of an e-mail Cooper sent his bosses describing his "double super secret background" conversation with Rove on July 11, 2003. In the e-mail, Cooper said that Rove told him Wilson's wife "apparently works" for the CIA in cautioning the reporter to be skeptical of some of Wilson's claims.
Attorneys familiar with the 1982 spy protection law say it is a difficult one to break.
The tightly written statute was intended to end the tell-all revelations of former CIA officer Philip Agee in the early 1980s. It has been used only once - in 1985, to prosecute former CIA clerk Sharon Scranage, who admitted disclosing the names of U.S. agents to a boyfriend while she was based in Ghana.
Bruce W. Sanford, a First Amendment attorney in Washington who helped draft the law, said it is difficult to bring criminal charges under it because the government must show that whoever leaked information about an undercover agent's identity did so intentionally and knowingly.
The law also requires that the government must be taking "affirmative measures" to protect the individual's identity when it is disclosed and that the covert agent must have been stationed outside the United States for the previous five years.
Plame was working at CIA headquarters when her identity was revealed.
"All somebody in the White House has to say is, 'Oops, I'm sorry. ... I didn't know she was covert.'" Sanford said. "All they have to do, basically, is say that, and it's a defense."
Sanford and Mark S. Zaid, a Washington attorney who specializes in civil lawsuits involving CIA workers, said prosecutors could instead pursue a charge of obstruction of justice or perjury. Sanford noted that nothing is known about eight blank pages - presumably detailing the government's evidence - that were included in a judge's ruling this year on the issue of whether reporters would have to testify in the probe and reveal confidential sources.
One reporter, Judith Miller, was jailed last week after the prosecutor insisted her testimony was relevant and necessary. Cooper, who also faced jail, agreed to testify after saying he had been released from a confidentiality agreement with his source - acknowledged by Rove's attorney to be Rove.
"We don't know what [independent prosecutor Patrick ] Fitzgerald knows," Zaid said. "But one thing that really sets any governmental agency on the warpath is if they think they got lied to."
Michael Greenberger, a Justice Department official under the Clinton administration who now teaches law at the University of Maryland, said yesterday that the public clues from the grand jury suggest that Fitzgerald is no longer focused on bringing charges under the 1982 law.
"My sense is that the real crux is not whether he leaked this information in violation of that statute, but whether he was fully forthcoming with the grand jury," Greenberger said. One question under that line of inquiry is whether Rove told the grand jury that he spoke with Cooper before or after a column by Robert Novak first outed Plame in the Chicago Sun-Times.
That column appeared on July 14, 2003, three days after Cooper's e-mail indicates he spoke with Rove.
Rove's attorney, Robert Luskin, has said that Rove did not knowingly leak any classified information and has cooperated fully with the investigation. Newsweek quoted an unidentified source close to Rove as saying there was "absolutely no inconsistency" between the e-mail and Rove's testimony in three appearances before the grand jury.
Going on a more public offensive, leading Republicans dismissed the focus on Rove yesterday as political haymaking. Republican National Committee Chairman Ken Mehlman issued a three-page defense of Rove, which noted, among other things, that Wilson had backed Democrat John Kerry for president last year.
"The bottom line is Karl Rove was discouraging a reporter from writing a false story based on a false premise, and the Democrats are engaging in blatant partisan attacks," Mehlman said.
Sen. Orrin G. Hatch, a Utah Republican who serves on the Senate Intelligence Committee, also defended Rove in an interview with Don Imus on MSNBC. "Karl is a great guy," Hatch said. "And, frankly, if you look at what he said, he didn't break any rules."
Kerry led the Democratic attacks yesterday in Washington. At a Senate news conference, the Massachusetts Democrat accused the White House of putting politics ahead of national security.
"The White House's credibility is at issue here, and I believe very firmly that Karl Rove should be fired," Kerry said.
If nothing else, the fury surrounding Rove could prove an embarrassment for the tightly controlled Bush White House, which has repeatedly and publicly defended one of its chief architects. In September and October of 2003, spokesman McClellan said that he had spoken directly to Rove and said emphatically that Rove "was not involved" in disclosing Plame's identity.
"The president knows that Karl Rove wasn't involved," McClellan said at the time. He called the allegation then a "ridiculous suggestion" and "not true."
Rove's public denials have been more careful. He said last year: "I didn't know her name and didn't leak her name."
At the White House yesterday, McClellan was not anxious to revisit past denials.
"You do point out some statements that were made. I remember well the comments that were made," he said, in response to sharp questioning from reporters. "After that point, I also remember going and testifying in this investigation, and I remember well individuals who were involved in overseeing this investigation expressing their preference personally to me that we not get into discussing what is an ongoing investigation. I think that's the way to be most helpful as they move forward."