Rove's Defense

Well, kudos to Jane Hamsher. She scooped the New York Times. In an article in tomorrow's New York Times, Richard Stevenson and Douglas Jehl confirm what Hamsher reported yesterday: that Viveca Novak of TIME Magazine told Karl Rove's attorney, Robert Luskin, about the conversation Rove had with her colleague Matthew Cooper. Why is this important? Well, as the Times explains:

Months before the conversation between Ms.
Novak and Mr. Luskin, Mr. Rove testified to
the grand jury that he had held a conversation
about the C.I.A. officer with only one journalist,
Robert D. Novak, the syndicated columnist.
Mr. Rove did not disclose that he had also
spoken to Mr. Cooper either in his first grand
jury testimony, in February 2004, or in an
earlier interview with the Federal Bureau of
Investigation.

Considering that the conversation at issue took place BEFORE Bob Novak publicly outed Plame, the failure to mention it constituted a rather serious omission on Rove's part. Rove eventually did testify about his conversation with Cooper, but not until October 2004. By that time, there had been a number of key developments. As I've noted previously, Fitzgerald was apparently unaware of the Rove-Cooper conversation when he first deposed Cooper in August 2004. In that deposition, Fitzgerald learned that Scooter Libby was not Cooper's original source. When Cooper refused to testify about that source, Fitzgerald (likely suspecting it was Rove) issued a new set of subpoenas to Cooper and TIME magazine, a move which led to a protracted court fight and to Cooper being held in contempt of court. Only then--as Fitzgerald was bringing the full weight of his prosecutorial power to bear on Matthew Cooper--did Rove finally "remember" the conversation.

Compounding Rove's legal problems was the fact that, somehow, a contemporaneous email he'd sent to Stephen Hadley describing his conversation with Cooper had never been produced to Fitzgerald, despite being clearly responsive to not only the original DOJ document request but to at least three separate sections of Fitzgerald's January 2004 set of subpoenas to the White House. According to the Times, this email was finally turned over to Fitzgerald in Fall 2004, right about the time Rove went in to correct his previous testimony. Rove's timing, therefore, has always been highly suspect. The Hadley email and Rove's buried memory of his conversation with Cooper only surfaced AFTER Fitzgerald was already very close to discovering the truth on his own.

So how does Viveca Novak fit in to all this? Well, under the circumstances presented above, the obvious inference for a prosecutor is that Rove only came forward because he feared Fitzgerald was zeroing in on the truth. In other words, the circumstances strongly suggest that Rove deliberately withheld key information, and thereby committed a number of crimes. What Rove desperately needed, therefore, was an alternative explanation for why he came forward when he did. If not fear of being caught in a lie, what prompted him to finally track down the Hadley email and correct his original testimony? Luskin is hoping that his conversation with Viveca Novak provides such an explanation. The Times reports:

A conversation between Karl Rove's lawyer
and a journalist for Time magazine led Mr.
Rove to change his testimony last year to the
grand jury in the C.I.A. leak case, people
knowledgeable about the sequence of events
said Thursday.

Mr. Rove's lawyer, Robert D. Luskin, spoke
in the summer or early fall of 2004 with
Viveca Novak, a reporter for Time. In that
conversation, Mr. Luskin heard from Ms.
Novak that a colleague at the magazine,
Matthew Cooper, might have interviewed
Mr. Rove about the C.I.A. officer at the
heart of the case, the people said.

. . . [A]fter his conversation with Ms. Novak . . .
Mr. Luskin asked Mr. Rove to have the
White House search for any record of a
discussion between Mr. Rove and Mr. Cooper
around the time that Ms. Wilson's identity
became public in July 2003.

The search turned up an e-mail message
from Mr. Rove to another senior White
House official, Stephen J. Hadley, who was
the deputy national security adviser, that
recounted a conversation between Mr. Rove
and Mr. Cooper. On Oct. 14, 2004,
Mr. Rove went before the grand jury again
to alter his earlier account, by saying he had
also discussed the C.I.A. officer with
Mr. Cooper.

Apparently, this explanation was enough to "give Fitzgerald pause" about indicting Rove on false statement and perjury charges. It remains to be seen, however, whether it is enough to hold off the charges indefinitely. Luskin's story raises some obvious questions:

1) What proof is there that Luskin didn't already know what Novak was telling him? (a guess: perhaps Luskin has contemporaneous notes of the conversation that support his claim of ignorance).

2) Assuming Luskin didn't know about the Cooper conversation, does that really say anything about Rove's state of knowledge at the time? Don't clients routinely withhold information from their attorneys?

3) How much time elapsed between this conversation and the "discovery" of the Hadley email? And for that matter, how is it that such a clearly responsive email was not turned over much earlier?

4) Is there any truth to Raw Story's claim that Rove instructed his assistant not to log the Cooper phone call?

Fitzgerald appears to be trying to confirm the validity of Luskin's account. That's why he wants to put Novak under oath. If Novak's story confirms Luskin's account (and there are no further Woodward-esque surprises), I think Rove has a good chance of avoiding indictment. I'm not sure anything Novak or Luskin could say will ever convince Fitzgerald that Rove's memory lapse was genuine, but they might say enough to make him wary of taking his case to trial. In such a high profile case, the last thing a prosecutor wants is to make major headlines and then lose.