This is a partial transcript of Special Report with Brit Hume, October 2, that has been edited for clarity.
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SEN. CHARLES SCHUMER (D-NY), JUDICIARY CMTE: The bottom line is that the attorney general is so inextricably locked up with the people he's investigating he can't do a fair job. It's basically impossible.
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BRIT HUME, HOST: That was New York Democratic Senator Charles Schumer (search) today on why he thinks the attorney general must recuse himself from any role in the alleged administration leak of the identity of a CIA employee, said to be an undercover operator. Disclosure of such information can be illegal, but is it clear that's what was happening here? Was there a crime?
For answers we turn to our favorite law Professor Jonathan Turley (search) of George Washington University.
JONATHAN TURLEY, PROFESSOR, GEORGE WASHINGTON UNIV.: Thank you, Brit.
HUME: So what would have to proven for someone to be successfully prosecuted in this investigation under the statute that involves the identification of an undercover CIA person?
TURLEY: Well, first of all, this statute may be the least used criminal provision in the history of this country. It was introduced for a specific purpose. It is threatened a lot, but you can't find cases brought under it. And what you have to do is you've got to show that somebody intentionally disclosed the identity of a covert operative, a CIA operative. So, they have to have knowledge that the person was...
HUME: Yes. They had to have knowledge from classified information, correct?
TURLEY: That's right. So they had to have access...
HUME: And they have to be someone who actually has legal access to the information, right?
TURLEY: That's right. And so...
HUME: So, you have to be a person with access to classified information who discloses a name knowing what? Knowing what?
TURLEY: Knowing that it would reveal an undercover agent; someone who is under a CIA cover. And so there's a number of elements...
HUME: But what other intent would you have to have? Would you have to have the intent to blow the person's cover?
TURLEY: Well, you have to have, first of all, the intent to disclose and you have to have knowledge that the person is, in fact, undercover. And you have to have knowledge that the information you're giving would reveal the identity of that person. And then finally, you have to know that the CIA has taken efforts to conceal that identity. So those are a lot of different elements.
But the biggest problem in this case, Brit, is that whatever conversations occurred between people like Novak and others, none of the participants are likely to confirm the content of those conversations.
HUME: Just to sum up, Robert Novak (search) is a journalist in Washington who wrote a column in which he quoted an unidentified senior administration official as saying that the wife of the former diplomat, who had written the report about whether Saddam was trying to get yellow cake uranium in the country of Niger in Africa, about the fact that the guy's wife was a CIA agent -- CIA person.
He reported that he'd been told that by a senior administration official. We don't know if it was a White House official or some other official. We don't even know very much more than that. So we would have to prove, then, that whoever told him that got it from classified sources and had access to that information.
HUME: And did it for the purpose of blowing her cover, right? And did it, what? For what other...
TURLEY: Well, that they knew that the disclosure would, in fact, reveal her identity and that the CIA had taken efforts to conceal the identity.
TURLEY: But the big problems in terms of a trial, in terms of a prosecution is that the prosecutors, unless they have the cooperation of one of the parties to the conversation, will have to prove circumstantially that this must have been said in the conversation because look what appeared in print. Well, that's very difficult. You know, they will have to show the article to the jury and say this person must have revealed to someone like Robert Novak the identity of this person. Well, that's -- that can be a conceptual leap for a jury.
HUME: Now, we've heard other people in town say -- Cliff May being one, who's a person around town who actually is a journalist and an activist, said that he knew this woman was a CIA agent and he heard it from someone outside of government. Does that mere fact that he knew that and others knew it undermine this case at all?
TURLEY: What undermines in a practical way but not in a legal way. That is it's still -- still, someone at the CIA or at the White House intentionally revealed the name of this agent. Whether or not it was known would still be a crime. It is also a crime to give classified information to an unauthorized person. That's a separate provision. And so you could be charged under either one of those things.
HUME: But if it was known all over town, wouldn't it be awfully hard to establish that it was done for the purpose of blowing cover?
TURLEY: Well, you know, the United States government has argued in the past that even if a secret was well-known -- I was on case as a counsel where they arranged even if the secret appears on the cover of The New York Times, it can still be the basis of a prosecution.
HUME: In your view, of the likelihood that this will ever come to trial in any way or come even to an indictment?
TURLEY: Well, you know, Brit, as you know, this city floats on a sea of leaks. It is the commodity by which people trade. But on the other hand, you also know, that when it gets this much attention, somebody tends to get torched. I mean there is a lot of attention here. And more importantly...
HUME: But when is the last time you saw somebody prosecuted for a leak?
TURLEY: Well, this -- I mean that's a very good point. And this provision is honored primarily in its breach, as is the authorized disclosure provision. The problem is that whoever did these leaks, there is a suggestion that there might have been more than one person, they're suggesting a potentially six different phone calls. That gives a broader circumstantial basis for investigation and charging. And so, I actually think that they may ultimately zero in on a small number of people.
HUME: And a likely successful prosecution?
TURLEY: I wouldn't bet on a successful prosecution, but a prosecution perhaps.
HUME: All right. Jonathan Turley, thank you.
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