Tampering with Evidence: A Cost-Benefit Analysis

by emptywheel

Thus far, one of the most intriguing responses to my email tampering theory comes from Anonymous Liberal (who, I should emphasize, doesn't buy my theory). AL asks,

Does it really seem credible that Rove would go to all that trouble to create a document that is only marginally, if at all, helpful to him? I think not.

Great question, AL. How would Rove weigh the relative costs and benefits of tampering with the evidence involved in this case?

To answer that question, I'd like to consider the two pieces of evidence (that we know about) that Rove may have tampered with--the email and the phone log. I'd like to consider whether an evidence-tampering scenario benefits Rove sufficiently to make it worthwhile and if so, which benefits him the most.

Tampering Did Occur

Let me say right at the start that the evidence strongly suggests that some kind of evidence tampering occurred. We know that Fitzgerald had no idea Cooper and Karl spoke until Cooper testified he had had an earlier source than Libby, so we know he didn't get the Karl-Hadley email before August 2004. We know the email was responsive to at least one of the subpoenas and technically two; we know it would have been found on a search for Cooper's name. So at the very least, something happened to prevent the discovery of the email. Add in the implausibility of the White House not recording calls on the main switchboard, and it seems highly likely that evidence of the Rove-Cooper call was systematically suppressed, in some fashion. This is supposition, of course. But assuming that some evidence tampering occurred, which would be the best cost-benefit risk for Rove?

Tampering with Phone Logs

I haven't heard many theories on how Rove would alter the phone log, mostly because we know so little about White House procedures for logging calls. Presumably, there'd be a log of Cooper's call from the White House operator and, possibly, another log in Rove's office. If it were just within Rove's office, he could have simply said, "Susan, it's probably best not to log Cooper's call. Let's you and I pretend it never happened" (although this doesn't explain why he would, at the same time, send out an email--any email--to Hadley effectively recording the call). But since the call came in through the White House switchboard, that's the log that would have had to have been altered. And altered is probably the case, since a call would presumably be logged as soon as it was put through (that is, it wouldn't be so simple as asking the operator not to record the call, you'd have to go down there and ask him or her to eliminate its record). Now, there may be the same kind of daunting challenges to altering a phone log as there are to altering an email, depending on when the log was altered. Is the log electronic, or paper-based? Does it get copied? Frankly, I don't know. In most offices, altering the log would be as simple as altering a piece of paper--in which case it'd be easy to recreate the entire log page. But this is the White House, so things may be different.

In any case, it seems to me there are just two options here. Either Ralston's implausible story is correct, that the WH only logs some phone calls (and not those that come through the main switchboard). Or evidence of the call was suppressed. I think the cost-benefit analysis for tampering with the phone log may be the same for all scenarios. It might be fairly easy to do. You'd likely be relying on the incredibly corrupt reliable Susan Ralston. And for all scenarios, you'd be weighing the damage of revealing the call with Cooper against the possibility of having the tampering discovered.

Tampering with Emails

There are at least four ways the email--and its production--may have been altered. It's important to consider all four, because each method would have a different cost-benefit analysis. And because, by examining all four, you realize that it is highly likely one of these occurred, and all carry some risk of obstruction charges. The question is which carries the most risk of discovery, and which carries the greatest benefit for your Machiavellian Turdblossom. That is, all evidence suggests that Karl chose between these four alternatives, so the question is "which method did he choose," not "did he choose to risk exposure."

The first method is to conduct the search in response to the subpoenas in such a way as to guarantee you don't find this email. Now, our understanding of what is included in the email comes from Luskin, so we can't be sure of everything it includes. But I strongly suspect that, if an obviously identifiable Luskin leak claimed the email said things it didn't, then Fitzgerald would have moved quicker on obstruction charges. That is, Fitzgerald has a copy of the email as currently constituted. If the email Fitzgerald has says, "Cooper called to talk about Wilson" but Luskin claims it says "Cooper called to talk about welfare reform," you gotta believe Fitzgerald would get suspicious. Here's what we know the email to have said:

Matt Cooper called to give me a heads-up that he's got a welfare reform story coming, When he finished his brief heads-up he immediately launched into Niger. Isn't this damaging? Hasn't the president been hurt? I didn't take the bait, but I said if I were him I wouldn't get Time far out in front on this.

