The Case Against Rove

It appears that Karl Rove's legal troubles center around his July 11, 2003 conversation with Matthew Cooper of TIME magazine, and an email he sent to Stephen Hadley the same day describing that conversation. In a prior post, I laid out what I thought was the probable scenario for the discovery of the Rove-Hadley email. But today's New York Times story calls at least the timeline of my account into question, and in a way that is not at all helpful to Karl Rove.
We knew before that--while the Hadley email was clearly responsive to the initial set of DOJ document requests issued to the White House in the Fall of 2003--it was not turned over until sometime in 2004. The explanation provided for this delay by "one of the lawyers familiar with Rove's account" (via Isikoff) was that the search terms used to locate responsive emails did not pick this particular email up. I observed that this explanation was not implausible given that the email did not contain the most obvious search terms (e.g. "Wilson," "Plame," or "Novak") and, at the time, investigators did not appear to be focused on Matthew Cooper. When Fitzgerald took over the case in January 2004, however, he issued more focused subpoenas, including one that specifically named Cooper. I speculated that the Hadley email was discovered during the process of complying with these subpoenas, i.e. in early 2004.

Apparently, I was wrong. Citing "a lawyer with a client in the case," the Times reports that the Rove-Hadley email "was not discovered until the fall of 2004." That's awfully late in the game to be turning over a document that is so clearly responsive to multiple subpoenas and document requests. What's the new excuse for this delay? According to the Times:

It is not publicly known why Mr. Rove's e-mail
message to Mr. Hadley was not turned over
earlier, but a lawyer in the case said that
White House documents were collected in
response to several separate requests that
may not have covered certain time periods
or all relevant officials. Mr. Rove had no role
in the search for documents, which was
carried out by an administrative office in the
White House.

This lawyer is almost surely Luskin, and his explanation is preposterous. First, the email was unquestionably responsive to the original DOJ document request (see here, in the update section). Second, the email is responsive to at least three separate sections of Fitzgerald's January 2004 subpoenas. From Newsday (via JustOneMinute), we know that those subpoenas called for, among other things:

1) All documents from February 1, 2002 through 2003 related to Wilson's Niger trip, to Plame, or to contacts with journalists.

2) All documents from July 6 and July 21 of the White House Iraq Group (of which both Hadley and Rove were members).

3) All documents relating to conversations with Matthew Cooper of TIME Magazine.

Rove's email to Hadley was dated July 11, 2003, just three days before Novak published his column, and it specifically referenced Niger, Matthew Cooper, and TIME Magazine. There is simply no way that the failure to turn over that email in a timely matter can be attributable to a lack of specificity in the requests themselves. There is no way that the dates of the requests did not include July 11. Moreover, if White House email was searched using search terms, as Isikoff's source suggested, "Cooper" would have to have been one of those terms. It's possible, of course, that the email was innocently overlooked during the White House's effort to comply with these requests, but it's entirely ridiculous to assert that the prosecutors in this case did not draft their document requests with enough specificity to capture this key email. If I were Fitzgerald, that blind quote in today's Times article would really make me mad.

So we know that the Hadley email was responsive to multiple document requests and should have been turned over in early 2004. But perhaps even more significantly, we now know that the email was not turned over until after Matthew Cooper had been subpoenaed and deposed. Back in July, the Washington Post reported the following:

Lawyers involved in the case said there are
now indications that Fitzgerald did not
initially know or suspect that Rove was
Cooper's primary source for the reporter's
information about Plame. . . .

Cooper and his attorneys were surprised that
Fitzgerald agreed to ask Cooper questions
only about his conversations with Libby,
sources familiar with the investigation said.
The sources said Fitzgerald looked surprised
in the August 2004 deposition when Cooper
said it was he who brought up Wilson's wife
with Libby, and that Libby responded, "Yeah,
I heard that, too."

The prosecutor pressed Cooper to then
explain how he knew about Wilson's wife in the
first place, and Cooper said he would not
answer the question because it did not involve
Libby, the sources said.

This all happened BEFORE the email was turned over. From today's New York Times story we also learn:

Mr. Rove corrected his testimony in a grand
jury appearance on Oct. 14, 2004, after which
Mr. Luskin said Mr. Rove had answered all
questions truthfully.

Does that mean he was less than truthful before? Poor choice of words on Luskin's part. Anyway, the important fact here is that Rove did not testify about his conversation with Cooper until after Fitzgerald had already come to suspect, through other sources, that Rove had talked to Cooper about Plame. No wonder Fitzgerald thinks he was lied to. Moreover, it's not even clear that Rove came clean at this point. The same story later says:

[Associates of Mr. Rove. said that] Mr. Rove
testified fully about his conversation with
Mr. Cooper - long before Mr. Cooper did -
acknowledging that it was possible that the
subject of Mr. Wilson's trip had come up.

Two points here. One, this is disingenuous. The reason Rove testified "long before" Cooper is because he did not initially grant Cooper a waiver, thereby provoking an extended court battle. Second, this paragraph seems to imply that even after discovering the email, Rove merely testified that "it was possible that the subject of Mr. Wilson's trip had come up." If that was the extent of Rove's testimony, the grand jury must have been pretty surprised when they learned from Matthew Cooper almost a year later that Rove not only discussed Mr. Wilson's trip, but told Cooper that Wilson's wife worked for the CIA. No wonder Rove recently spent four and a half hours testifying before the grand jury. He had an awful lot of explaining to do.

I now see why Fitzgerald is so convinced that Rove attempted to mislead the grand jury about his conversation with Cooper. The (very) late discovery of a crucial and clearly responsive document is suspicious in and of itself. Any litigator will tell you that. But add to that the fact that it was discovered only after it became clear that Fitzgerald was vigorously pursuing the testimony of Matthew Cooper, and it becomes even more suspicious. Moreover, the content of the email bears directly on a conversation of crucial importance to the investigation that Rove entirely failed to mention in his previous interviews and testimony (and that he appears to have been somewhat vague about even after the email was discovered). As I've noted before, within a week of his conversation with Cooper, Rove and everyone else at the White House were put on notice that any conversations they had with journalists regarding Joe Wilson's wife were potentially criminal. I find it very hard to believe that Rove would have forgotten about his conversation with Cooper in less than a week, especially considering Cooper published the information Rove provided to him just a few days later in an article that was very critical of the White House. The implausibility of such a memory lapse combined with the failure to produce the Hadley email in a timely manner makes for a compelling circumstantial case against Rove. The question Fitzgerald is mulling over right now is whether this is a case he can prove beyond a reasonable doubt.