At the beginning of the Plame scandal, the President said it was his intention to find out who made the late night phone call that blew the cover of a secret CIA operative who happened to be the wife of Joseph Wilson, a White House political enemy. A spinoff of this bit of vindictiveness was that Ms Plame's career was derailed, and far more importantly her secret foreign contacts exposed to reprisals. Clearly we would be getting no further information from those sources, if they are still alive.
The midnight disclosure also violated the law.
The President professed both disbelief and indignation that anyone in the White House might have made the phone call. The President abhors leaks. He said that he would fire the person responsible, if that person worked in the White House. The President called on the leaker to voluntarily come forward. No one did.
The security breach became the subject of a criminal investigation that has led (so far) to the felony indictment of Scooter Libby.
Now it looks like the White House is preparing an escape route if it turns out that the President himself authorized the midnight phone call outing Ms Plame, as Libby's legal team is likely to claim.
It works like this. Press Secretary Scott McClellan is arguing that Scooter Libby's disclosure of a different bit of classified (and BTW completely erroneous) information to Judith Miller about Saddam's alleged efforts to obtain uranium, was completely legal, because the President ordered it.
According to McClellan, if the President himself authorizes a leak, he in effect declassifies the information at the exact moment of the leakage. The President has the legal authority to declassify, hence _any_ classified material leaked at the President's behest is no longer--by definition--a leak of classified material, and therefore no crime could have been committed. QED.
It is not hard to see where this new legal principle will take us.
But let's back up a little, before we give this logic our seal of approval. Let's look at a couple of hypothetical tests.
We have normal procedures in place for the exercise of presidential powers. We all know, for example, that Mr. Bush has the power to pardon federal criminals, but let's say Libby is convicted and the President, instead of following established procedure for a pardon, instead approves a plan to break Scooter out of prison--maybe White House underlings scale the walls of Leavenworth in the dark of night with ladders, guns, and dynamite, to rescue Scooter from his cell. Is that in effect a Presidential pardon?
Or can the President call up Langley and get the names of two or three of our undercover CIA agents, and then whisper their identities to a newspaper columnist who will announce them, to the detriment of national security, in the morning newspaper? I assume Scott McClellan would say "yes." Nothing illegal, nothing to see here folks, move along.
Or can the President, if he so chooses, reveal vital military secrets with a phone call to a favored reporter who will then announce these secrets to the world, and our enemies, the next morning? Is such Presidential leakage actually an automatic "declassification" of the information? Or would this instead be in the realm of high crimes and misdemeanors mentioned in the Constitution as grounds for impeachment? Or would it simply be treason?
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