Redstate

at this point:

1.  It was all Rove and only Rove all along, talking to Cooper, Miller, and Novak.  If so, that's bad for him, but the administration as a whole will be relatively undamaged by this.  Bush and Cheney can claim innocence and purge Rove from the ranks.
   
2.  It was a several people doing the leaking (what you seem to be arguing).  This would be far worse for the administration, IMO, as it would be easier to prove systematic misuse of classified information by the administration.  It could drag the whole team down as it would suggest an official strategy rather than a rogue element operating without permission.

There was an article on Findlaw a few weeks ago which suggested that the reason the prosecutor/investigator is going after Cooper and Miller is that he's attempting to prove number 2 to be the case.....

I mean that.  Couple notes, though:

On the "warning away" point:  Luskin's presenting a public relations defense, not a legal defense.  As I read the statute,* public disclosure isn't an element of the Section 421 charge.  Nor is the fact that Rove didn't provide Valarie Plame's name likely much a defense.   (See:  http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000421----000
-.html.)  So far as I can tell, Rove's defense continues to hang on his knowledge of Plame's status and whether Plame's occupation was already public knowledge before he made his disclosure.

On the "burned" point:  It's not credible.  The cited clips from Cooper's story (which are in the underlying NRO article, but not above) are simply too attentuated -- and too obviously based on other sources -- to be considered "burning" Rove.  And, in any event, a subsequent dissemination (the alleged "burn") by a reporter doesn't excuse the initial dissemination.  

On the blanket waiver point:  It's not at all clear to me that Rove was Miller's source, and it's not at all clear to me that Cooper's insistence of a specific waiver is based on "sheer stupidity" by him or his attorneys.  In addition, the assertion that Rove somehow didn't know that Cooper and Miller were continuing to withhold cooperation despite his alleged blanket waiver is simply incredible.  One has to assume that Rove reads the newspapers, no?**

von

*I don't practice in this area; my opinions do not constitute legal advice.

**Indeed, that assertion that Rove somehow didn't know that his blanket waiver would suffice is the weakest part of this defense.  

From a CNN article from October 2003, there were 2 administration sources:

Novak said Monday that he was working on the column when a senior administration official told him the CIA asked Wilson to go to Niger in early 2002 at the suggestion of his wife, whom the source described as "a CIA employee working on weapons of mass destruction."

Another senior administration official gave him the same information, Novak said, and the CIA confirmed her involvement in her husband's mission.

In his column, Novak attributed the information about Plame's involvement in Wilson's trip to Africa to two unnamed senior administration officials.

And he claims two administration sources in his original column, so I don't think there is any way to claim option 1...

Now, this is just speculation, but...

I have heard it suggested that Rove got the information from Miller or some other reporter (it was out there) and that he then turned around and told it to Cooper and Novak.  Of course that doesn't get him out of trouble, because he was also claiming that he got the information when Novak's column hit the wires.  Ah!  My head hurts.

Anyway, my point it that there must be somebody else who leaked it.  Who told Miller (in that scenario)?

between what Rove wrote in his email and what is actually the case?  It is not clear to me whether Rove intentionally leaked Plame's CIA status or whether it was an innocuous mention of something everyone "already knew."  But I do know not to take a politician's words at face value, especially when they are delivered directly to a reporter...

THE PASSIVE KARL ROVE AND THE ACTIVE JUDITH MILLER

info from the unknown leaker and then contact Rove for confirmation (his second source sounds like he called the source to ask if what he got was fact).  

I am not so convinced that Rove was out there doing the calling, for one thing Rove didn't contact Cooper, Cooper contacted Rove, and after discussing welfare asked him about Wilson, and at that point Rove warned him off the story, and from the memo it didn't sound like a Plame/Wilson hit, but more a "if you get to far out on this story you are going to get burned, because Wilson isn't totally trustworthy" and then gave the information about who sent him as impeachment of Wilson not a hit on Plame.

I am not all that convinced Rove is the target of the investigation at this point.

I am also not so sure why Miller's and Cooper's cooperation is needed if the other reporters talked, and Rove confessed at least to some degree of leaking the info.

I can't help but think after reading this, that there is somebody else being targeted here, or there are other crimes being investigated.  

I am also thinking that Miller's source is not Rove-obviously if it was she would have already started talking herself given that Rove's waiver was meant to apply to all and she is still going to jail.

Unfortunately, it doesn't get Rove out of trouble.  Either way, he was a "source" for the information.  If he didn't have clearance to access the information about Plame, then he didn't break any laws.  But he is still in trouble for claiming (through McClellan) that he was not the source.

It also puts Bush in a tight spot.  Bush said he would fire anyone found to be involved in the leak.  Of course Rove wasn't working for the White House at the time.  But he is now...

So, is it pretty certain that Miller is protecting a second source?  I haven't seen any speculation on who it is.  Are there any rumors out there?

by Rove, it was written by Cooper and was a summation of what he was told by Rove to his superiors.

Also, Rove's intentions seem to be from teh context of the email to more warn Cooper off the story, because of the weaknesses in it, than to actually put out a hit on Plame.  Also, with Cooper at least, Cooper called Rove and brought up the subject of Wilson not the other way around.

