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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.

Saturday, December 03, 2005

Inconsistencies in the "Novak-saved-Rove" theory

As revealing and disgusting as it is to learn that Time reporter Viveca Novak was passing along supposedly confidential information to her friend, Karl Rove’s lawyer, at the same time that she was covering the Plamegate story for Time (without ever revealing her friendship or her actions), the effort to suggest that Novak may have saved Rove from a perjury charge with her actions makes little sense.

Jane at Firedoglake makes this case by quoting from a Media Matters statement as follows:

Whether Rove is guilty of intentionally hiding his conversation with Cooper, Viveca Novak undoubtedly aided Rove's defense by telling his lawyer that inaccuracies in Rove's testimony would likely become apparent to Fitzgerald.

[JANE]: They will most certainly have to invent some new circle of hell just for her if it turns out Rover skates because of her actions.


The idea here is that Rove originally concealed from the FBI and the Grand Jury the fact that he told Time's Matt Cooper about Plame. Once Cooper was subpoenaed and would testify, Novak told Luskin that Cooper would testify about this conversation, and that enabled Rove to run back to the GJ and recant his prior testimony by disclosing his conversation with Cooper. And this is what will enable Rove to avoid a perjury charge, which means that it is Novak's conversation with Luskin which saved Rove.

This theory, though, at once assumes two inconsistent facts: namely, (1) that Rove did remember his conversation with Cooper when he testified before the Grand Jury (and therefore committed perjury), but also (2) Rove only realized that Cooper would identify him as his source once he learned about that from Viveca Novak’s conversation with Luskin.

But if Rove committed perjury, it means that he knew himself that once Cooper testified, Cooper would identify Rove as his source; he didn’t need Novak to tell him that. Alternatively, if Rove really didn’t remember his conversation with Cooper, and only remembered it once Novak told Luskin (as Luskin seems to be claiming), then Rove didn’t commit perjury.

Either way, Novak’s relaying to Luskin that Cooper would identify Rove as his source could not have been what helped Rove escape a perjury charge. That's because to believe that Rove committed perjury assumes that he already knew what Novak told Luskin (that Cooper would identify Rove as his source). If he didn't remember this fact until Novak told Luskin, then he didn't commit perjury.

Put another way:

Once Cooper was subpoenaed and it became apparent that he would testify, there are only two possibilities for Rove’s state of awareness about the implications of Cooper’s testimony:

(1) Rove did not realize that he would be in trouble as a result of Cooper’s testimony because he did not recall that he spoken to Cooper about Plame; he realized this only once Novak told Luskin that Cooper would testify that Rove was his source on Plame; or

(2) Rove did realize that he would be in trouble as a result of Cooper’s testimony, because he did recall that he told Cooper about Plame, in which case Novak told him nothing new.

Either way, Novak’s telling Luskin that Cooper would identify Rove as his Plame source could not possibly have helped Rove escape a perjury charge. Either (a) Novak’s information was news to Rove, because he hadn’t remembered his conversation with Cooper until then (in which case he didn’t commit perjury, and ran to the Grand Jury to add the Cooper conversation only once he was reminded by Novak’s conversation with Luskin) or (b) Novak’s information was not news to Rove, because he did remember the Cooper conversation but deliberately concealed it from the Grand Jury, thinking Cooper wouldn’t testify (in which case Rove did commit perjury, but would have known on his own that Cooper would testify about this conversation if he ever testified, and nothing Novak said would have been news to him in this regard).

(Theoretically, there is a third possibility: that Rove remembered his conversation with Cooper, but counted on Cooper's not testifying about it when he finally was forced to testify before the GJ, either because he thought Cooper wouldn't have remembered it or would have concealed it, such that when Novak told Luskin that Cooper would testify about it, that was news to Rove. But it seems highly unlikely, to put it mildly, that Rove was banking on Cooper not remembering or concealing the conversation when he testified).

The scenario painted by Jane and those seeking to suggest that Novak "saved" Rove from a perjury charge by alerting Luskin to Cooper’s likely testimony makes no logical sense. Rove either already remembered the Cooper conversation (in which Novak told him nothing he didn't already know) or he didn't remember it until Novak reminded him (in which case he didn't commit perjury).

Either way, it cannot be the case that Novak saved Rove from a perjury charge by telling Luskin about what Cooper would testify to regarding Rove.

It is possible that Novak's conversation with Luskin helped Rove in the sense that it provided him a pretext as to why he ran back to the GJ once it became apparent that Cooper would testify. It enables Rove to claim (as he is apparently claiming) that what prompted him to return to the GJ was not the fact that he realized he was going to get caught in his perjury once Fitzgerald forced Cooper to testify, but rather, that he had not remembered the Cooper conversation until Novak told Luskin about it. In the absence of the Novak talk with Luskin, Rove would have a difficult time finding an innocuous explanation as to why he suddenly remembered the Cooper conversation only once it became clear that Cooper really would have to testify.

So while Novak's conversation with Luskin may have given Rove a pretext he needed to cast his recantation in an innocent light, it cannot be the case that Novak told Rove something he didn't already know (unless, that is, Rove really had forgotten about his conversation with Cooper until Novak told Luskin about it).

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