Decreasingly Hypothetical Questions

Here are three genuine, not utterly hypothetical, questions inspired by the revelation that Libby fingered Cheney as the person who instructed him to leak information from a National Intelligence Estimate hyping Iraq’s supposed efforts to obtain weapons of mass destruction. I really don’t know the answers; all I have are guesses at best.

  1. Does Vice-President Cheney have the legal authority to declassify material single-handedly?
  2. And even if he does, if Cheney proved also to be the source of an instruction to leak information about Valerie Plame, does his legal authority extend to the exposing the identity of a covert CIA agent?
  3. And if the answer to either question above is “no” does that amount to an impeachable offense?

My guesses–and they are only guesses–below. Make your own before peeking.

1. Does Vice-President Cheney have the legal authority to declassify material? I am certain that there is nothing inherent in the office of the Vice-Presidency that includes the authority to declassify information. (Conversely, I can imagine arguments that such authority might be an inherent Presidential power; I would also expect that there are such statutory powers.) I also rather doubt that there is any legislation giving him this power, although I don’t actually know whether this is the case. I do know, however, that Presidents frequently delegate powers to the Veep, or appoint them to various administrative roles, e.g. chairs of intra-governmental committees, and it’s entirely possible that one or more of these roles carries declassification authority. [Note also that the Washington Post article is careful to state that parts of the report had been declassified, so it’s not certain that the leak actually included classified material.]

2. And even if he does, does this extend to the exposing the identity of a covert CIA agent? The Post article doesn’t directly tie Cheney to ordering the Plame outing, but it’s quite suggestive. Suppose, hypothetically, that further testimony ties him to the Plame leak more directly. Even if Cheney has the power to declassify documents, it doesn’t follow that this includes the power to ‘out’ a covert agent, as those identities are jealously protected by a special statute. Furthermore, even if one argues via far-out theories like the unitary executive that the President has inherent authority to violate statutes that might restrict his speech — and the argument is not wholly fanciful — I fail to see how an argument premised on the unitary and unique role of the President should also encompass the vice-president. (Although in fairness I should note that the D.C. Circuit and to a lesser extent the Supreme Court flirted with the idea that the Veep enjoys some sort of derivative Presidential powers and immunities in the recent dust-up over access to Cheney’s energy task force’s records.)

3. And if the answer to either question above is “no” does that amount to an impeachable offense? For the straightforward leak of the NIE, I’m pretty sure the answer is ‘no’: So much stuff is classified that should not be; leaking it is a very standard part of DC culture; leaks even those with an agenda also often serve the public interest as they add information to the public debate. While technically this might be a serious crime, my instinct is that absent some special circumstances in which the information was actually particularly harmful to ‘sources and methods’ or other grave national interests when released a mere leak is not the sort of action for which impeachment is the politically, morally, or precedentially appropriate remedy. (Of course if some prosecutor wants to conduct a leak inquiry, that’s fine with me.)

That doesn’t mean I think that taking us to war on false pretenses might not be an impeachable offense. It just means that technical violations of the classification rules by leaking information of no great value to our enemies ought not to rise to that level on their own.

But the Plame leak is a much trickier issue. If it proved to be the case that Cheney ordered the outing of Plame without authority and with the knowledge that she was a covert operative then I think given that Congress has made clear by statute that this is a special circumstance, this leak does rise to the sort of ‘high crime’ that is an impeachable offense. It was something that directly weakened the US by exposing an agent, ruining her value to the CIA and also her career, and it was done for vile, partisan purposes, perhaps even in part as personal payback. [I also think Congress has the constitutional right to ignore impeachable offenses, so no duty arises from this.]

But suppose that the defense is that Cheney didn’t know she was covert, a defense frequently raised in the media in relation to other suspects in the Plame case. Then I’m not so sure. Here we have a combination the intent to engage in garden-variety leaking combined with a negligent failure to find out the real facts. Bad. Very bad. But impeachable? I’m just not sure, and I suspect in case of doubt one probably shouldn’t go forward.

Again, these are guesses, at most tentative, and not the product of research. More facts, research or thought that might produce a better more considered answer.

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13 Responses to Decreasingly Hypothetical Questions

  1. Half says:

    “the argument is not wholly fanciful”

    As always, Michael, you are kind to a fault.

  2. Mojo says:

    The part about portions of the NIE having been declassified is a red herring. Those portions were declassified as part of releasing them to the public (so they weren’t even FOUO any more), so it would be impossible to leak them. That would be like “leaking” a page from Huck Finn.
    IMHO, the answers to your questions are:
    – The President can declassify classified material and also can delegate that authority, at least for specific purposes. However, I don’t think that’s what happened here. When something is declassified, it’s not declassified for just a little while, it’s simply no longer classified at all. In this case, the NIE remained classified. Authorizing release of still classified material to a person or group which wouldn’t normally be authorized it would also be within the President’s powers, but only to accomplish a legitimate purpose and it would also be accompanied by a charge to keep the information within a select group, which would pretty much defeat the purpose of a leak to a news organization.
    – I agree with your understanding that this inherent authority does not extend to areas which have been specifically forbidden by statute.
    – I agree that outing a CIA agent would be an impeachable offense for the reasons you’ve stated (although I don’t think there’s a chance in a million of it happening). On the issue of leaking part of the NIE, I agree with your conclusion that this probably wasn’t an impeachable offense but disagree with your reasoning. “Everybody does it” isn’t an effective defense in second grade, let alone the highest levels of government. By that logic accepting bribes wouldn’t be impeachable so long as enough other people did it too. Absent other factors (such as a specfic statute), I think whether or not a leak rises to that level comes down to the harm (or potential harm) to the nation’s security caused by the leak. In this case, I don’t think the direct harm of the information leaked was very great (despite the fact that it was probably defined as “extremely grave damage” by the way the information was initially (over)classified).

  3. Patrick (G) says:

    Libby had two direct-report bosses: Cheney and Bush.
    Cheney may simply be the second fire-line behind Libby.

    Cossacks working for the Tsar and all that.

  4. The NYT’s Neil Lewis ran a similar story today, and there’s an interesting take on the matter elsewhere in today’s NYT. From Porter Goss, on the

  5. Op-Ed Page
  6. :

    On the other hand, those who choose to bypass the law and go straight to the press are not noble, honorable or patriotic. Nor are they whistleblowers. Instead they are committing a criminal act that potentially places American lives at risk. It is unconscionable to compromise national security information and then seek protection as a whistleblower to forestall punishment.

    [. . .]

    I take seriously my agency’s responsibility to protect our national security. Unauthorized disclosures undermine our efforts and abuse the trust of the people we are sworn to protect. Since becoming director, I have filed criminal reports with the Department of Justice because of such compromises. That department is committed to working with us to investigate these cases aggressively. In addition, I have instituted measures within the agency to further safeguard the integrity of classified data.

    So according to Porter Goss, the Director of the Central Intelligence Agency, Scooter Libby and his “superiors”–George W. Bush, Dick Cheney, Andy Card, and Karl Rove–are ignoble, dishonorable, and unpatriotic. They are criminals who have put American lives at risk. Their actions are unconscionable.

    Maybe we’ve finally found a good Republican after all. I guess we’ll find out when he launches his investigation against these criminals who have “abused the trust of the people we are sworn to protect.” I’m looking forward to Goss’s criminal reports and his aggressive investigations against Libby, Bush, Cheney, Card, and Rove.