This was clearly responsive to the January subpoena and generally responsive to the first subpoena. Any search on Cooper's name or the word Niger would have produced this email. So to avoid finding this email, you'd have to make sure the search didn't look for Cooper's name or the word Niger, or used an AND statement that included Wilson or something like that.

This method would almost certainly include a few people besides Karl (unless we're to believe that he and Hadley searched their own email). It would carry the risk of exposure if investigators insisted on doing a search themselves. But it would offer the most plausible excuse. "Oh, I'm sorry. When you said you wanted records of contact with Matt Cooper, I didnt' imagine you wanted us to search on Cooper's name." The most plausible excuse, but still a pretty pathetic one (and, incidentally, the one Luskin is currently using). Now perhaps the investigators haven't been able to do their own search of the servers. But I'd assume after Luskin produced this email, Fitzgerald made sure to have them do their own search. In which case the improper search terms would be discovered.

The second method is to withhold the email, after it has been found. Just simply not turn it over after it had been returned on a fairly competent search. Again, this would probably involve more people than just Rove (and might involve ethical violations on the part of Luskin as well). But it would provide a much less plausible excuse; once Fitzgerald had his own search done, he would compare the results of the search terms the White House said it used with the results it should produce. You might not pinpoint who was responsible for the obstruction. But you could definitively prove that obstruction had occurred.

The third method is to alter the content of the email at least once, to create an email that fit the search terms you know to have used, while still spinning the story like you'd want. This method probably requires the help of more people (some crack IT people). And it risks the same danger of discovery as the first option (why wasn't this found on a Cooper search?), plus the discovery of the altered data. But it might shift the time when the first discovery might happen. That is, if the FBI didn't find this email on its search, then it would offer the WH search some cover."Well, the FBI didn't find it when they looked for Cooper's name either, so it's probably just something funky with the email."

The last method is to create an email after the fact. I think (but am not positive) that this would be even more difficult technically than option three. But otherwise, it would have the same advantages--you could match it to known search terms and tailor it to the excuses you were offering when you handed over the email.

The Alternative: Scooter Libby

Before I get into the cost-benefit analysis, I'd like to consider the alternative. Now, far be it for me to claim that Libby didn't obstruct or witness tamper (aspen-turning, anyone??). But I've long thought Libby had the biggest temptation to alter evidence, specifically his hand-written notes, because it was the easiest thing to alter and the pretty damned incriminating. All he'd have to do is replace the pages on which he had taken notes, and voila! the entire record of WHIG's activities is magically altered.

But it appears Libby didn't do that. If Libby had altered his notes, he almost certainly would have removed the tidbit that he learned of Plame's identity from Dick, and he almost certainly would have removed the tidbit that he and Dick discussed Plame strategy on July 12. (Unless of course he kept it in there as a little insurance policy.)

And, as a result, Libby had to tell a really ridiculous lie. Libby had to tell a lie that would (and was) be immediately refuted by the key witnesses to his story. And, Libby had to accept the role of fall-guy, to explain away Dick's involvement in this. Perhaps not a problem if you're a loyal neocon. But an inconvenience, certainly.

We don't know how many transparent lies Rove would have had to tell if all the evidence was out there (remember, we only know about his conversation with Cooper because Cooper also had a conversation with Libby; it's possible there are more journalist conversations we don't know about that he has similarly suppressed evidence of). I suppose he'd just have had to make up a pathetic story about learning of Plame's identity from Cooper (rather than telling Cooper of her identity), just as Libby did. The biggest difference, for Karl, is that he spoke to the two known recipients of the White House leak. Karl has said he didn't tell Novak about Plame's cover status, but Karl's also a big fat liar. Whereas with Libby, all the known leakees corroborate he didn't tell about Plame's covert status (he didn't tell Judy, if we can believe Judy), with Rove, only Cooper does (so far). In other words, if Rove told Novak Plame was covert, then he might have a much bigger reason to hide his tracks, particularly since everyone was worried about an IIPA violation, not just passing on classified information.

