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.

Tuesday, November 29, 2005

Rove has the same problem which sunk Libby

In the multiple Plamegate articles in Time which were written or contributed to by Viveca Novak, there exist substantial clues as to the likely reason why Patrick Fitzgerald wants to depose her.

These articles strongly suggest that the topic which Fitzgerald is most interested in discussing with Novak is the same issue which led to Lewis Libby's indictment -- namely, whether Rove first learned of Plame's CIA employment from reporters (as he claimed) or whether, like Libby, he learned of it from governmental sources. Novak clearly discussed this issue numerous times with Rove lawyer Robert Luskin. And the Time articles themselves strongly suggest that it is this issue -- whether Rove lied about how he first learned about Plame's CIA employment -- which remains Rove's most pressing danger for being indicted as part of Fitzgerald's investigation.

Typically, when the potential of a perjury charge against Rove is discussed, the focus is on his initial failure to disclose to the Grand Jury his July, 2003 conversation with Time’s Matt Cooper. The issue there is simple enough: Rove claims that he simply forgot about the conversation until Luskin found an e-mail which reminded him of it, while a perjury charge would contend that Rove deliberately concealed the conversation from the Grand Jury.

The issue of Rove’s failure to remember his conversation with Cooper seems to be the issue which Luskin himself is trying to hype as Rove’s primary problem (perhaps because it's easy to dismiss away as being nothing more than a memory failure). Here is what Viveca Novak, likely prompted by Luskin, said about that issue in an October 24, 2005 article written with Mike Allen (subscription required):

Special counsel Patrick Fitzgerald appears to be seriously weighing a perjury charge for Rove's failure to tell grand jurors that he talked to TIME correspondent Matthew Cooper about Plame, according to a person close to Rove. Rove corrected himself in a later grand jury session. If charged with perjury, he will maintain he simply didn't recall the conversation with Cooper and told Fitzgerald as soon as he did.

But Rove's claim that he first learned about Plame's employment through reporters, although discussed far less, seems much more of a threat to him than the this mere failure to remember the Cooper conversation. This is the precise issue which lays at the heart of the Lewis Libby indictment, and at least part of the perjury charge that Fitzgerald is still clearly mulling against Rove almost certainly involves this same question – i.e., whether Rove, like Libby, lied to the Grand Jury when he claimed he first learned of Plame’s CIA employment only from reporters.

This issue appears over and over again in Time articles which Novak either wrote or to which she contributed reporting (the latter circumstance occurring when the focus of the article was principally about some other Plamegate issue, but also contained quotes or information expressly attributed to, or almost certainly obtained anonymously from, Luskin). Clearly, Novak was discussing with Luskin over this period of time the issue of how Rove learned of Plame’s CIA identity – surely a focus of Fitzgerald’s perjury contemplations.

An August 8, 2005 Time article by Massimo Calabresi (with Novak credited as having contributed reporting) says this:

As the investigation tightens into the leak of the identity of covert CIA operative Valerie Plame, sources tell TIME some White House officials may have learned she was married to former ambassador Joseph Wilson weeks before his July 6, 2003, Op-Ed piece criticizing the Administration.

That prospect increases the chances that White House official Karl Rove and others learned about Plame from within the Administration rather than from media contacts. Rove has told investigators he believes he learned of her directly or indirectly from reporters, according to his lawyer.

And here is a July 25, 2005 article by Nancy Gibbs, for which Novak is again credited as having contributed reporting. The primary thrust of the article is Gibbs’ interview with Plame and Wilson at their home, but it also contains very interesting information and claims about Rove’s defenses, some of which is attributed to Luskin and some of which appears to have come on background from Luskin via Novak:

And all the while, Rove's defenders were artfully pivoting from saying he hadn't done anything to saying he hadn't done anything wrong, that Plame wasn't really a secret agent anyway, or if she was, Rove didn't know that, or if he did, he only brought her up because he was trying to keep reporters from writing a bad story based on Wilson's false charges, and besides, it was a reporter who blew Plame's cover to him in the first place and not the other way around.

