Posted 8:56 AM by Robert

A Different Kind Of Conspiracy

Mickey Kaus helpfully sums up the current state of Deep Throat conspiracist play:

Slate contributor Edward Jay Epstein isn't giving up on the "composite" theory of Deep Throat. ... Hmmm. Doesn't Slate contributor David Greenberg denounce as "insidious speculation" such "reckless Deep Throat guesswork" that

plays havoc with history. The premise of the fabrication and composite and silent coup theories is that accepted history is counterfeit, that the truth about the past can be ferreted out not by studying official records, but by seeking out what remains hidden—which, in conspiracist thinking, is always hidden deliberately.

I think he does!

But Tim Noah seems pretty convinced that Mark Felt's leaks to Woodward and Bernstein at the Washington Post broke federal law:

The likeliest statute under which Felt could have been prosecuted would have been Title 18 USC §641, which prohibits theft of public money, property, or records. The statute is a nasty piece of work, prohibiting not just theft but government leaks. (The relevant language is "conveys or disposes of any record … or thing of value of the United States." Never mind that the people to whom the leaks are "conveyed" are the very taxpayers who paid for the information to be gathered in the first place.) The statute was on the books in the early 1970s when Felt did his leaking

From the other side of the political spectrum, Gary Aldrich asserts that "Mr. Felt broke numerous federal laws, but received immunity from prosecution by hiding behind the skirts of two reporters at The Washington Post." Woodward has been at pains - on his recent Larry King interview, for example - to argue that he does not believe that Felt's leaks broke any laws. Mr. Woodward's reasoning in reaching that conclusion was rather, shall we say, casual. He essentially argued that Mr. Felt hadn't taken any FBI records or other materials that were covered by statutes criminalizing personal appropriation of government assets. But this is absurd. The statute quoted above covers anyone who "conveys or disposes of any record … or thing of value of the United States." Since the FBI information appropriated by Mark Felt and leaked to the Washington Post was a major factor - perhaps the major factor - in propelling each of these reporters to high profile lucrative careers, and simultaneously settling the Washington Post on a higher, more profitable and influential level on the national media totem poll, it's more than droll for Mr. Woodward to suggest that Mr. Felt's purloined information was not a "thing of value." Mr. Woodward stands to make still more money from the purloined "not-a-thing-of-value" information when his book comes out in July. (Heck, the right person in possession of that information could even have used it to make a killing in the securities and currency markets at the time.)

Where prosecutors have moved in the past, the federal courts have not been easily persuaded that the First Amendment or other public policies offer much shelter for those who appropriate government information unless they have a heart quite a bit cleaner that Mr. Felt's appears to have been. For example:

In 1984, satellite photos depicting the construction of [an] ... aircraft carrier ... were leaked to Jane's Defence Weekly. Following a landmark trial, the leaker-- Samuel Loring Morison, a Navy intelligence analyst-- ended up serving two years in jail. Incredibly, the charge against Morison was espionage, marking the first time that anyone had ever been convicted of a crime, let alone espionage, for providing classified information to the media. (United States v. Morison, 604 F. Supp. 655, appeal dismissed, 774 F.2d 1156 [4th Cir.], cert. denied, 109 S. Ct. 259 [1988]).

The court specifically rejected the defendant's First Amendment defense to his conviction under Title 18 USC §641, noting that "[w]e do not think that the First Amendment offers asylum . . . just because the transmittal was to a representative of the press." That means you, Messrs. Woodward and Bernstein. Of course, the media keep giving themselves a "pass" for this kind of thing, as in the article from the Secrecy & Government Bulletin, published by the Federation of American Scientists*, quoted above:

The worst fears engendered by the Morison case did not come to pass, and today most national news outlets routinely report classified information, fueling the congressional oversight process and adding an essential dimension to government accountability. Furthermore, this role is all but universally recognized and accepted.

Sure, buddy. Just keep saying that to yourself. Just like you keep saying that you have a right to keep your sources secret even when a federal prosecutor subpoenas their names. They can't send you to jail for contempt, can they?! Actually, they can.

But Messrs. Woodward and Bernstein - and, for that matter, the Washington Post itself - have another agenda item in all this: conspiracy and aid-and-abetting laws apply to thefts of public property under Title 18 USC §641. Mr. Felt did not just dump his information on the Post. The Post and its reporters entered into a long-term agreement with Mr. Felt pursuant to which he converted that public information for reasons quite other than a desire to inform the public. He was nicely aided and abetted by his arrangement with the Post and its reporters, and by the fury his purloined information occasioned.

Yes, indeed. It appears that Messrs. Woodward and Bernstein, and the Post, were likely all guilty of federal felonies here - not just Mr. Felt. Does that take off a bit of their shine? Not that anyone is suggesting they should be, or should have been, prosecuted (even without the statutes of limitations). But such considerations may have played a role in the desire on the part of the Post and its reporters to keep their source secret over the years.

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* This passage originally misindentified the article as coming from the Washington Times.