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Waiting for the Other Shoe to Drop

Did Karl Rove Hide or Destroy Evidence in Plame Case?

by JASON LEOPOLD

Special Prosecutor Patrick Fitzgerald met with the grand jury investigating the leak of covert CIA agent Valerie Plame Wilson for several hours Friday. Short of a last minute intervention by Rove’s attorney, Fitzgerald is expected to ask a grand jury-possibly as soon as next week–the to indict Rove for making false statements to the FBI and Justice Department investigators in October 2003, lawyers close to the case say.

Moreover, Fitzgerald is said to believe that there is a possibility Rove either hid or destroyed evidence related to his role in the leak, lawyers close to the case said.

A few weeks after he took over the investigation into the leak of covert CIA agent Valerie Plame Wilson in early 2004, Fitzgerald had already become suspicious that Karl Rove and Vice President Cheney’s then-chief of staff I. Lewis "Scooter" Libby were hindering his investigation.

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 Feb. 6, 2004, confirming that Fitzgerald had the authority to prosecute those crimes, including "perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."

Fitzgerald was concerned that Rove had hidden or destroyed a very important document tying him to the leak. His suspicions may have been right: an email he 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.

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 sent to the White House Jan. 22, 2004 was Cooper. 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. Gonzales’ request 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 request either, people close to the investigation said.

Other journalists cited in the Jan. 22, 2004 subpoena, one of three sent to the White House that day are:

Robert Novak, "Crossfire," "Capital Gang" and the Chicago Sun-Times; Knut Royce and Timothy M. Phelps, Newsday; Walter Pincus, Richard Leiby, Mike Allen, Dana Priest and Glenn Kessler, The Washington Post; Matthew Cooper, John Dickerson, Massimo Calabresi, Michael Duffy and James Carney, Time magazine; Evan Thomas, Newsweek; Andrea Mitchell, "Meet the Press," NBC; Chris Matthews, "Hardball," MSNBC; Tim Russert, Campbell Brown, NBC; Nicholas D. Kristof, David E. Sanger and Judith Miller, The New York Times; Greg Hitt and Paul Gigot, The Wall Street Journal; John Solomon, The Associated Press; and Jeff Gannon, Talon News.

Whether or not Fitzgerald knew in late January or early February 2004 about the existence of the email Rove sent to Hadley remains unknown. The email did not show up during a search ordered by then-White House counsel Alberto Gonzales in 2003. 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 prewar Iraq intelligence. Gonzales’ request came 12 hours after senior White House officials had been told of the pending investigation.

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

Over the past few weeks, the time frame when Fitzgerald became increasingly suspicious-specifically February 2004-has become crucial for Rove. He testified before Fitzgerald’s grand jury that month without revealing he had been a source for Cooper and Novak, saying only that he had shared information about Plame Wilson with other journalists-including Chris Matthews, the host of MSNBC’s Hardball-after her name had appeared in Novak’s column.

In a bid to keep Rove out of Fitzgerald’s crosshairs, Robert Luskin, Rove’s attorney, recently told Fitzgerald that he had a conversation with Time Magazine reporter Viveca Novak in February 2004 where she inadvertently revealed that Rove had been a source for her colleague Matt Cooper. Luskin said this prompted an exhaustive search for the Hadley email which was promptly turned over to Fitzgerald and led Rove to change his testimony.

Luskin testified Dec. 2 that the Novak meeting took place 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, testified that she met Luskin in either March or May 2004, those close to the case said. This discrepancy is at the crux of what Fitzgerald is investigating. Rove didn’t reveal to the grand jury that he had spoken with Cooper until Oct. 15, 2004.

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 Hannah to the leak and 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 laywers 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 have explained Rove’s misstatements to Fitzgerald’s satisfaction, those familiar with the case said. Eleventh-hour testimony from Time Magazine reporter Viveca Novak-who Luskin pointed to as a crucial witness in keeping his client out of court-does not appear to have been helpful in dodging an indictment, they added.

