Monday :: Jul 4, 2005

Treasongate and Karl Rove (Part I)

by eriposte

Over the past few days, there's been a fair amount of blogosphere speculation on Karl Rove's role in Treasongate (the Valerie Plame expose); in the meantime, the Los Angeles Times and Newsweek have weighed in on this issue with comments from Rove's lawyer Robert Luskin. Now, we all know that Rove, based on his actions through his lifetime in politics, has more than earned the privilege of being "frog-marched" with handcuffs (on more than one occasion), but I fear that the speculation on Treasongate is getting a bit ahead of itself - so it's worth taking a step back to understand what is plausible and what isn't.

John at Americablog asked the following, first citing Murray Waas' article in The American Propect and then Newsweek (bold text is my emphasis):

Granted, this was a leaked version of what Rove said, but this is the key line, I think:

Rove insisted, he had only circulated information about Plame after it had appeared in Novak's column.

From Newsweek, we learn that might not be quite accurate:

But according to Luskin, Rove's lawyer, Rove spoke to Cooper three or four days before Novak's column appeared.

Actually, I read Isikoff's (not him again!) Newsweek article and found no evidence in that article that Rove had mentioned Plame or her identity to Cooper. Isikoff's article which leads with "...Time magazine talked to Bush's guru for Plame story" says (bold text is my emphasis):

"Some government officials have noted to Time in interviews... that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction," said Cooper's July 2003 Time online article.
[...] an interview with NEWSWEEK, Rove's lawyer, Robert Luskin, confirmed that Rove had been interviewed by Cooper for the article. It is unclear, however, what passed between Cooper and Rove.
Initially, Fitzgerald's focus was on Novak's sourcing, since Novak was the first to out Plame. But according to Luskin, Rove's lawyer, Rove spoke to Cooper three or four days before Novak's column appeared. Luskin told NEWSWEEK that Rove "never knowingly disclosed classified information" and that "he did not tell any reporter that Valerie Plame worked for the CIA." Luskin declined, however, to discuss any other details. He did say that Rove himself had testified before the grand jury "two or three times" and signed a waiver authorizing reporters to testify about their conversations with him. "He has answered every question that has been put to him about his conversations with Cooper and anybody else," Luskin said.

There is a lot to dissect in these cryptic remarks. For example, the part about "never knowingly disclosed classified information" is perhaps the most critical (I'll examine this in a follow-up post) and Isikoff's reproduction of this partial quote without the whole sentence makes its meaning highly ambiguous - considering that the context for such denials is far more important than the purported denial itself. But, it's worth pointing out that Rove's lawyer has stated that Rove denies telling ANY REPORTER that Valerie Plame worked for the CIA. This is a very strong statement. Now, we all know that Rove is a traitorous liar but we need to remember that his modus operandi is to try and commit unethical, illegal or criminal acts without getting caught. It would be extraordinarily stupid of Rove's lawyer to make such a stark statement unless he believes that his client is being truthful about this (which is not the same as saying that Rove is telling the truth - to his lawyer). However, considering that the prosecutor Patrick Fitzgerald is fully aware of Rove's statements to the grand jury and has full access to Cooper's notes, as well as to the statements from one or more other journalists about their conversations with Rove (e.g., Chris "Fair Game" Matthews to name just one), the preponderance of evidence suggests Rove may not have revealed Plame's CIA identity to Cooper. (This clearly says nothing about how Rove was indeed part of the Bush White House's coordinated efforts to discredit Wilson and knowingly or "unknowingly" or 'incidentally' expose Plame in a traitorous manner).

The question that Luskin's statements does raise, on the other hand, is the following. If, as Luskin says, Rove has signed a "waiver authorizing reporters to testify about their about their conversations with him," (Dave J has also pointed this out) then why would Matt Cooper refuse to testify to the grand jury? Well, for one thing, it may be because Cooper had more than one source for his article. But even if that were to be the case, why would he not testify to the grand jury about conversations he had with Karl Rove? This is puzzling to me. (Perhaps some lawyer-readers/bloggers could comment?)