Cost Benefit Analysis, Option One

There are three possible base conditions from which we can do cost-benefit analysis. The first is that Karl, crafty guy that he is, sent the email in its current state to Hadley as a CYA. He feels uncomfortable that he just shared Plame's identity, so he writes this email to suggest that the call was not primarily about Wilson, and to obscure the fact that he had passed on Plame's identity. One tidbit suggesting this is wrong is a comment from Joe Wilson, which indicates Karl had no idea he was breaking the law at the time:

Apparently, according to two journalist sources of mine, when Rove learned that he might have violated the law, he turned on Cheney and Libby and made it clear that he held them responsible for the problem they had created for the administration. The protracted silence on this topic from the White House masks considerable tension between the Office of the President and the Office of the Vice President.

But it's not unreasonable to suggest that Rove is such a tricky guy that he CYA's all the time.

So Karl writes a CYA email to Hadley right after his conversation with him. It's a CYA, but apparently not a good enough CYA. Because when the FBI and later Fitzgerald subpoenas evidence, Karl realizes that this email still reveals too much. If he turns over the email, he would have to explain that he did have a role in the Wilson leak in Fall 2003 or Winter 2004. He would have to admit that he was the source for at least one journalist.

Perhaps this wouldn't be too bad. After all, the WH was proclaiming in Fall 2003 that no one had committed a crime--they had stopped claiming Rove et al weren't involved, they were simply implying that Plame wasn't covert or that they hadn't passed on news of her status. Rove--at least according to Cooper--didn't pass on that news. So releasing the email would be perfectly acceptable given the US spin at the time. I really think this would have been the best option, given Karl's ability to control the message. If Karl really could claim he hadn't broken the law (and if it's true that Karl never saw the INR memo, he may legitimately have claimed he didn't know this was classified), then he should have handed over the email. So maybe hiding the email covered up evidence of greater guilt, perhaps leaking to Novak.

Or perhaps Karl wanted to avoid any possibility he might have to step down. One year before the presidential election.

Now, there's a lot of other evidence that suggests Karl lied in Fall 2003 and Winter 2004 about his involvement (claiming, among other things, that he hadn't spoken to anyone before Novak's article). So hiding this email would be consistent with the lies he was giving in his testimony. Presumably, his goal was to only admit the truth that he knew had been testified to. Thus, his strategy of first admitting he did have conversations with reporters but didn't tell of Plame's identity, then admitting he did speak with reporters before Novak's article, then admitting he talked to Cooper, and finally (presumably in his most recent GJ appearance) admitting he told Cooper of Plame's identity but not her covert status. The strategy is thoroughly a strategy of postponement, not necessarily one designed to avoid indictment.

So, to support such a strategy of postponement, which would be a better approach, to withhold the email or to conduct an incomplete search? Neither works very well, frankly. Because if your strategy is one of postponement, then the most important thing is to be able to release evidence and testimony in response to the testimony of others, as slowly as it takes to subpoena and appeal journalists to testify. If you've withheld the email or if you've conducted an incomplete search, you're still going to have explain how you got that email at precisely the time Cooper's testimony revealed the Rove conversation (which is where Rove is at, frankly). So it doesn't permit you to avoid obstruction charges.

More importantly, if someone does a complete search on the servers, than you're going to be found out at an inopportune time, perhaps right before the election. If this strategy is all about controlling the timeline of revelations, it carries the distinct risk that you'll lose control of the timeline.

Cost Benefit Analysis, Option Two

The second option is that no email existed, but Rove needed to invent it to provide some kind of excuse for why he remembered Cooper's email. This option doesn't make any sense to me (technical considerations aside). Rove would be inventing this email--risking an obstruction charge--to prevent a perjury charge. It seems the obstruction charge is more damaging politically than the perjury charge, and almost certainly incriminates more people. So this option doesn't seem to make sense to me.

Cost Benefit Analysis, Option Three

The third option is that the original email was fairly incriminating, something along the lines of "I just spoke with Matt Cooper from Time about Wilson and Niger. I explained Wilson's wife's involvement in this. Cooper seemed pretty hostile about doing a story. Maybe Libby can call and convince him of our viewpoint." Why do I think this reasonable? Well, we know from Libby's indictment that on July 10 or 11 Libby and Karl spoke about Novak's story. Presumably, that conversation transpired before the Cooper-Rove conversation, or Rove would have mentioned his Cooper conversation as well as his Novak one (although, it is possible the conversation was after the Cooper conversation and Rove did mention it!). Assuming he hadn't already mentioned the Cooper conversation and Rove was really running out the door for vacation, he may not have had time for a conversation with Libby to fill him in. So, instead, he emailed Hadley to do precisely what he had done in that conversation, fill Hadley and Libby in on the status of the leak campaign so far. In which case, Rove would have wanted to be fairly accurate about what transpired with Cooper, and what needed to be done to ensure Cooper followed the WH spin.

