Jason Leopold: The Case Against Karl Rove

Special Prosecutor Patrick Fitzgerald met with the second grand jury investigating the leak of covert CIA agent Valerie Plame Wilson for several hours Friday. Unless Rove's attorney intervenes at the 11th hour yet again, Fitzgerald is expected to ask the grand jury to indict Rove - at the very least - for making false statements to the FBI and Justice Department investigators in October 2003, lawyers close to the case say.

People close to Fitzgerald say the special prosecutor has long believed that Rove's story concerning his role in the Plame case, as well as what he knew and when he knew it, is filled with holes. One thing Fitzgerald has been struggling with for months now, these people say, is whether to believe Rove hid or destroyed evidence that would have incriminated him and proven that he was a source for at least two reporters who unmasked Plame Wilson's identity and covert status, lawyers close to the case said.

Fitzgerald's suspicions about the possibility of evidence destruction arose just a few weeks after he took over the probe in early 2004. By then, he had already believed Rove and Vice President Dick Cheney's then-chief of staff I. Lewis "Scooter" Libby - who was indicted on five counts of perjury and obstruction of justice as a result of his failure to disclose to the first grand jury his true role in the Plame Wilson leak - were hindering his investigation, lawyers close to the case said.

His suspicions may have been right: An email Rove sent to then-Deputy National Security Adviser Stephen Hadley in early July 2003 later proved Rove had spoken to Time magazine reporter Matthew Cooper about Plame - a fact that Rove omitted when he was first interviewed by the FBI and during his first grand jury testimony in February 2004.

So, in late January 2004, Fitzgerald sent a letter to his boss, then-acting-Attorney General James Comey, seeking confirmation that he had the authority to investigate and prosecute individuals for additional crimes, including obstruction of justice, perjury and destroying evidence. The leak investigation had been centered up to that point on an obscure law making it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.

Comey responded to Fitzgerald in writing on February 6, 2004, confirming that Fitzgerald had the authority to prosecute those crimes, including "perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."

The same day Fitzgerald received the response letter from Comey, the White House faced a deadline of turning over administration contacts with 25 journalists to the grand jury investigating the leak. One of the journalists cited in the subpoena was Cooper, who had been called to the White House on January 22, 2004. Three months earlier, in late 2003, then-White House counsel Alberto Gonzales enjoined all White House staff to turn over any communication about Valerie Plame Wilson and her husband, former ambassador, Joseph Wilson, a vocal critic of the Iraq war who accused the Bush administration of twisting pre-war Iraq intelligence. Gonzales's directive came 12 hours after senior White House officials had been told of the pending investigation. The email Rove sent to Hadley, which specifically cited "Matt Cooper from Time," never turned up in that initial request either, people close to the investigation said.

It's unknown whether Hadley, who was also required to comply with the subpoena and the Gonzales order, turned over the email to Fitzgerald or to Justice Department and FBI investigators some three months earlier. If he did, Fitzgerald knew of its existence all along even while Rove, for nearly a year, was not being forthcoming with Fitzgerald or the grand jury. If, in addition to Rove, Hadley also failed to locate and turn over the email, it raises more questions about his own role in the matter. Hadley was interviewed by investigators to determine if he was involved in the leak, but has so far not entertained questions about his role, if any.

Besides Cooper, other journalists cited in the January 22, 2004 subpoena include: Robert Novak, who was first to publish Plame Wilson's name and undercover CIA status in his column, and who counted Rove as one of his two anonymous sources regarding Plame Wilson; Knut Royce and Timothy M. Phelps from Newsday; Walter Pincus, Richard Leiby, Mike Allen, Dana Priest and Glenn Kessler from The Washington Post; John Dickerson, Massimo Calabresi, Michael Duffy and James Carney from Time magazine; Evan Thomas from Newsweek; Andrea Mitchell from NBC’s "Meet the Press;" Chris Matthews from MSNBC’s "Hardball;" Tim Russert and Campbell Brown from NBC; Nicholas D. Kristof, David E. Sanger and Judith Miller from The New York Times; Greg Hitt and Paul Gigot from The Wall Street Journal; John Solomon from The Associated Press; and Jeff Gannon from Talon News.

Neither Hadley nor Rove's attorney, Robert Luskin, responded to repeated requests for comment.

The weeks leading up to Rove's February 2004 grand jury testimony - the time frame when Fitzgerald became increasingly concerned about officials possibly trying to obstruct his probe - has turned out to be crucial for Rove, and may be the deciding factor in whether or not he is indicted, lawyers close to the case said.

When Rove testified before Fitzgerald's grand jury that month he did not reveal that he had been a source for Cooper and Robert Novak, both of whom wrote stories on Plame Wilson on July 14, and July 17, 2003, respectively. Instead, Rove said he had shared information about Plame Wilson with other journalists - including Chris Matthews, the host of MSNBC's “Hardball” - but only after her name had appeared in Novak's column, people familiar with his grand jury testimony said.

