Official Washington is scratching its collective head, trying to determine whether papers filed in federal court that were made public today drop a bombshell, pose a danger to the Bush presidency, or are just a sideshow in former White House aide I. Lewis "Scooter" Libby's legal troubles.
Libby testified to a federal grand jury that he received "approval from the president through the vice president" to reveal classified information to a reporter for The New York Times. The material was from a national intelligence estimate that gauged Saddam Hussein's intentions toward developing nuclear weapons.
Has President Bush, who has publicly condemned leaks of secret material, broken the law, or is it within his powers to declassify information and allow it to be given to reporters, despite his condemnation of leaking?
First, we have to remember what Libby has been charged with: that during the investigation into who leaked the identity of CIA employee Valerie Plame, he perjured himself, made false statements and obstructed justice. Libby was not indicted for leaking classified information, and in the court papers it is clear he said the material he leaked was no longer classified.
The former chief of staff to Vice President Dick Cheney says an administration lawyer advised him that the president had the authority to declassify sensitive documents. Other lawyers are not so sure, but the preponderance of evidence (as lawyers would say) seems to be on the side of the president.
A little history is in order. During World War I, President Wilson claimed the authority to establish a classification system. In 1951, during the Korean War, President Truman claimed in an executive order that the Constitution gave him the authority to set up a new method for protecting sensitive information connected to national security.
In 1988, the Supreme Court ruled that the president had the right to determine who should and should not have access to classified information. Then, in March 2003, around the start of the war in Iraq, Bush expanded that power to include the vice president.
So, barring a court challenge, it appears that both Bush and Cheney have the power to say what is and is not classified.
So, if Bush did not do anything illegal by giving Libby the green light, is the White House off the hook?
Not necessarily. Libby's claim could still cause political damage to a president who has spoken out strongly against leaks. For example:
Oct. 7, 2003: "I've constantly expressed my displeasure with leaks, particularly leaks of classified information."
Sept. 30, 2003: "There are too many leaks of classified information in Washington. ... And if there's a leak out of the administration, I want to know who it is. And if a person violated the law, the person will be taken care of."
So, the White House is now bracing itself for charges of hypocrisy.
Joe Wilson, the husband of Valerie Plame, has already said Libby's claim ties the president directly to a campaign against his wife. The "outing" of Plame came after Wilson publicly disputed a claim by the Bush administration and the British government that Saddam Hussein sought nuclear material from the African country of Niger. Wilson believes the White House orchestrated a behind-the-scenes campaign to discredit him and his wife.
But it is far from clear that Bush ever condoned a smear campaign. What does seem clear, if Libby is correct, is that the White House felt it had to declassify sensitive material in an attempt to counter Wilson's claims about Iraq's nuclear intentions.
The outing of Plame is still a murky affair. We will undoubtedly learn more when Libby goes on trial in January. And federal prosecutor Patrick Fitzgerald may reveal more in the interim.
For the moment, both Bush and Cheney say they can't talk publicly because legal proceedings are under way. And we don't know what they told prosecutors in secret. The White House has asked for patience.
Former President Nixon got in trouble by setting up an illegal "plumbers" unit to try to discover the sources of leaks, even if that meant breaking into offices, setting off the scandal known as Watergate. Now we may have a president who could find himself in trouble because he permitted a leak by making it legal.
Bush critics would do well not to carry the Nixon analogies too far. But someone, somewhere, probably on a TV talk show, is likely to start calling this situation "Leakgate."