Also, neither the Libby indictment nor Cooper's own story describe whether Libby called Cooper or vice versa. Neither tells us whether Cooper had actually called Libby before his July 12 trip on Air Force Two, at which point he strategized a response to Cooper (although the indictment does refer to Cooper's questions). It is possible (although we have no way of knowing) that Cooper hadn't called Libby directly before their July 12 conversation, the Cooper questions were passed on from Hadley or someone in OVP. It's also possible Rove directed Cooper to Libby. Or, that Cooper called Libby on his own, but that Libby had already heard from Rove about their conversation. I think the last possibility is the most likely, not least because Cooper's and Libby's on-the-record conversation had to do with Dick's role in sending Wilson. In any case, there's a distinct possibility that the strategizing Libby did with Dick was in response not just to Cooper's inquiries, but also to Rove's report of their July 11 call. Which would mean the content of the Cooper call would have had to have been reported back to Libby or Hadley in some fashion.

So assuming the original email was an accurate portrayal of the call and was intended to at least report back what Cooper knew, if not get Libby or Hadley to put more pressure on Cooper to accept the WH story. What are the cost-benefit analyses here? If the email originally existed and described the conversation accurately, then you're weighing having the email discovered in Fall 2003 or altering the email after the fact (Rove COULD have simply withheld it, but then he wouldn't have submitted a different email to Fitzgerald last Fall.) The problem with releasing this email in Fall 2003 is that it not only proves Rove's involvement, but it proves the conspiracy. If it were revealed in Fall 2003, you'd have proof of a crime that might take out Rove and Hadley (at the least), one year before elections.

But weight that against the high chance of obstruction charges. I agree that this option probably exposes more people to obstruction charges than the other options. In addition to the Rove/Ralston/IT guy exposed in the other options, this would expose still more IT guys. The additional people also increase the chances that someone will flip on you or otherwise reveal the game. It requires a lot more work, the correction of the backups every time you change the email content. It's not an easy or safe option, certainly.

But its benefit, it seems to me, is that you'd have more control over when the obstruction would be discovered. If, before each search of the servers, you adjusted the content of the email to avoid discovery of it, then there would never be a way to simply replicate a search and find the email. You'd have to get hold of the back-ups, and do a search more targeted to this email as it exists. That is, with email in hand, you'd search on Cooper and Niger, and find the existing backup copy. And then, assuming Rove's minions aren't better hackers than Fitzgerald's (which is probably a safe assumption), you'd examine the backup copy closely enough to expose the email as fradulent.

And the benefit in this case? It almost certainly gets you through the election, since you largely control when it will be revealed. It leaves you the most options open, based on which of the journalists Fitzgerald discovers (if indeed there are more journalists out there). It allows you to construct the best available excuse at the time when you are finally forced to turn over an email.

Obviously, I have no ideas which of these scenarios is correct. The least risky and most likely solution, assuming Rove did CYA when he first talked to Hadley, would have been to make sure the searches deliberately didn't return this email. But I think the option that provides you the most options--particularly getting you beyond the election--is the alteration strategy.

Comments

[meg]

Thanks for your hard work on this topic!! I love your cost/benefit analysis.

I don't think that you need to knowingly involve ANY techies in the alteration scheme. As noted below, you could have someone like Gonzales ask a techie in a different context how to alter an email. Supposing Gonzales was working on a case where forged emails might happen. The techie would not know how Gonzales used the info.

I posted the following to Anonymous Liberal
My basic assumption is that the original email was a smoking gun. So bad that for Rove, that it is straight to jail.