We don't know what other reporters Rove talked to or what was said at this point, everything else is just speculation.

seems like it might have some legs, especially given that from Luskin's comments Fitzgerald doesn't much seem to be after Rove (especially considering how long it has been since Rove testified and signed his waiver to let reporters talk-you would think if it was all about Rove doing something, the indictment would have already come down with or without Miller's testimony).

I am thinking Fitzgerald is after the other source, and Miller seems as plausible as anyone else at the moment.

I'm confused (really, I just don't know the laws involved here fully). You say that if Rove didn't have clearance to access the information about Plame then he didn't break any laws.

I'm guessing this means that Rove was leaked the information before he leaked it. Either way he revealed the identity of a CIA operative. Isn't that  treason or something?

It's informative. Then return.

Is it possible that Ricard Clark is the other source?  He worked in NSC and was second in command behind Condi Rice.  I think that would make him a Senior Admin Offical.  

It's always amazed me as an aspect of human behavior that when an "open secret" is acknowledged, the person who makes people realize that the open secret is in fact open is usually the one who receives all the blame for it, even though it wasn't much that others didn't already know.  

It's a kind of cliquish behavior -- everyone knows everyone else's secrets in the group, but the first person to talk about them is the one who gets scapegoated.  Really, this whole thing about Rove is a fascinating case study in group psychology.

Just to point out what I was talking about:

It is highly unlikely that Rove (or any other as-yet-unidentified source) violated the Intelligence Identities Protection Act. That statute applies when:

1) a person having access to classified information that identifies a "covert agent" discloses the agent's identity to a person not authorized to receive the information, where the person making the disclosure knows that "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States"

I would make one quibble with the statement that says that probably nobody broke the law.

Obviously somebody with access let the information out.  That is the only way that we could be talking about it.  It is likely that we will never know who that was.

The other place where there is wiggle room that has been talked about recently is that it was known that she worked for the CIA, but never that she was a covert agent.

But then my question is, who was it who first pointed out that she was a covert agent (and didn't just work for the CIA in some other capacity).  Or was it just taken for granted?

it is Cooper's voice.  But my point is simply that we really can't tell Rove's intentions, one way or another, from the tone or substance of what he told Cooper.  The fact that Cooper asked Rove about Wilson supports the idea that Rove did not premeditate some sort of assault on Wilson, but it is still hard to judge what his intentions were in mentioning Wilson's wife's CIA status.  You are right; until Rove makes some sort of statement (and possibly afterward) any motives ascribed to him are speculative.

a poor choice of words on the part of Novak (it all depends on who Novak's sources were and exactly what he was told).

But it is possible that Novak used "operative" to mean "somebody who works for the CIA" rather than "somebody who works covertly for the CIA."

status because he was telling Cooper why Wilson wasn't being truthful (remember in Wilson's piece he said that he was sent to Niger at the request of Cheney and the director of the CIA).  Rove told him that neither Cheney or Tenet sent him, but instead he was chosen on the recommendation of his wife who worked for the CIA.  The info as to how he was chosen and by whom also goes to the impeachment of Wilson.

Rove's comments to Cooper didn't seem intended to out Plame or even as an attempted hit on Wilson, it sounds more like Rove offering a tip to Cooper that there was more to the story and that Wilson wasn't the best basket to put all the eggs in.

But at some point it did come out.  Here we are talking about it, after all.  To me that means that somebody screwed up.  For whatever reason, it should not have ever been revealed.  I have no problem with revealing that she works there.  

But like I said.  I doubt we will ever find out who did it...

Well, unless Rove had clearance.  What was he at the time?  Senior Advisor to the President?  I don't really know what that means, but there will be records on whatever clearance he had at the time.

"Bush said he would fire anyone found to be involved in the leak."

Um, no.  Bush said that if anyone in his administration had broken the law, "they would be taken care of".

Since this statement was made directly to the press, "taken care of" cannot possibly mean "protected from retribution" 'cause not even the Left in their wildest dreams would claim that Bush is stupid enough to say that on the record.  Obviously in this context "taken care of" means "prosecuted".

But the FIRST part of the statement is the important one.  "involved in the leak" is not the same as "breaking the law".

But it's sure nice to see that everyone from Levin to Kerry is reading from the same script: "Bush promised to fire" blah blah blah "involved in the leak" blah blah.

Let's suppose that Andrea Mitchell was the person who leaked the information to Rove. Is she then guilty of a crime? No. Because, notice, in order for a person to be guilty under the IIPA, they must have gained knowledge of the covert agent's status through their own access to classified information:

1) a person having access to classified information that identifies a "covert agent" discloses the agent's identity to a person not authorized to receive the information, where the person making the disclosure knows that "the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States";

2) same thing, only the person making the disclosure "learns the identity of a covert agent" through his access to classified information;

In other words, if Rove learned about this through Andrea Mitchell (or though any other means other than he looked through some classified info and found her name), not only is he not guilty, but his source is also not guilty, unless they also knew about her identity through classified information.

