I'm overdue to get back to some of the legal loose ends on the Valerie Plame case, including the last bit of my response to Mark Kleiman on the Espionage Act. I see Kleiman half-heartedly pitches a John Dean column discussing the application of 18 USC 641:

I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst . . . working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft . . . was being ignored by DEA, and its investigation of money laundering. . .

Randel leaked the fact that Lord Ashcroft's name was in the DEA files, and this fact soon surfaced in the London news media. Ashcroft sued, and learned the source of the information was Randel. Using his clout, soon Ashcroft had the U.S. Attorney in pursuit of Randel for his leak.

By late February 2002, the Department of Justice indicted Randel for his leaking of Lord Ashcroft's name. It was an eighteen count "kitchen sink" indictment; they threw everything they could think of at Randel. Most relevant for Karl Rove's situation, Court One of Randel's indictment alleged a violation of Title 18, United States Code, Section 641. This is a law that prohibits theft (or conversion for one's own use) of government records and information for non-governmental purposes. But its broad language covers leaks, and it has now been used to cover just such actions.

Randel, faced with a life sentence (actually, 500 years) if convicted on all counts, on the advice of his attorney, pleaded guilty to violating Section 641.

A prior Dean column details the charges against Randel:

[T]he London Times said that . . . it had DEA documents showing that [Lord] Ashcroft was index-numbered on the DEA files, a measure that, it said, is taken only when serious suspicions exist.

Lord Ashcroft filed a libel lawsuit against the Times, and soon traced the DEA documents back to Jonathan Randal. It turned out that Randal had leaked them to a freelance British journalist who was investigating Lord Ashcroft; the journalist, in turn, had sold them to the London Times. According to Randal's attorney . . . Randal himself received no payment for the information itself, no quid pro quo.

Dean doesn't address whether the government contended otherwise, but leave that issue aside for now. Here's how Dean describes that indictment:

Count One is based on the general theft statute - with information, once again, alleged to be the "thing of value" stolen. Count Two relies on a statue adopted in 1994 designed to protect information in government computers, where most government information now resides. The government charged that Randal "knowingly and with an intent to defraud" the government, exceeded his authorized use of the DEA computer by pulling information about Lord Ashcroft.

Counts Three through Eighteen are based on the mail/wire fraud statutes; there are sixteen counts because Randal allegedly accessed DEA computers to obtain information about Lord Ashcroft sixteen times.

This pair of statutes is especially prone to misuse. As Chief Justice Warren Burger noted, "When a 'new' fraud develops - as constantly happens - the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil." The same is true of the wire fraud statute, as he also noted.

Counts Nineteen and Twenty are further fraud charges. They appear to address the reimbursement that Randal received from the London Times when he agreed to meet with them after they were sued by Lord Ashcroft.

Now, let's look at Section 641, which punishes:

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 . . .

The obvious problem with this is that Randel apparently made off with documents. Nobody in the Plame case is alleged to have handed over to the press any classified documents. That doesn't end the inquiry under other statutes, but under Section 641 I can't see how you could prosecute anybody for stealing just by passing along a name. This is particularly the case because language like "embezzles, steals, purloins, or knowingly converts to his use or the use of another" is generally read to require taking unauthorized title to property. (This is even before we get into the all-important intent question. I remain convinced that it will not be possible to successfully criminally prosecute anyone who did not know they were passing along the name of a current or former covert agent).