Here are my assumptions:
1. The original email is a smoking gun.
2. Rove has the choice of turning the email over, hiding the email or altering it. Rove first hides the email and then alters it.
3. Rove assumes that Gonzales et al will help him by not passing on emails that Rove doesn't like. [We have been told that the Hadley email WAS not turned over by Gonzales]
4. Rove hopes that the investigators will not go to the archives to search for emails themselves. If the investigators had gone to the archives themselves, the investigators would have the Hadley email before Rove gave them his copy. [I do believe that the investigators did look for themselves. But just because Rove's plan would or would not work, doesn't mean that he didn't try it anyway. This would not be the first Rove Hail Mary pass.]
5. Rove changes the contents of the COPY of the email sent to the investigators, but leaves the meta-data alone. The changes to the copy leave the character count the same as the original. There are editors available that do not leave traces. Now the real email logs match the altered email. The archived email does not match.
6. Rove gets a trusted person to ask a techie how a criminal might alter a COPY of an email. Gonzales, for example, as an attorney might well ask this sort of question.

[Libby Sosume]

I think Karl Rove was smart enough to do the CYA thing (and you make my case eloquently, providing rationales I hadn't thought of). I think Karl Rove wanted to stay clear of the whole mess, like you said, until after the election.

I don't think Karl Rove was well informed enough about the legal subtleties of obstruction and perjury - at the early stages - to have strategized much beyond this:

Rove: "What do I do?"

Luskin: "Since, as you've told me, you're not guilty, then all you can do is cooperate. And since you have yet to be charged with anything, I don't want to run up your legal bill anticipating all sorts of spculative scenarios - that don't apply anyway, since you're innocent - my advice is, cooperate. Look for any emails, coorespondence, records that respond to the subpoena and if you find any, turn them over. (Copy to me of course.) If you don't, then don't."

I also think you may be giving to much credit to the integrity of the process. I would find it very easy to believe that the IT people did the search, then put the stack of papers on Rove's desk. He looked through them, didn't find anything, or forwarded on what he did "find." Burned the rest.

Finally, I think you still have no concept of how hard it is to forge or alter archival electronic records, without detection, in a sophisticated office network. If it isn't impossible, it's so improbable as to not be worth discussing. He would have had to hire specialists from Microsoft/IBM/Novell, or one of their VARs, and that would entail much more risk.

[emptywheel]

LOL Meg, I saw that over at AL. But it was someone who looked different than you!

I do think it much more likely the original email was a smoking gun. But I don't have any positive evidence for it...

I am newly curious--did Cooper leave a message with Libby before the 12th? Did Rove share details of his conversation with Cooper with Libby? To what degree was the strategy session on AF2 influenced by Rove's conversation with Cooper?

[emptywheel]

Libby, I guess you and I will have to agree to disagree. Your scenarios continue to seem completely implausible to me (which is not to say the CYA scenario can't be plausible, just not in the Karl as innocent scenario you draw), given what we know about Karl and his behavior in this matter specifically. But perhaps I'm giving too much weight to known past behavior.

[meg]

Emptywheel,

AL uses blogspot and we just started a new blog at blogspot. My id at the new blog is CouldBeTrue so AL's blog picked up that id.

Rove did share details of his conversation with Novak with Libby. Makes sense that he would share details of his conversation with Cooper. Except that Rove was just going on vacation. Still, I would bet that Rove keeps his Blackberry, cell phone and laptop handy while sipping beers at the beach.

According to Cooper's account, Rove indicated that he had said too much and that some info he told Cooper would be declassified soon. I have speculated that the Rove to Hadley email was a plea to declassify that info ASAP. I think as the NSA guy Hadley might well be the point person for declassification of CIA info.

So yes, I do think that the Rove/Cooper call had to be discussed.

[emptywheel]

Or let me try this differently, Libby.

Ten days after, as you have it, Rove hides his involvement in the Plame Affair from Hadley because he doesn't want any involvement until after the election, he calls a notoriously loud-mouthed journalist and says, "Wilson's wife is fair game."

How is this consistent behavior?

[meg]

About that phone log entry for the Cooper call - raw story said "Earlier this month, attorneys say Fitzgerald received additional testimony from Ralston -- who said that Rove instructed her not to log a phone call Rove had with Cooper about Plame in July 2003."

see http://rawstory.com/news/2005/Testimony_from_Roves_former_assistant_may_1128.html

This account doesn't make sense to me. Why tell Ralston NOT to log the call and then email Hadley that you had talked to Cooper? I think that the phone log was altered later.