In a bid to keep Rove out of Fitzgerald's crosshairs, Robert Luskin, Rove's attorney, stepped up recently and told Fitzgerald that Rove had truly forgotten about his conversation with Cooper, but Luskin jogged his memory thanks to a tip he says he received from Cooper's Time colleague, Viveca Novak (no relation to the conservative columnist Robert Novak). Hours before Libby's indictment in October, Luskin told Fitzgerald that he had gone for drinks with Novak in February 2004 - to be exact - and she had inadvertently revealed that the buzz inside Time magazine was that Rove had been a source for Matt Cooper's story on Plame Wilson.

Luskin told Fitzgerald that Novak's tip prompted him and Rove to conduct an exhaustive search for documentary evidence to determine if Rove had spoken with Cooper. That's when the Hadley email was found, which Luskin said he promptly turned over to Fitzgerald, and which led Rove to change his testimony and disclose that he did speak with Cooper. Luskin won't say exactly when he turned that email over, or why it took Rove until October 15, 2004 to testify about his conversation with Cooper.

Luskin's story forced Fitzgerald to depose him on December 2, 2004. He testified under oath that he had gone for drinks with Novak in late January or early February 2004, the very month in which Fitzgerald had sought the authority to prosecute officials if they were found to have hindered his investigation into the leak.

Novak, however, who testified a week later, has a different story. She testified that she met Luskin in either March or May 2004, lawyers close to the case said. This discrepancy is at the crux of what Fitzgerald is investigating.

According to those familiar with the case, in February 2004 Fitzgerald had already obtained the cooperation of a key witness, former-Deputy National Security Adviser for Vice President Dick Cheney, John Hannah. Hannah agreed to cooperate with Fitzgerald when the special prosecutor uncovered evidence tying him to the leak, and subsequently threatened to indict him, the sources said.

Hannah gave Fitzgerald the names of some White House officials who knew about Plame Wilson and disseminated her CIA status to reporters and other White House officials, the lawyers said. One of the officials Hannah appears to have implicated was Rove, they added. Cheney promoted Hannah to be his assistant national security adviser following Libby's indictment.

Rove failed to tell investigators at the time that he had spoken about Plame to Time Magazine reporter Matthew Cooper and conservative columnist Robert Novak, both of whom later cooperated in the case. Novak outed Plame in a July 14, 2003 column.

The Chicago prosecutor briefed the second grand jury investigating the outing last week for more than three hours. During that time, he brought them up to speed on the latest developments involving Rove and at least one other White House official, the sources said. The attorneys refused to identify the second person.

As of Friday, neither Rove nor Luskin had explained Rove's misstatements to Fitzgerald's satisfaction, those familiar with the case said. The 11th-hour testimony from Viveca Novak - who Luskin pointed to as a crucial witness in keeping his client out of court - does not appear to have been helpful to Rove in dodging an indictment, they added.

Rove's alleged failure to disclose his conversations with Cooper and Novak, and the fact that he did not produce the email he sent to Hadley on two separate occasions, are the reasons he's been in Fitzgerald's crosshairs, lawyers close to the investigation said.

It may also explain why Luskin has insisted that the conversation he had with Novak took place in February, as opposed to March or May, the timeframe Novak claims is more likely. It's much more difficult to make the case that the Hadley email surfaced after Luskin and Rove did a search in March or May if Luskin happened to agree with Novak's timeframe of the meeting but Rove failed to produce the same email under the grand jury subpoena three months earlier.

Luskin has said that he found the email at the same time the White House was complying with the subpoena, but held onto it rather than turning it over to the grand jury with the batch of other similar emails, phone logs and other documents as required by the subpoena, lawyers close to the case said.

"What Luskin is doing is trying to say that he found the email after his conversation with Ms. Novak but before the White House turned over evidence of administration contacts with journalists," by the February 6, 2004 deadline, one attorney close to the case said. "He understands that it would be quite difficult to explain to the prosecutor how this email miraculously turned up in either March or May, but not in February. That's why it appears he is stating that he spoke with Ms. Novak in February."

Before Luskin brought Novak into the picture, Rove had faced the prospect of being indicted on numerous counts, including obstruction of justice, perjury and making false statements for failing to disclose his conversations with reporters about Plame Wilson, sources close to the case said. Several reporters close to Novak said they believe Luskin's decision to draw her into the case was made to keep Rove's indictment from being handed up the day Libby was charged.

Rove could be indicted on those counts if Fitzgerald determines that Novak's testimony did not go far enough in clearing up questions about why Rove did not tell investigators about his conversations with other reporters.

Her testimony could still end up shielding Rove from more serious charges, attorneys close to the case said, if Fitzgerald believes it clears up the murky questions about the reasons as to why Rove could not produce the Hadley email under the October 2003 Gonzales order or by the February 6, 2004 deadline, as stated in the grand jury subpoena delivered to the White House two weeks earlier.

Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak invesigation, and will be a regular contributer to t r u t h o u t.

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