Given Mitchell's statement that Plame's identity was no big secret in Washington or the media, the chance that Rove actually broke the law here is so small that it virtually doesn't exist.

I find it impossible to believe in a Deity so benevolent as to present me with the sight of Richard "I Looked Into Condi's Soul" Clarke doing the perp walk as my morning pick-me-up.  The only thing that would make that scenario even more glee-inspiring is if Clarke got a call from Secretary of State Rice, wherein Condi carefully explains to Clarke what "Leavenworth" is.

This whole thing started way back before the election.

I find it impossible to believe that a New York Times reporter would cover up for a source if revealing the source's identity would damage a Republican administration in an election year.

So I think that whoever it is that Ms. Miller and the New York Times are covering for, the revelation of his/her identity would be very injurious to the New York Times and/or the Democrat Party.

I lean towards the idea that it was either Rand Beers or Richard Clarke.

Regarding your RedHot find:

Arguably, the fact that "Valerie Plame" was publicly identified as Wilson's wife makes Rove's statement more, not less, problematic.  

The key phrase is "intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information".  This suggests to me that:

1.  Identifying a covert agent as something other than a covert agent is not a problem under the statute; nor should the identification of a covert agent as something other than a covert agent pose a problem as to a later prosecution under the statute.  Indeed, the whole concept of "cover" is not to make a person disappear, but rather to create a misleading impression of that person's employment.  IOW, were I a covert agent, saying "von is a chemist and is married to von-hilda" would not be a violation of the statute, nor would it preclude a subsequent prosecution of a person covered by the statute who made the claim "the husband of von-hilda is a covert agent."
   
2.  Note that the crime requires the provision of "any information identifying such covert agent[.]"  Rove's attorney apparently takes the position (and it's been picked up by Fox) that "any information identifying" means "her name."  That's a reach -- and it's particularly a reach if there's information out there (as you've found) that suggests that it's easy to figure out that Valerie Plame is "Wilson's wife".
   
3.  IOW, prior statements that "Valerie Plame is Wilson's wife" are not at all helpful to Rove [or others in his position], for his apparent defense relies, in part, on the proposition that when he said "Wilson's wife" he did not identify Valerie Plame.

My two cents; all caveats apply:  i.e., I'm speculating, giving my insta-reaction, and you should not rely on the foregoing as legal advice.

To me it is little more clear cut, though.  It all hinges on what clearance Rove (or whoever else might have leaked the information) had.  People who don't have access to it can talk about it all they want.  That is just a rumor.  I think it is wrong for anybody with actual access to the information to pass it along, no matter how it actually came to them.  It is as simple as that.

Suppose that it is just a rumor, and it gets to somebody who can check it out.  And they do verify it.  Then they pass the information on.  To me, the brilliant legal expert that I am (NOT), that is illegal.

To me, though, even if the person did not verify it, it is wrong.  Perhaps because it has come from somebody that is in the know.  They should know better.  To me, security clearance comes with some responsability.

Either way, I don't think it matters.  Can you imagine trying to prove who learned what when from whom?  And when?  Boggles the mind.

From a DoS transcript (June 10, 2004):

QUESTION: Given -- given recent developments in the CIA leak case, particularly Vice President Cheney's discussions with the investigators, do you still stand by what you said several months ago, a suggestion that it might be difficult to identify anybody who leaked the agent's name?

THE PRESIDENT: That's up to --

QUESTION: And, and, do you stand by your pledge to fire anyone found to have done so?

THE PRESIDENT: Yes. And that's up to the U.S. Attorney to find the facts.

And from a FoxNews article (I couldn't find the official transcript) (October 8, 2003):

McClellan took exception to suggestions that the leak was intended to punish Wilson for speaking out.

"If someone in this administration leaked classified information, they will no longer be a part of this administration, because that's not the way this White House operates," he said.

McClellan talks for the White House, not Bush, per se, but still...

This is getting kind of loony... "Bush said the leaker would be fired so he's a big fat liar if he doesn't fire the person we declare to be the leaker."

We still don't know whether Rove was THE leaker. It is entirely possible that Rove learned about Plame's CIA employment from non-governmental, non-official sources. Note his use of the word "apparently" in the Cooper e-mail. If Rove found out from a reporter or from cocktail party chit-chat, then that's hardly a "leak" of confidential information.

I never said anything closely resembling that.  I just said that it puts Bush in a tight spot.  Not that he was a liar or that he wouldn't be able to get out of it.

I don't know what "THE leaker" means, but Rove was involved in the leak.  Everything else you say is conjecture.  Do you have a source that says how he learned about it?  As I have said, to me all that matters is what access he had, not how he found out.  If he had security access that would allowed him to have access to this information, then he would have known it was wrong to pass this information along.  I don't care how he found out.  It is the principle.

But that is just me.

the access or need to know for that information.

At the time he was in an advisory position that was more liason oriented, not anything that would appear to give him the type of clearance he would need to get that kind of information.

But we are really just guessing.  There will be records, so we will eventually know.  But that gets him out of legal trouble, not political.

I hope you are right.