Again, the alterations may or may not have fooled Fitz. Doesn't mean that they didn't try.

[Greg]

EW...

I have no idea how "discovery" works here... (it's probably not called "discovery" in a criminal case...)

But I hold to the simplest explaination. Rove was CYA all the time. (I even tend to think this way when using any electronic comm. methods, and other written ones. I'm just the paranoid type.)

Could he, Rove, have been responsible for going through the stack, physically or virtually, of the emails and identifying ones to turn over. I'd have a hard time believing they simply turned overy every email that produced a hit on a word search.

The subject(s) would need to review those that hit and remove those that weren't applicable.

So, couldn't have Karl held out mail he claimed didn't match, and this one wasn't really dedicated to the Traitor-gate thing directly. As per Karl - Cooper called for other reasons and the conversation just tangentially touched the subject. So, perhaps, given enough beers you could claim it wasn't material.

So, given all this, I like scnereo one. Not that Karl is "innocent" or that it's a really good strategy, but that's it's easy, plausable, and if caught, perhaps even survivable. (It wasn't relavent, I missed it, etc...)

The downside is that simple measures to cover-up are more easily disposed of with less effort. However if that effort never comes because you threw enough sand in their eyes, then it was simply and effective. It's no matter that it's easily exposed because no one's going to look.

Cheers,
Greg

[Greg]

Sorry for typo hell... [Ugh)

[Jeff]

We know that Fitzgerald had no idea Cooper and Karl spoke until Cooper testified he had had an earlier source than Libby, so we know he didn't get the Karl-Hadley email before August 2004.

I've recently become skeptical that Fitzgerald did not have the Rove-Hadley email pretty early on. I have no idea if he did, of course, but Murray Waas, who has not been wrong about much, was pretty clear that investigators were specifically skeptical of Rove's failure to mention Cooper quite early in the investigation, even before the appointment of Fitzgerald. Here's what Waas wrote this past August, in an article that Polly has been highlighting:

But it was Rove's omission during an initial interview, back in October 2003, with the FBI?that he had ever spoken with Cooper at all?coupled with the fact that Ashcroft was briefed about the interview, that largely precipitated the appointment of Fitzgerald as special prosecutor, according to senior law enforcement officials familiar with the matter.

The obvious implication is that, whether from the Rove-Hadley email or otherwise, investigators were well aware of the fact that Rove had at least spoken with Cooper. Is it possible that it's just incorrect that Fitzgerald didn't know that Cooper had spoken with Rove until Cooper mentioned he had another source while testifying about Libby?

[chris]

The whole Plame outing actually started with the FORGED Niger documents.
Altering information and then distributing misinformation is the MO of this White House. It is pervasive in absolutely everything they do. So, I agree that it is not a question of IF Karl altered an email, but WHEN and HOW and WHY he did it.

Look at the trail of forged documents, fake reports, bogus news stories. Plenty of people were willing to lie for this administration. Remember when Cheney wanted to get funding for an Office of Disinformation? I don't think it would have been to hard to find a Pointdextery type IT guy who would have any moral scruples helping out the cause.

[emptywheel]

meg

One more thing that would support your declassification notion is that there is another Rove/Libby/Hadley communication from earlier in the week about which there is dispute. Rove and Libby say they were involved on strategizing the Tenet response. Tenet says they weren't. I suspect Rove and Libby leaked that story to provide cover for some other incriminating communication.

Now, Novak also mentioned the declassification, but he provided more specifics. He said it was the CIA report on Wilson's trip. If they were going to declassify Wilson's trip report, then they'd be discussing very similar things to what Hadley probably discussed with Tenet vis a vis his statement (Tenet's statement relies on the trip report, for example). Or they might even be trying to hide the fact that they tried to declassify that trip report.

Anyway, here are two posts that give more details to this.

One interesting detail from the second one. Here are the two competing stories:

CIA: Hadley first saw Tenet's statement on July 10, and only Hadley had input.

Rove/Libby/Hadley: All three worked on Tenet's statement and they had been working on it "all week."

