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Mark Kleiman complains that the WSJ editorial page is “full of Bush lit” for suggesting that the Joseph Wilson controversy might have a legal bearing on whether the leaker of Valerie Plame’s identity can be prosecuted. As evidence, he cites a news story in yesterdays WSJ which reports:

Whether or not it damages [Wilson] or not, the report, in strictly legal terms, should not have any effect on Special Prosecutor Patrick Fitzgerald’s investigation into whether the White House violated a law that makes it a crime to disclose the name of a clandestine intelligence officer.

So the WSJ editorial page flubbed the story, right? Not necessarily. Just One Minute notes that the very news story Kleiman cites provides support for the editorial page’s claim.

Prosecutors are still trying to determine who leaked Ms. Plame’s identity and why. The question, says a law-enforcement official, is whether the individual had a security clearance that gave him or her access to Ms. Plame’s identity — and also leaked her name to damage national security. “We still have to prove that, and it’s not easy to do,” the official says. “That’s why nothing ever happens with these cases.”

[Substantial excerpts of the story are available here.]

I don’t know enough about the relevant statute to know whether intent might matter. But given the story in question, Kleiman has not substantiated his charge.

Update: Kleiman has now updated his post, citing the relevant statute. It suggests that any prosecution of the Plame leaker would have many hurdles, including knowledge that Plame was a “covert agent” and that the government was actively seeking to conceal her identity (a point Novak’s account undermines), but that intent to damage national security would not be necessary to prosecute the leaker under subsections (a) and (b) of the statute. Fair enough. But Kleiman’s original post excorciated the WSJ editorial board for misrepresenting the statute without acknowledging that the article upon which he relied makes the very same mistake by relying upon an expert source who claims intent must be proven.

As for the substnative legal issue, if the leaker of Plame’s identity did not know she was a covert agent (as opposed to some other type of CIA employee) and did not know the federal government was taking active steps to conceal her identity (when it appears that it was not), then I am not sure why the leak was so egregious. I haven’t steeped myself in the minutiae of this controversy, but it seems to me that the statutory language incorporates the elements that would make the leak an egregious act — placing political considerations above an individual’s safety and national security. Yet if Plame’s identity was not, in fact, a carefully guarded secret, where’s the damage? Thus, in the end, I believe that if the prosecutor can make his case, heads should roll. If not, because evidence of necessary elements is missing, I’m not sure why this is such a big deal (though I’ll be happy to convinced otherwise.

P.S. As for Kleiman’s point that this is reason enough to vote against Bush, I’m also not convinced. Holding all else equal, I am not sure why I should be more against an administration that employs the Plame leaker than one that would employ Sandy Burglar. My vote — which I expect to explain at a later date — will be based on other things.

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