A second point. Some bloggers have approvingly linked to Lawrence O'Donnell's comments at The Huffington Post:

Luskin claimed that the prosecutor “asked us not to talk about what Karl has had to say.” This is highly unlikely. Prosecutors have absolutely no control over what witnesses say when they leave the grand jury room. Rove can tell us word-for-word what he said to the grand jury and would if he thought it would help him. And notice that Luskin just did reveal part of Rove’s grand jury testimony, the fact that he had a conversation with Cooper. Rove would not let me get one day of traction on this story if he could stop me. If what I have reported is not true, if Karl Rove is not Matt Cooper’s source, Rove could prove that instantly by telling us what he told the grand jury. Nothing prevents him from doing that, except a good lawyer who is trying to keep him out of jail.

Well, this is not as black and white as O'Donnell makes it out to be. As investigative reporter Murray Waas (one of those who exposed the anti-Clinton machine in the 1990s and who's covered Treasongate for The American Prospect) points out in a critical post (about Isikoff's article) on his blog: other journalists who have regularly covered this story can tell you, Fitzgerald has asked witnesses to his inquiry-- and their attorneys-- not to publicly disclose what they have told the FBI, or what they testified to before the federal grand jury. That is because Fitzgerald, like many prosecutors, doesn't want one witness to know what another has said to his investigators so they can devise a cover story. That is how coverups succeed, and crimes go unpunished.

Luskin, himself a former federal prosecutor, told me: "They [the prosecutors] have wanted their witnesses in a pigeon-hole. They have asked us to say as little as possible so we would not impede them."

So, O'Donnell is partly right that the prosecutor has no "control" over what witnesses reveal about their testimony to others, but it doesn't mean that witnesses can decide to freely talk about all of their testimony, especially in such a high-profile case involving high crimes by the Bush administration. No doubt Luskin is likely to be self-serving in his comments to the press, but it also appears likely that he is releasing information that would prevent potentially baseless speculation about what his client did, while not being the kind of information that would publicly reveal what Rove said to the grand jury about the role played by others or Rove on other aspects of the Plame expose/investigation. The point is that one could think of reasons for Luskin's or Rove's reticence to say more -- but neither O'Donnell nor I can be sure that is motivated out of a concern for the prosecution or for Rove.

Now, there's yet another aspect about Rove's involvement that Murray Waas has scolded Isikoff about:

Rove's attorney, Luskin, for example, told me earlier this morning that he has been assured by special prosecutor Fitzgerald that Rove has not been a target of his grand jury investigation: "We have been assured consistently that Karl is not a target of the inquiry." Luskin said that the last such assurance from Fitzgerald's office was "within the last several days."

Luskin also told me that he informed Isikoff of much the same thing, but that Isikoff did not see fit to report his comments in his story.

However, it appears Waas - while getting it partly right - may have been a bit "bamboozled" by Luskin's comment (Atrios has commented similarly about a WaPo piece). As Daily Kos diaryist redfed notes:

First, Luskin claims that Fitzgerald told him that Rove was not a "target" of the investigation. In the context of a federal criminal investigation, a target is a term of art used very carefully by federal prosecutors and reserved only for those involved in an investigation that the prosecutor presently deems a "putative" defendant. It does not mean, as Luskin would have us believe, that his client is out of the woods (and he surely knows better).

Here is the official DOJ definition: "A 'target' is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." There are two other categories of persons in a grand jury investigation: "subjects" and "witnesses." A subject is someone who falls within the scope of the grand jury's investigation and may very well have criminal exposure, but the prosecutor cannot yet conclude that the person is a target. A witness is someone who the prosecutor is ready to rule out as a subject or target. It is CRITICAL that Fitzgerald apparently did not say that Rove was not a target OR a subject. If Rove was truly in the clear, Fitzgerald would have said so and designated him as a witness (and Luskin would surely have told us). This means that Rove is a subject of the investigation and could soon become a target depending on the information contained in Time's documents.

I hope to look at some more of Luskin's comments and this case in a follow-up post.


eriposte :: 10:01 AM :: Comments (19) :: TrackBack (0) :: Digg It!