As I said earlier, the most interesting part of the Tatel opinion is the two-page section that remains redacted (thanks again to Jeralyn for making the opinion available), explaining why Fitzgerald suspects Rove perjured himself in his testimony about Novak and Cooper. I believe that section includes:
- An assertion that Rove lied when he testified that he responded to Novak's story about Plame by saying, "you heard that too?"
- A description of some way that Rove's testimony contradicts Novak's description that Rove promised to declassify the CIA report on Wilson's trip
- A description of Rove's presumably changing testimony about Cooper--and possibly a description about the magically rediscovered Rove-Hadley email
- A description of one more piece of involvement on the part of Cheney
The passage comes after the long passage explaining the Miller subpoena. That Miller passage follows this logic:
- Describes the two Miller calls
- Asserts that, given the other reasons to distrust Libby's testimony, he may have lied about the Miller conversations, too
- Describes the Russert/Libby discrepancies--including the quotes from both men's grand jury testimony that lays out those discrepancies
- Describes proof Libby knew of Plame on July 8 using the Fleischer conversation
- Describes the potential discussion of Plame on Air Force Two and Cheney's other involvement
- Shows that Miller may provide the final piece of evidence for a perjury charge
One important point here is that the quotes from Libby's, Russert's, Ari's, and Cooper's Libby grand jury testimony are all used to support Tatel's argument that there is evidence of perjury. They're very narrowly selected quotes that pertain directly to the case on perjury. Therefore, it's safe to assume that the grand jury testimony that was unsealed today (including quotes from Novak, Armitage, and evidence pertaining to Cheney) also support an argument of evidence of perjury.
Which brings us to the passage on Rove that has just been unsealed. It starts by setting up that, according to both Armitage and Novak, Rove was involved in the Novak leak, all the while admitting that Armitage was also involved.
Although uncontradicted testimony indicates that Novak first learned Wilson’s wife’s place of employment during a meeting on July 8 with Deputy Secretary of State Richard Armitage (see 8/27/04 Aff. at 18), Novak said in grand jury testimony that he confirmed Plame’s employment with Rove (II-153-54), a longstanding source for his columns (II-121-22). According to Novak, when he “brought up” Wilson’s wife, “Mr. Rove said, oh, you know about that too” (II-154) and promised to seek declassification of portions of a CIA report regarding the Niger trip, which Rove said “wasn’t an impressive piece of work or a very definitive piece of work” (II-158). In an October 2003 column describing his sources, Novak identified Armitage’s comment as an “offhand revelation” from “a senior administration official” who was “no partisan gunslinger.” (II-20.) He referred to Rove simply as “another official” who said, “Oh, you know about it.” (II-20, 209-11.)
Upon reading Novak’s October column, Armitage recognized himself as Novak’s source and, as he told the grand jury, “went ballistic.” (II-859-60.) He contacted Secretary of State Colin Powell to offer his resignation (II-862-64) and spoke the next day with FBI and Justice Department officials investigating the leak (II-878-79). “I was very unhappy at myself,” Armitage testified, “because I had let the President down, I’d let the Secretary down, and frankly, I’d let Ambassador and Mrs. Wilson down. In my view inadvertently, but that’s for others to judge.” (II-860.) [my emphasis]
Now this passage does two things. It lays out all the details thus far presented to the grand jury by Armitage and Novak, though not Rove. And it provides some explanation for why Armitage was not charged with an IIPA violation, but it does not say as much. Alternately, it could lay the groundwork for an argument that Novak was lying when he said Armitage was his first source (which would explain why Tatel included so much detail about Novak's sourcing)--but I'll assume for now it doesn't since the passage says that uncontradicted testimony says that Novak first learned of Plame from Armitage.
The following two pages are redacted, and the paragraph following the long redaction reads:
In any event, as with the Miller subpoenas, the evidence sought from Cooper appears essential to accurate understanding of events and could obviously provide information unavailable elsewhere. Thus, again, the special counsel has shown that this evidence is crucial to accurate decision-making by the grand jury.
So the redactions must logically bridge from Rove's involvement in the Novak article to his leak to Cooper. There are several things that must appear in the two redacted pages.
Probably, the paragraph immediately following the newly unsealed material makes some statement that says, "the Special Counsel could not prove that Armitage knew Plame was covert," which would remain redacted as a charging decision. (Or, if Tatel does suggest that Novak's description of Armitage as his source is questionable, the next paragraph would say that.)
