I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, November 28, 2005

Fitzgerald's likely pressure on Robert Luskin

In light of the rather unjournalistic silence by Time and Viveca Novak regarding the circumstances surrounding Novak's agreement to testify before Patrick Fitzgerlad about her conversations with Rove lawyer Robert Luskin, all one can do is speculate as to how and why she agreed to testify. (UPDATE: Substantially more advanced and documented speculation, arising from an exhaustive review of Novak's Plamegate articles in Time, is found here).

Tom Maguire wonders whether Time and Novak are simply violating their confidentiality pledge to Luskin, leading him to ask: “Does TIME Magazine still protect their sources?”

More charitably, he speculates that the oddly rapid agreement by Time and Novak to comply with Fitzgerald’s request suggests that perhaps Fitzgerald is interested only in what Novak told Luskin (which would not be covered by any confidentiality obligation), rather than what Luskin told Novak. Jeralyn at Talk Left suggests the same: “Perhaps Fitzgerald wants to know what Novak told Luskin about Time and Cooper's intentions and the substance of Cooper's conversations with Rove -- as opposed to merely what Luskin told Novak.”

Even if one assumes that Luskin spoke to Novak under an anonymous source agreement (something that is not clear at all since, as Maguire notes, Luskin spoke on the record to Novak), speculation that Novak is testifying only by burning her source or that Fitzgerald is interested only in Novak’s statements to Luskin (but not in Luskin's responses), seems misplaced.

If Novak had pledged confidentiality to Luskin with respect to the conversations Fitzgerald wants to know about, it seems extremely likely that Fitzgerald would simply have asked Luskin to release Novak from any such pledges -- just as Luskin's client did with Matt Cooper and Lewis Libby finally did with Judy Miller. And, under the circumstances, isn't it virtually certain that in response to such a request from Fitzgerald, Luskin would have agreed to do so almost immediately?

With Rove's fate still hanging in the balance, and with that fate still resting firmly in Fitzgerald’s palm, the last thing Luskin would want to do is appear to be obstructing Fitzgerald’s investigation by single-handedly preventing Fitzgerald from learning what he wants to know from Novak.

It is worth remembering that Fitzgerald previously "encouraged" Libby to release Judy Miller from her confidentiality obligations in his September 12, 2005 letter to Libby’s counsel to Libby’s counsel, Joseph Tate. If Fitzgerald wanted to know about Luskin’s conversations with Novak, and Novak told Fitzgerald that she couldn’t disclose the content of those conversations unless Luskin agreed, it would be highly surprising if Fitzgerald did not put the same pressure on Luskin that he put on Libby to release the journalist from her confidentiality obligation.

And it would be even more surprising if Luskin, faced with a such a request from Fitzgerald, did anything but immediately and fully comply.

After all, Luskin has long recognized the basic principle that whatever else he does, he should not make Fitzgerald think that he is impeding the investigation. Here is National Review’s Byron York recounting a converation back in July with Luskin in which Luskin emphasized the paramounce of cooperating with Fitzgerald:

During a conversation with Robert Luskin, Karl Rove's lawyer, last July, Luskin said, "Rule number one is cooperate with Fitzgerald, and there is no rule number two." It was a standard defense attorney line; the last thing one would want to do is to alienate Patrick Fitzgerald, the prosecutor who controls every aspect of the CIA leak investigation.

And, independent of the desire to protect Rove’s interests by cooperating with Fitzgerald, it is possible that Luskin himself could have some legal exposure of his own. If, as Redd Hedd and Emptywheel have both speculated, Luskin said things to Novak which prove that Rove not only was making false statements to the Grand Jury, but knew that they were false at the time, wouldn't that put Luskin in jeopardy as well? The attorney-client privilege does not permit a lawyer to suborn his client's perjury -- which is exactly what may have occurred if Luskin said things to Novak which proved that Rove's Grand Jury testimony (of which Luskin was obviously aware) was knowingly false.

All of this is to suggest that it is impossible to imagine Luskin enforcing Novak’s confidentiality obligation in the face of Fitzgerald's request that he release her from that obligation. Given what is known about Fitzgerald's investigative practices and Luskin's recognized imperative to cooperate, the most likely scenario accounting for Novak's testimony seems to be that Luskin released Novak from her confidentiality obligation, and did so quite quickly, after receiving a request from Fitzgerald that he do so.

At the very least, that scenario seems much more plausible than Novak whimsically violating her confidentiality commitment to Luskin. And Luskin's release of Novak also seems far more likely than imagining that Fitzgerald would be interested only in learning about Novak's statements to Luskin, but not Luskin's statements to Novak, and, even more implausibly, that Fitzgerald would agree in advance to restrict his questioning to Novak’s side of that conversation.

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