NATIONAL JOURNAL: Libby Testimony Is Key To Rove Inquiry (11/12/2005)

By Murray Waas, special to National Journal
© National Journal Group Inc.
Saturday, Nov. 12, 2005

Special Prosecutor Patrick Fitzgerald delayed a decision on whether to seek criminal charges against Karl Rove in large part because he wants to determine whether Lewis (Scooter) Libby, the former chief of staff to Vice President Cheney, can provide information on Rove's role in the CIA leak case, according to attorneys involved in the investigation.

Even if Fitzgerald concludes in the near future that he does not have sufficient evidence to charge Rove, the special prosecutor would not rule out bringing charges at a later date and would not finish his inquiry on Rove until he hears whatever information Libby might provide -- either incriminating or exculpatory -- on Rove's role, the sources said.

On the last day of its two-year term, the federal grand jury in the leak case indicted Libby on five counts of making false statements, perjury, and obstruction of justice as part of an alleged effort to conceal his own role, and perhaps that of other Bush administration officials, in publicly disclosing the identity of CIA officer Valerie Plame.

Fitzgerald did not seek an indictment of Rove, opting to present any potential new evidence on the White House deputy chief of staff to a new grand jury. In recent days, Fitzgerald has reinterviewed several witnesses with knowledge of Rove's role in the Plame leak and talked with attorneys of other potential witnesses.

The ongoing investigation means that Rove's legal status is likely to remain up in the air until the final disposition of Libby's case. That could be two years from now, or even longer. Rove's predicament contradicts recent news accounts indicating that Fitzgerald will conclude his probe of Rove in the near future.

Rove and the White House had hoped that President Bush's most important political adviser was out of legal jeopardy when the Libby indictment was announced on October 28, and that the political fallout from the CIA leak scandal would recede with the expiration of the grand jury's term. That no longer appears to be the case.

Friends of Rove now bemoan that he will be under a cloud for the indefinite future, even though he might ultimately be cleared. "Karl's name has clearly been dragged through the mud," said Republican operative Grover Norquist. "But what happens if it turns out there is no there there? No one is going to devote one-hundredth of ink to his exoneration, if there is one."

But attorneys involved in the case, as well as outside legal experts, said that even in routine criminal investigations, defendants are not typically cleared of wrongdoing until the most important witnesses are heard from. They said that any prosecutor would be remiss to wrap up a case without hearing from all the key witnesses.

The difference between a routine criminal inquiry and a high-profile case, they said, is that the latter draws extraordinary media attention, perhaps unfairly tarnishing those later found to have done nothing wrong.

Rove's situation is further complicated by the length of time it might take for Fitzgerald to learn what Libby might have to say about Rove. At Libby's arraignment in federal court on November 4, his attorneys told the judge that it is almost certain that the litigation will be "protracted," not only on evidentiary matters but also on the use of classified information.

The next hearing in the case is scheduled for February 3, and a trial date won't be set for some time. If Libby is convicted, an appeal would surely further delay the outcome, perhaps for another year or more.

If Libby strikes a plea bargain, he would likely agree as part of any deal to provide information to prosecutors that had some bearing on Rove and other Bush administration officials, according to attorneys involved in the case. Even if no plea bargain occurs, a federal grand jury could compel Libby to testify about others under a grant of immunity. If he still refused to testify, Libby could then be jailed for civil contempt, or charged anew with criminal contempt or obstruction of justice.

Solomon L. Wisenberg, a former federal prosecutor and a deputy independent counsel in the Whitewater and Clinton-Lewinsky matters, said that Fitzgerald "would be remiss" not to learn all he can from Libby about the roles of Rove and other Bush administration officials, including Vice President Cheney.

"With someone like Libby, you are either going to make a deal, or try and convict them, and then put them before the grand jury to see what they know," Wisenberg said. "Clearly, any prosecutor wants to go as high as he can go. They are always looking for the whole unvarnished truth. And that means that they will also look laterally and even below."

During his press conference announcing Libby's indictment, Fitzgerald gave some insight into why he takes so long in making decisions on whether to charge someone. Asked why he went to great lengths to compel the testimony of reporters in the case, including New York Times reporter Judith Miller who spent 85 days in jail, Fitzgerald responded that the rights of potential defendants were paramount. He noted that the testimony of journalists might help bolster a case against someone, or might help clear that person.

The possibility that he might charge someone, only to learn later that one of the journalists who had declined to testify had information to clear the person, was something that "frightens me," Fitzgerald said. "I think the only way you can do an investigation like this is to hear all eyewitnesses."

Fitzgerald is currently focusing on whether Rove misled the FBI and the federal grand jury about his conversations regarding Plame with conservative columnist Robert Novak and Time magazine correspondent Matthew Cooper.