It also must include Rove's version of the Novak conversation (which would be protected under grand jury secrecy. This must differ from Novak's in some way. Novak has already said, publicly, that his version, "oh, you know about that too," differed from Rove's in that Rove said, "oh, you heard that too." Clearly, in his subpoena Fitzgerald made a case that this discrepancy--whether Rove claimed to "know" or merely to have "heard" of Plame's identity--was an example of Rove lying. Let me point out that that means Rove's lie about what he said to Novak precisely paralleled Libby's lie, in that Rove appears to have been telling a story about having heard from journalists.
But note the other bit quoted from Novak's testimony: that Rove discussed declassifying the CIA report and that Rove said the report "wasn't an impressive piece of work or a very definitive piece of work." In other words, Rove said something in his testimony about the report--or denied saying anything about the report at all--that Fitzgerald took as evidence that Rove lied. This is really fascinating and possibly quite significant. After all, Rove has claimed not to have known Plame's name when he spoke to Novak. But if Novak testified that Rove mentioned the trip report, it might be a way to place Rove in conversations that address Plame specifically. In other words, this may be the way to prove that Rove learned of Plame from Libby ... or Cheney.
As I said, a significant portion of this redacted space must lay out Rove's testimony about Cooper. It probably tells how Rove initially claimed he never spoke to Cooper, and then, just as Cooper was subpoenaed a second time, Rove magically found the email he wrote to Hadley reminding himself that he had, in fact, spoken to Cooper. It would be positively delicious if Fitzgerald also described the circumstances regarding the discovery of the email--particularly if that email was not disclosed in response to the initial subpoenas. Generally, though, this section would rehearse all of the reasons to believe Rove had lied in grand jury testimony about Cooper.
Finally (and here's my wildarsed guess), I think this redacted passage includes another reference to Cheney. As I noted in my first post on this opinion, two of the longest passages newly unsealed pertain to Cheney's involvement.
Libby testified that while flying back from an event in Norfolk on Air Force Two, Vice
President Cheney dictated several statements relating to the sixteen words controversy, some to be given to reporters on-the-record, others on background and deep background. (I-193-201.)
Also, though Libby now claims not to remember Cheney telling him to discuss Plame’s
employment, he told the FBI during a preliminary interview that it was “possible” that he received such instructions. (I-201, 391.) Perhaps indicating the issue was on Cheney’s mind, the vice president’s copy of Wilson’s op-ed, which Cheney cut out and kept on his desk, carries the following handwritten note: “[H]ad they done this sort of thing before[,] send an
ambassador to answer a question? [D]o we ordinarily send people out pro bono to work for us? [O]r did his wife send him on a junket?” (I-308-12.)
But the newly unsealed information doesn't tell us why it included that Cheney information. It doesn't say what I've always said when referring to these details--that Libby was lying in order to cover up Cheney's role in this. It is a seeming non-sequitur. In the same way that there is almost certainly some sentence that gives closure to the Armitage quotations in the Novak passage, there must be some kind of statement that explains the meaning of these Cheney references. But since that explanation appears in the Rove section, then presumably there is some evidence of Cheney's involvement in Rove's lies. Get it?
There's one more piece of evidence to support my wildarsed guess. Look at Tatel's discussion of why what appears to be a perjury case overcomes the reporter's privilege.
Finally, while it is true that on the current record the special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. [my emphasis]
He starts by making the argument about obstruction that I've been making for so long, suggesting that the lies Rove and Libby told even still might be preventing Fitzgerald from identifying culprits. That's a particularly curious formulation since Fitzgerald had two suspects, Rove and Libby, in his sights, and if it referred to them you'd think Tatel might have mentioned intent, rather than culprit, which was one of two things preventing an IIPA indictment of them. But it mentions culprit, which suggests that Fitzgerald was prevented from identifying a different culprit--Dick.
And then Tatel goes on to imply that a perjury indictment might be one stage toward further indictments.
Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose—at least at this stage of his investigation—is to shore up perjury charges against leading suspects such as Libby and Rove. [my emphasis]
The allusion to potential follow-on indictments suggests that Tatel has seen the evidence of something more there. Perhaps it's evidence of intention on the part of Rove and Libby and maybe Armitage, which could lead to IIPA charges. Or perhaps it's evidence of direct criminal involvement on the part of Cheney. But there's something more there--and something in those two redacted pages must support the argument that there is something more. I happen to think it's Dick, but then I see Dick lurking everywhere in this story.