Obviously, the discrepancy in dates would impact heavily on whether they could discuss declassification when they spoke to Novak on the 8th.

[organizedwheels]

I don't think you included the AID funding for Mercy Corps. It was billions and Plame was mad at only one employee.

[starstwinkle]

Emptywheel
In your third method (But it might shift the time when the first discovery might happen. That is, if the FBI didn't find this email on its search, then it would offer the WH search some cover."Well, the FBI didn't find it when they looked for Cooper's name either, so it's probably just something funky with the email.")
Do we know when the FBI searched? Was it before Fitz came onboard? Alot of Roves actions may hinge on him feeling safe with an investigation under Asscroft or things could have been 'overlooked' during that time period before Fitz. I think its possible that part of the reason Fitz has had a hard time connecting all the dots may be because of this take over from JA. Who knows what Fitz accepted as truthful when he took over. Maybe he has found that he needed to redo all the work done before him.

[MediaFreeze]

EW, you say:

"We know that Fitzgerald had no idea Cooper and Karl spoke until Cooper testified he had had an earlier source than Libby, so we know he didn't get the Karl-Hadley email before August 2004."

How do we know that?

How do we know when Fitz got the email?

Why do you assume Fitz would wave around a piece of evidence that he thought was intentionally being withheld?

I still think that the possibility that the investigation got the email first should be considered.

[emptywheel]

Jeff

Just saw your post. You raise a good point (and one I thought of when I made that unequivocal statement).

As I pointed out in my last post, when Fitz issued the second subpoena (naming all the Time reporters), he seems not to have been certain who spoke to whom when. And in May he obviously went after Cooper based on his Libby conversation. So while he may have known that Rove and Cooper spoke, he may have had an incorrect idea of when that conversation was. He could have believed that Rove spoke to Cooper after the Novak leak, when, after all, Rove was telling reporters that Plame was "fair game."

But what I do feel safe saying is that in May-August 2004, Fitz did not know that Rove had spoken to Cooper before Libby did. Otherwise, he wouldn't have dealt with that subpoena in the way he did. He may have believed Cooper and Libby had a substantive conversation when Cooper just called to leave questions (if he did), which would place THAT Cooper-Libby conversation before the Rove-Cooper one on the 11th. Or he may not have know the date of the Rove-Cooper conversation. Or he may have had reason to believe it was after the Novak leak (maybe Rove DID call the following week, as well).

My point is, that still pretty much rules out Fitz having the email before May 2004. Otherwise, Fitz' behavior doesn't make sense.

[emptywheel]

starstwinkle

I don't really know when or if the FBI has done its own search. But yes, you raise an important point. While the FBI was clearly doing some good work in that early period, DOJ wasn't.

MF

I hope my post to Jeff suffices to respond to you. The only other scenario I can imagine is that sometime between the time Fitz first offered to limit questions to Libby and when he finalized that deal with Cooper, he discovered that Rove had talked to Cooper first. And that the judge encouraged him to just go ahead and get the Cooper-Libby testimony, and then he'd look kindly on teh second subpoena if it were necessary.

But again, I don't understand why you would agree to limit to Libby if you knew that Libby wasn't the only one.

Then of course, why did Fitz agree to limit Judy's testimony to Libby? So I guess my argument isn't all THAT strong, is it?

[ExcuseMeExcuseMe]

EW:

On Cost/Benefit, Option Two don't you mean that Rove needed to invent it to provide some kind of cover for why he remembered Cooper's phone call rather than his email?

[ExcuseMeExcuseMe]

EW:

It would seem that the whys and wherefores of what Fitzgerald does or does not do - such as limiting testimony - will only be answered if we ever know what Fitzgerald knew and when he knew it.

Isn't it possible that he limited Judy Miller's testimony because either 1) all he needed was confirmation and she tripped up and gave him something else he wasn't looking for, or 2) he knew that her testimony about Libby was going to go down a road she hadn't thought of but he knew would result from a question he already knew the answer to?

I think that makes sense on the page but I'm not sure.

[MediaFreeze]

EW

Thanks for the response. I'd like to hammer at this a little more though. You say:

"pretty much rules out Fitz having the email before May 2004. Otherwise, Fitz' behavior doesn't make sense."

Please let me play devil's advocate.

