or my response to Media Girl’s recommended diary which sets forth the claim that Rove may be guilty of violating this provision of the federal criminal law:
Sec. 641. Public money, property or records
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted –
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word ”value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
The following is attached to her diary as a comment, but I thought it worthwhile to make a separate diary (I worked long enough on it lol). More follows . . .
I’m going to try to explain my position in a little more detail as to why we shouldn’t get our hopes up too high regarding the federal law media girl believes may apply to Karl Rove, 18 UNITED STATES CODE, SECTION 641. Some of the following may get a little thick with legalese, so fair warning: if your eye’s glaze over at overly technical legal discussions, please feel free to stop reading this at any time. If you’re a fellow lawyer, on the other hand feel free to chime in with where you think I got it all wrong.
You need to look carefully at the statutory scheme which includes Section 641. This provision (Section 641) is a fairly standard type of embezzlement law, here extended to include any property, including records, of the government which has value. Take a look at the other laws in Chapter 31 of Title 18, and you will see what I mean. Section 641 is only the first of several provisions which deal with the embezzlement of federal property. None of them specifically address the disclosure of classified information to the press.
Now if there were no other laws on the subject, it would be within the bounds of reason to infer that the term “record” might extend to the inchoate information included within the physical manifestation of that information. And perhaps it does. Indeed, record may be a defined term that includes both the physical manifestation of that information and the information itself. I didn’t find any specific provision of Title 18 that defines “record” for purposes of these statutes in my initial cursory search, but that doesn’t mean that one might not exist. In the alternative, these issues may have already been litigated at some point in the past, and federal case law may already establish that the term “record” includes both the physical record as well as the information the record was intended to preserve.
We do know that “record” isn’t defined in section 641 specifically. Only the term value is expressly defined there. And value is defined as follows:
From the language of Section 641:
The word ”value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
Note: That definition of value is restricted to economic value. It’s an interesting question whether “value” is intended to modify “record” in this case. The statute is rather sloppily drafted in this regard, and one could argue (and maybe succeed, who knows) that only records which have some economic or market value are covered by this provision. I am going to assume that value doesn’t modify record in this case, but if it does that is another roadblock to the applicability of this provision to Rove’s conduct.
It could also be the case that record is defined more narrowly, or not defined at all. In any event, we do know that Congress has passed specific legislation to deal with the unauthorized disclosure of the identity of a covert CIA agent. In situations where the law is ambiguous (i.e., assuming that the term “record” is not specifically defined) Courts often look at other laws which arguably cover the same acts alleged to be criminal.
In this case, Rove’s defense attorneys will undoubtedly argue that Section 641 does not apply because it is a statute intended to deal with the theft of government property, not with the leak of classified government information. They will say that Congress could not rationally have intended to pass a law making it more difficult to prosecute someone for leaking the identity of a CIA agent if they already had a law on the books that makes it easier to do so.
The issue is one of statutory interpretation. If Rove leaked the identity of a CIA agent, his attorneys will claim that such information, though it may be contained in a government record is not the record itself, and since Congress has chosen to pass specific legislation pertaining to the wrongful disclosure of CIA agents, Section 641, with it’s more broad language of “record”, should not apply to Rove’s leak of such information.
Now to take the issue one more step (just to complicate matters and make things a little more interesting) let’s ask ourselves how Rove knew of Plame’s identity. Let’s say, for purposes of argument, that instead of learning about her CIA identity from some journalist who’s name he can’t recall, he actually learned of her CIA role from reading the INR memorandum which Fitzgerald seems to have such an interest in, the one that accompanied Bush, Powell and Ari Fleischer on that trip to Africa. Does that change anything? Maybe.
Remember Section 641 speaks of anyone who knowingly converts a government record to their own use. Arguably, you can convert a record to your own use if you take the information contained therein and use it for a purpose for which it wasn’t intended, e.g., for the purpose of smearing or discrediting a political opponent. This may be why Fitzgerald is so keen to know how information about Plame’s role at the CIA came into the hands of Libby and Rove, the two people we can be fairly certain had conversations with reporters concerning Plame.
If Fitz can prove that Rove or Libby, or someone else (Ari Fleischer perhaps), obtained their knowledge of Plame’s CIA identity directly from a government record, I think that makes his case for the applicability of section 641 much stronger. In that instance you have a direct connection between the record and the leaked information. It may still fail the statutory interpretation test, but the argument that Section 641 applies to Rove is definitely strengthened if there is such a direct connection between the record and the disclosure of information contained in that record by Rove, Libby or anyone else.
In the absence of such a connection however, Section 641 simply may not apply for the reasons I’ve stated above.