Rove and Novak discussed Plame on July 9, 2003. At the time, senior White House officials -- foremost among them Libby and Rove -- were attempting to discredit Plame's husband, retired Ambassador Joseph Wilson, who had alleged in an op-ed column and in press interviews that the Bush administration relied on faulty intelligence to bolster its case for war with Iraq.

Novak's July 14, 2003, column identified Plame as an "agency operative." It suggested that Wilson was not to be trusted because Plame had been instrumental in getting the CIA to send Wilson on a mission to Niger to check out allegations that Saddam Hussein's government was trying to buy weapons-grade uranium.

Rove has told investigators that while he served as a corroborating source for Novak, he knew very little about Plame at the time. Rove has told investigators that when he spoke to Novak, the columnist's information on Plame was more definitive and substantial than his own. Rove has said that he may have even learned more about Wilson and Plame from Novak than Novak learned from him, according to attorneys involved in the case.

Rove also testified to the grand jury that he might have first learned of Plame's identity from someone outside the White House, most probably a journalist. But Rove could not name the person or recall anything about their conversation. Nor could he say whether their conversation took place in person or over the telephone.

Later, Rove testified that it might have been Libby who told him that Plame worked for the CIA and that Plame played a role in her husband's selection for the CIA's Niger mission. But Rove also testified that Libby told him that he, Libby, learned that information from journalists, not from classified information or government officials.

Libby's indictment alleged that he committed perjury by testifying that he learned of Plame's CIA employment from NBC Washington Bureau Chief Tim Russert, and that Russert said such information about Plame was common knowledge among Washington journalists. Russert, however, testified to the grand jury that he had never told Libby about Plame.

Instead, the indictment charged that Libby had learned about Plame's CIA employment and her possible role in the Niger mission from four government officials, one of them being Vice President Cheney.

Rove testified to the grand jury that in discussing Plame with Novak and Cooper, he was simply repeating what he had heard from a journalist or from Libby. Rove said he believed that Libby, too, had only learned about Plame from journalists.

Sources close to Rove say that Libby very likely misled Rove when he told Rove that he had learned about Plame from journalists. Investigators also want to learn from Libby whether that's true, or whether Libby told Rove a different source for the Plame information -- specifically other government officials with access to highly classified information.

Also of interest to investigators is a Rove-Libby conversation that took place immediately after Rove's conversation with Novak on July 9, 2003.

The indictment states that on July 10 or 11, "Libby spoke to a senior official in the White House (Official A) who advised Libby of a conversation Official A had earlier that week with ... Novak, in which Wilson's wife was discussed as a CIA employee involved in Wilson's trip. Libby was advised by Official A that Novak would be writing a story about Wilson's wife."

Attorneys involved in the CIA leak case confirm that Official A refers to Rove.

Also central to Fitzgerald's investigation are allegations that Rove purposely misled the FBI in October 2003 and the federal grand jury in February 2004, when he failed to disclose a July 11, 2003, conversation with Cooper about Plame, according to sources knowledgeable about the matter.

Rove changed his grand jury testimony only after the discovery in the fall of 2004 of a July 11, 2003, White House e-mail from Rove to then-Deputy National Security Adviser Stephen Hadley indicating that Rove had indeed spoken to Cooper about Wilson's Niger mission. Fitzgerald has been investigating Rove's omissions as potential false statements, perjury, or obstruction of justice.

Rove has said that he did not tell the FBI or the grand jury about his conversations with Cooper because of a faulty memory, and that he voluntarily informed the special prosecutor of his conversations with Cooper as soon as his memory was cleared up.

So, is Fitzgerald's slow pace in completing his investigation of Rove an instance of prosecutorial zealousness, and is Rove being singled out because of his power and status?

Katy Harriger, a professor of political science at Wake Forest University, who has authored two books on special prosecutors, says that Fitzgerald's open-ended case on Rove is no different from what any ordinary prosecutor would do with any defendant. "It is fairly routine that you are not going to be clearing someone until you hear from a central witness, even if it means [that it takes you] two years to clear your other case before you hear them."

Norquist, who is close to Rove, says that because so many special prosecutors investigated Clinton administration officials -- many of whom were ultimately cleared of wrongdoing -- the public has become "desensitized" to such probes. "We have all learned that where there is smoke, there is not always a fire."

Stan Brand, a Washington defense lawyer who has specialized in representing clients in high-profile political cases and before special prosecutors, says that "while it is not a good thing for anyone to be hung out to dry during a criminal investigation," Fitzgerald has shown himself to be a prosecutor who "has come to the case with no predisposition and no political bent."

Regarding Rove, Brand said: "He is not being treated differently than anyone else. If you don't like the way the system works in this instance, you don't like it, period."

-- Murray Waas is a Washington-based journalist. Several of his previous stories for National Journal are also available online.