Here you are Fitz, you have a piece of evidence that has been withheld from your document request. What do you do? Your try to figure out if it was intentionally withheld. Which means that you act like you don't have it.

Again, humor me for a second.

You agree to limit Cooper's testimony to Libby, because you already know when Rove talked to Cooper. If need be you can use the knowledge anytime you want. You can always use that Cooper already talked to Rove to compel further testimony, but you want to find out what's up with Libby. You're carefully rolling up the perps.

This may even be part of what tipped Rove off to cough up the email.

Who knows? I don't know how likely this is, but I would be careful making hard conclusions based on interpretation of Fitz's actions.

[ExcuseMeExcuseMe]

MF:

Fitzgerald had to prove to the court the necesssity of Cooper's testimony - in your scenario Fitzgerald would be swearing to the court that he needed to know something that he already knew.

I don't think so, but I am not a lawyer.

[emptywheel]

EMEM

Yes, you're right. Phone call.

MF

You're right--we can't make hard conclusions. But I'll stick with a soft conclusion then, admitting that I could be seriously wrong, that it doesn't make sense to subpoena Libby without Rove. You know when Libby talked to Cooper as much as you do Rove, even if you do have the email. What you're going to get from Cooper, in either case, is verification the SAO is lying.

Plus, if Fitz had the email through 2 GJ appearances, why wouldn't he have charged Rove with obstruction. It's easy, doesn't require the cooperation of journalists, and prevents Rove from trying to get out of the obstruction he committed, as he is now trying to do.

[Libby Sosume]

Well, we will disagree. Not trying to have the last word, but just to better explain where I'm coming from, I would say this:

What sticks out at me more than anything else is the simple fact the email is inconsistent with Cooper's testimony. Cooper would have little or no reason to lie, but Rove would have all the motivation in the world. Therefore, the email is probably untruthful (certainly not the complete truth).

On those points we seem to agree.

Why is it untruthful? But more importantly, who is the intended target of the untruth? Well, I don't have a problem with the idea that it was untruthful to Hadley in the first place, and secondarily to anyone who might have access to the email later.

It is plausible to me that Rove was on the periphery of a plot that was really driven by Cheney's people, the WHIGs, and maybe Hadley. It is plausible that Rove knew about it and was gleefully "assisting" while at the same time keeping his distance from the plotters.

It is even plausible to me that Rove hatched the Plame plot in his own evil mind, then planted enough seeds around to get others to do the actual deed (and take the rap) - all the while keeping his distance, for the record.

Neither of those lets Rove off the hook as a bad guy.

What's more, Rove was not a National Security principal. He may have had enough clearance to come by the Plame identity information "lawfully," but he didn't have the cred or official standing to be the frontman on disseminating that kind of info. If I were in his shoes, I would not want to be the one pushing this Plame info out to reporters. The reporters might ask questions like, "How did you come to know this and why are you telling me?" I would rather have the reporters get it from someone who by their very job descriptions would reasonably be in-the-know - someone in CIA, someone on NSC, possibly State, etc. If I (as a reporter) hear it from one of the latter, then I am inclined not only to believe the info per se, but also to swallow the attendent spin job (nepotism, etc). I would rather hear it from someone who is "no partisan gunslinger," as Bob Novak put it.

Karl Rove is smart enough to know that. So I think he let (or manipulated) others to do it, while trying to keep his skirts clean.

You seem to have a problem with the idea of Rove being untruthful to Hadley and so you construct a very difficult scenario where the original email was TRUTHful and was later altered to become a lie. I just don't see where that kind of hypothesis is necessary, much less technically plausible. (I say this as someone who knows a bit about email systems. I installed some of the first computerized office automation systems at the Senate offices in the mid-1980s, and I personally taught the late Senator Moynihan how to use his email.)

[ExcuseMeExcuseMe]

EW:

With regard to charging Rove with obstruction, even if Fitzgerald had the email wouldn't he have to first remove all possible explanations for Rove's memory lapse - or not finding the email - before he charged him?

Or, can an obstruction charge be based strictly on the fact that Rove withheld information that should have been included based on the (very specific) subpoena?

[ExcuseMeExcuseMe]

Do we know if Karl Rove's promotion changed in any way his level of security clearance?