Scooter and the Law

Publius of Legal Fiction gives an overview of the Espionage Act as it may (or as Publius argues, may not) apply to Scooter Libby. Borrowing from Mark Kleiman, he lays out the following elements as necessary for a conviction:

(1) possession [legally or illegally] of (2) information (3) relating to the national defense (4) which the person possessing it has reason to believe could be used to damage the United States or aid a foreign nation and (5) willful communication of that information to (6) a person not entitled to receive it.

Publius argues that in the context of the statute, Libby's act didn't violate elements two and four. This isn't to say that one could not plausibly construe the statute in such a way that Libby did violate--just that Publius thinks that the most reasonable construction won't bear such an interpretation. I disagree, as I'll explain below. To the former clause, he argues:

The obstacles to indictment and prosecution are elements #2 and #4. Let's start with #2 - "information." The problem is that the second element isn't limited only to the vague word "information." That's just the only applicable word in a long list of words. Here is the complete text of that element:

document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense

The problem is that "information" is surrounded by a lot of specific words listing tangible items. As you law dawgs probably know, there's a principle of statutory interpretation called ejusdem generis, which literally means "of the same kind." The idea is that when you have a bunch of specific terms followed by a vague general term, the meaning or scope of the general term should be limited to the same types of things listed by the specific terms. For instance, let's say that a statute prohibited "cars, motorcycles, trucks, motor-scooters, and other vehicles" from entering the park. Under this canon of interpretation, "vehicle" probably would not refer to an airplane flying overhead (although such a reading would be plausible - especially to those who really hated, say, Delta).

Same deal here. The specific words ("sketch," "photograph," etc.) likely limit the scope of the general term ("information") to more tangible items. Under this view, leaking the State Department memo would be a better fit for the Espionage Act than would leaking Plame's identity.

I just disagree with how Publius is reading the statute here. I think that "information" is written so that it is specifically separated from the tangible items that precede it. This is true for two reasons. First, the way the first clause of the sentence ends: "or note relating to the national defense." The "or" would be redundant if the purpose was to link as "of the same kind" both the tangible items and "information." That leads one to the second problem in Publius' interpretation--the lack of "other" before information. In his example, he lists a bunch of items and then ends it with "and other vehicles." This implies that these vehicles are to be "of the same kind" as the ones that came before it. Had the clause instead read "and vehicles," it would imply that vehicles is distinct from what came before. Essentially, if the framer's wished the statute to mean what Publius wants it to mean, then it would make more sense for it to read like this:

document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note relating to the national defense, or other information relating to the national defense.

Subtle, but critical distinction.

To the latter element, Publius forwards the following claim:

But the real problem is element #4 - "reason to believe [the information] could be used to damage the United States or aid a foreign nation." Again, I concede that it's at least plausible to read the statute in a way that covers Libby, but that reading would not be the best one. When you read the entire statute, you get the clear sense that this statute was meant to criminalize the act of disclosing information to people potentially hostile to America or to those who wanted to harm or damage our national security. Remember that the act was passed in 1917 at the height of the Red Scare. To me, when you read all the sections of the Espionage Act together, the Plame leak doesn't quite fit.

Again, I disagree on Publius' notation of the most reasonable interpretation. Basically, the dispute we have runs as follows. He reads the clause as saying "reason to believe the information could be used [by the receiver] to damage the United States or aid a foreign nation," and I read it as "reason to believe the information [contains content that] could be used to damage the United States or aid a foreign nation." Obviously, I believe my interpretation is superior. I believe the purpose of the statute is the very reasonable goal of trying to minimize the spread of information which could damage American security. It doesn't matter who receives it--the promulgation of classified information is a security risk in of itself. If Scooter Libby had told me our nuclear launch codes, I think that would fall within the statute even though I don't mean harm to America. That's because I read element four to be characterizing the information itself, not the person receiving it. The act is designed to prevent the revealing of dangerous information, and it doesn't by its terms limit itself to "dangerous persons." The statute specifically mentions what "type" of person needs to receive the information in order for the law to kick in, in element six: "a person not entitled to receive it." That's a far broader set of persons than what Publius is talking about--again, had the statute drafter's meant what Publius says they mean, then they would have noted threat level as a determining factor in who the information was revealed to, not what the information was. The fact that element six exists independent of element four should suggest that they are meant to be evaluated separately. I can see where he's coming from in his interpretation, but to me it's less reasonable than one in which element four is a constraint on information, not receivers.

So basically, I do think that the Espionage Act could apply to Libby. Publius forwards the Intelligence Identities Protection Act as an alternative method for nailing Libby--but I think Kevin Drum's take down of it is pretty compelling.