A woman who answered the phone at Patton Boggs, the law firm where Luskin is a partner, said Luskin would not answer specific questions about the probe.

Rove’s alleged failure to disclose his conversations with Cooper and Novak and the fact that he didn’t turn over the Hadley email on two separate occasions is the reason he’s been in Fitzgerald’s crosshairs and may end up being indicted, people close to the investigation said.

It’s also the reason Fitzgerald had grown suspicious at the time that Rove may have hid or destroyed evidence related to his role in the leak, they said, adding that Fitzgerald may have already been aware of the existence of the email, perhaps even obtaining a copy from a witness or another White House official, and waited to see if Rove would cite it or his conversations with Cooper in his grand jury testimony.

It may also explain why Rove’s attorney, Robert Luskin, has reportedly testified that he had a conversation with one of Cooper’s Time magazine colleagues, Viveca Novak, in February 2004. Luskin maintains that he and Novak met in February of 2004 over drinks in Washington, D.C. and Novak tipped him off that she heard Rove was Cooper’s source.
"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," 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 January or February. That’s why it appears he is stating that he spoke with Ms. Novak in February."

Luskin has said that Rove did not intentionally withhold information from Fitzgerald or the grand jury about his conversation with Cooper. Rather, he says Rove had simply forgotten about it, and Luskin’s meeting with Novak had jogged his memory.

Before Novak testified in a sworn deposition last week, Rove faced the prospect of being indicted on numerous counts, including obstruction of justice, perjury and making false statements for failing to disclose conversations he had 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 on 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 may, however, shield Rove from more serious charges, attorneys close to the case said.

Novak (who is not related to the conservative columnist Robert Novak, the journalist who first published Plame Wilson’s name and CIA status,) is the latest in a lengthy list of longtime Washington, D.C. reporters who have become embroiled in the leak investigation, and the third to have withheld crucial information from editors about her involvement while still reporting on the story.

In a first-person account Novak posted on Time magazine’s website Sunday about her role in the case, she said she had met with Luskin, Rove’s attorney, for drinks in October 2003. Luskin asked Novak what she was working on for Time and Novak said the Plame Wilson leak.

"Well you’re sitting next to Karl Rove’s attorney," Luskin said to her, according to Novak’s account.

The two began spending more time together and during the course of several meetings during the first half of 2004, either in March or May, Novak wrote, Luskin had told her that Rove had not been a source for Matt Cooper, Novak’s Time colleague, who had been the second reporter to write about Plame Wilson on July 17, 2003.

Novak said she inadvertently tipped Luskin off to the fact that Cooper’s source was Rove. She said she sensed she was being spun by Luskin and her knee-jerk response led to her divulging information that could be used to help Rove escape serious charges.

Following his meeting with Novak, Luskin told Rove that Novak said he was Cooper’s source. Luskin and Rove then did an exhaustive search through White House phone logs and emails to find any evidence that Rove spoke with Cooper. That’s when the email Rove sent to Hadley was discovered, Luskin said, which he promptly turned over to Fitzgerald. However, Luskin won’t say when he turned it over, or why the email wasn’t found when the White House was subpoenaed on Jan. 22, 2004 or when White House counsel Alberto Gonzales ordered all White House staff in October 2003 to turn over emails and other documentary evidence that showed officials spoke with journalists.

Moreover, it’s not known why Rove did not change his grand jury testimony to reflect that he had been Cooper’s source until October 2004, some six or eight months after Novak’s meeting with Luskin.

This article originally appeared on Truthout.

JASON LEOPOLD is the former Los Angeles bureau chief of Dow Jones Newswires where he spent two years covering the energy crisis and the Enron bankruptcy. He just finished writing a book about the crisis, due out in December through Rowman & Littlefield. He can be reached at: jasonleopold@hotmail.com