ABC's "Closer Look" channeled Toensing to provide one-sided legal view of CIA leak investigation

In an ABC World News Tonight segment billed as "A Closer Look" into the investigation of the alleged leak of CIA operative Valerie Plame's identity, ABC News senior foreign affairs correspondent Jonathan Karl presented a one-sided report on the possible crimes involved that solely reflected the legal analysis of Republican attorney Victoria Toensing. Purporting to review the possible outcomes of special prosecutor Patrick Fitzgerald's investigation, Karl presented only Toensing's oft-repeated claim (offered here, here, and here) that this is "a nearly impossible case to prosecute" because the 1982 Intelligence Identities Protection Act (IIPA) sets a "high bar" for prosecutions under it.

In relying solely on Toensing, who in numerous media appearances (here and here) has promoted the argument that the IIPA is inapplicable to this case, Karl's report omitted mention of another statute that has been much discussed as a possible focus of Fitzgerald's investigation -- the 1917 Espionage Act. Others have argued that the outing of Plame constituted a violation of that act, which prohibits the distribution of classified information to someone not authorized to receive it. That argument went unarticulated in Karl's segment.

Moreover, the focus on the IIPA in news reports such as ABC's, to the exclusion of other parts of the U.S. Code, lends support to a false claim made by several media figures that by investigating possible violations of other statutes, Fitzgerald is overstepping his mandate. Media Matters for America has debunked this claim (here and here).

From the October 17 broadcast of ABC News' World News Tonight, with anchor Elizabeth Vargas:

VARGAS: We're going to take "A Closer Look" tonight at the ongoing investigation into who leaked the name of a CIA operative working undercover. There's been a weekend of revelations about the case. Indictments could come as early as this week. And two powerful players at the White House could be caught in the crosshairs. They are the president's most important aide, Karl Rove, and the vice president's chief of staff, [I. Lewis] "Scooter" Libby. The investigation began after someone disclosed the identity of CIA officer Valerie Plame. Plame is married to a retired U.S. diplomat named Joe Wilson, who had been critical of the Bush administration's case for the war in Iraq. He says her name was leaked to discredit him. ABC's Jonathan Karl begins our "Closer Look" tonight.

KARL: When the investigation was first launched, it seemed a nearly impossible case to prosecute. First, reporters don't talk about confidential sources.

PRESIDENT BUSH (video clip): In all due respect to your profession, you do a very good job of protecting the leakers.

KARL: Second, the law that makes it a crime to reveal an undercover agent has almost never been enforced. The law's author says it sets a high bar.

TOENSING (video clip): The person revealing the information must absolutely know that the government is taking measures to protect this person's identity.

KARL: But when special prosecutor Patrick Fitzgerald threatened to jail reporters who did not testify, Time magazine's Matt Cooper revealed his source was Karl Rove. New York Times reporter Judith Miller went to jail for 85 days before finally revealing her source was "Scooter" Libby. Now, the reporters' testimony raises the possibility of additional charges:

• Perjury. If either Karl Rove or "Scooter" Libby denied talking about Wilson's wife to reporters, that could put them in direct conflict with the reporters who told the grand jury they did.
• Obstruction of justice. In a letter Libby wrote to Miller in jail, he told her, all other reporters had testified they did not discuss Ms. Plame's name or identity with him. Libby could face charges he was trying to influence her testimony.

And there's another possibility. Fitzgerald could end his investigation with no charges at all. Only Fitzgerald knows for sure, and he's not talking. Jonathan Karl, ABC News, Washington.