Rove had long insisted that he didn't know Valerie Plame's name or leak it and was cooperating fully with the probe. By last week, that denial had come to seem Clintonian in its legal precision. It's true Rove didn't tell Cooper her name but rather referred to her as Wilson's wife. On the other hand, a simple Google search of Ambassador Wilson turned up her name but not her affiliation. The evolving explanation of Rove's role was enough to let Democrats dream that they might have snared him at long last, while Republicans retorted that, far from incriminating Rove, the latest evidence exonerated him

According to sources close to the investigation, Fitzgerald seemed most interested in whether officials who stayed at the White House while the President was in Africa also had the memo that week, when the first known calls to reporters took place. Details of the memo, if not the memo itself, may have been shared with one or more White House officials well before Wilson's article appeared. Rove and I. Lewis (Scooter) Libby, Vice President Dick Cheney's chief of staff, have told prosecutors they had never seen the document, according to sources familiar with their statements.

But Rove had learned Plame's identity from someone: a source who has been briefed on Rove's account to Fitzgerald, says Novak called Rove the next day, July 8, and mentioned to him that Wilson's wife worked at the CIA. According to the source, Rove replied, "I've heard that too," and told Fitzgerald that he had heard it from a reporter--or perhaps from someone else in the Administration who said he got it from a reporter--Rove just couldn't be certain or remember which one.

The same article recognizes that the central issue for Rove is how he learned about Plame’s CIA employment:

What does it matter who put Plame's identity in play? That reporters may have been part of a loop of information, not just receivers of it, has for some time been one of the hypotheses in the case. The Washington Post reported that Libby, who has been interviewed by the grand jury three times, learned Plame's name from a reporter too. NBC News Washington bureau chief Tim Russert spoke with Fitzgerald under oath in August about a call from Libby, who gave Russert clearance to testify about their talk. Russert says he told Fitzgerald that he was not Libby's source.

From legal and political angles, it looks better if Administration officials were leakees, not leakers. If the blame for blowing the cover of a CIA officer can be spread around, so much the better. And it suggests the challenge that Fitzgerald may face in building a case. It is one thing if Rove happened to hear from a reporter that Plame was a CIA officer, casually confirmed that he had already heard that to another reporter (Novak) and incidentally spread the word to a third (Cooper). It's perhaps something else if Administration officials made an effort to gather information on Wilson, discovered that his wife was a CIA officer and carried out a strategy to discredit Wilson that included outing his wife to a number of reporters. It is still another thing to do the second and pretend, under oath, that you had done the first.

As the Libby Indictment demonstrates, Fitzgerald has long focused on the question of how White House officials first learned of Plame’s CIA employment. He obviously concluded that Libby lied about this very issue when Libby testified that he first learned of it from reporters (or that he thought he had when he spoke with reporters in June and July). Fitzgerald's Grand Jury indicted Libby based on the numerous and documented ways that Libby learned of Plame’s CIA employment from government channels long before he ever spoke to any reporter about Plame.

Is it any more believable that Rove – who hardly fits the role of an uninformed outsider kept in the dark and having to wait around for reporters to tell him something about a White House enemy – never caught wind of Plame’s CIA employment during the multiple sessions which enabled Libby to learn about that employment? At the very least, Fitzgerald has to be monumentally skeptical of Rove’s claims in this regard, and – according to the Time articles – he has been.

As is demonstrated by the now famous and not-very-cryptic reference to "Official A" in Paragraph 21 of Libby’s Indictment, Rove and Libby did discuss Plame’s CIA employment prior to the publication of Novak’s article. Fitzgerald must be very interested in trying to find out whether Rove learned of that employment from any of the numerous government sources which Libby used to find out this information, or from Libby himself.

These facts seem to suggest quite strongly that the most likely topic causing Fitzgerald to want to speak with Novak is the question of how and why Rove learned about Plame’s CIA involvement. Novak plainly had multiple conversations with Luskin about that topic, and it is almost certainly be at the forefront of any ongoing interest Fitzgerald has in perjury charges against Rove.

None of this explains why Fitzgerald waited until now to explore Luskin’s conversations with Novak (it very well could be that Fitzgerald focused on Luskin’s conversations with Novak only when Luskin tried to use those conversations in some way as part of his desperate, eleventh-hour plea not to indict Rove), but it is hard to believe that Rove’s claims as to when he first learned of Plame’s CIA employment is not one of the main topics, if not the main topic, to be featured in Novak's imminent testimony before Fitzgerald.

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