Rove Advises Lawyer: Leak Profusely

by emptywheel

Imagine Karl Rove, tied to a serious crime, working with his defense lawyer. Who do you think would give more advice? Ronald Luskin, the lawyer, counseling Rove on how to avoid jail time? Or Rove, the political strategist, advising his own and other lawyers on how to game public perception of a possible prosecution?

I think, in the case of Michael Isikoff's presumed smoking gun article, it's the latter. Indeed, while everyone seems thrilled that Isikoff and Lawrence O'Donnell have fingered Rove, I'm more skeptical after reading Isikoff's article.

There are numerous reasons to doubt that Rove's guilty of anything more than perjury (though don't get me wrong, I'd take a perjury conviction happily!) There's the obvious reason that Rove would never have had a need to know Plame's identity, and therefore couldn't be found guilty under the Intelligence Identities Protection Act, which only applies to those with authorized access to the agent's identity. There's not a really plausible reason why Rove would have had authorized access.

And David Corn points out the gaming that Rove's lawyer seems to be doing in the Isikoff article:

Rove's lawyer stated that Rove did not "knowingly" disclose classified information. Does this mean he "unknowingly" revealed such information? The distinction is important because the Intelligence Identities Protection Act essentially says that for a crime to have been committed the offender must have realized that he or she was disclosing top-secret information. (Otherwise someone could be prosecuted for making an honest mistake.) True, Rove's mouthpiece also said that Rove "did not tell any reporter that Valerie Plame worked for the CIA." But his use of the word "knowingly" can be read by those wishing to see Rove frog-marching as the start of a criminal defense strategy.

It's quite possible that Rove leaked the Plame information without knowing the gravity of the leak. If he didn't lie to the Grand Jury about doing so, then he's in the clear.

But I'm skeptical that it's Rove because of the other gaming that seems to be going on in Isikoff's article.

This is a pretty big scoop, being the first to report the contents of Cooper's notes on the Plame prosecution. But Isikoff doesn't get any information from Time or Cooper.

Cooper and a Time spokeswoman declined to comment.

Rather, he depends on Rove's lawyer Luskin and two other lawyers representing "witnesses sympathetic to the White House."

The e-mails surrendered by Time Inc., which are largely between Cooper and his editors, show that one of Cooper's sources was White House deputy chief of staff Karl Rove, according to two lawyers who asked not to be identified because they are representing witnesses sympathetic to the White House. (emphasis mine)

Besides the delicious irony of a Plame article largely relying on two White House-related sources, speaking anonymously, this sourcing really raises questions about the emphasis of the article. After all, is there any conceivable reason why lawyers who presumably have the White House's best interests in mind would leak information that seemingly damns Karl Rove?

But one of the two lawyers representing a witness sympathetic to the White House told NEWSWEEK that there was growing "concern" in the White House that the prosecutor is interested in Rove.

I can think of two plausible scenarios to explain why a lawyer would leak this information. While this anonymous lawyer is representing someone "sympathetic to the White House" (and what a curious description--hell, maybe even Cooper is considered "sympathetic" to the White House by his lawyer Ted Olson! And there's no reason why one of the anonymous lawyers couldn't be Luskin, going off the record to seed a story), this person may not be sympathetic to Karl Rove. That's possible, certainly. But I doubt it. Rove is too integral to the White House.

Alternately, there's the possibility that Karl Rove is under no real threat of prosecution (probably for the reasons Corn describes), and they're using Rove as a red herring, at least in the court of public opinion. Perhaps the lawyers are leaking--with Rove's full knowledge--in an attempt to shift all focus away from some other target.

Finally, consider the reporter. Isikoff has only recently been put through the White House wringer. That doesn't necessarily reflect on this story--perhaps Newsweek just felt like Isikoff deserved this scoop. Or perhaps the White House sought Isikoff out, believing him to be well-chastened. But there's enough baggage there that I'm suspicious of the article in general.

In any case, Isikoff's story reads like the product of yet another well-designed media campaign. Perhaps the White House knew right where to go for a poorly-sourced story.

Comments

[emptywheel]

One more reason to doubt Rove's the big target here. As Corn points out, Cooper's original Time story talks about multiple White House sources, not two as Novak's story does. Which suggests that in addition to known leakers Scooter Libby and Karl Rove, there may be one or more additional leaker we've not though about.

I personally think Fitz is getting closer to Cheney (and I believe Cheney was asked to testify again recently). After reading this article, I certainly suspect they're trying to protect someone else.

[Mike S]

The Stakeholder linked to a John Dean article with some surprising new twists, at least for me.

The White House Need Not Have Leaked to Have Committed a Crime

snip

But even if the White House was not initially involved with the leak, it has exploited it. As a result, it may have opened itself to additional criminal charges under the federal conspiracy statute.

Why the Federal Conspiracy and Fraud Statutes May Apply Here

This elegantly simple law has snared countless people working for, or with, the federal government. Suppose a conspiracy is in progress. Even those who come in later, and who share in the purpose of the conspiracy, can become responsible for all that has gone on before they joined. They need not realize they are breaking the law; they need only have joined the conspiracy.

Most likely, in this instance the conspiracy would be a conspiracy to defraud - for the broad federal fraud statute, too, may apply here. If two federal government employees agree to undertake actions that are not within the scope of their employment, they can be found guilty of defrauding the U.S. by depriving it of the "faithful and honest services of its employee." It is difficult to imagine that President Bush is going to say he hired anyone to call reporters to wreak more havoc on Valerie Plame. Thus, anyone who did so - or helped another to do so - was acting outside the scope of his or her employment, and may be open to a fraud prosecution.

What counts as "fraud" under the statute? Simply put, "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government." (Emphasis added.) If telephoning reporters to further destroy a CIA asset whose identity has been revealed, and whose safety is now in jeopardy, does not fit this description, I would be quite surprised.

If Newsweek is correct that Karl Rove declared Valerie Plame Wilson "fair game," then he should make sure he's got a good criminal lawyer, for he made need one. I've only suggested the most obvious criminal statute that might come into play for those who exploit the leak of a CIA asset's identity. There are others.

http://www.yuricareport.com/Impeachment/DeanFurtherLookOnWilsonLeak.html

[Kagro X]

OMG!!! FRAUD!!!1

[Mike S]

Like so many people have pointed out before, Al Capone died in prison for Tax Evasion. I'll take anything that takes the brain away from Bush.

[Mimikatz]

To my thinking, the really important person here is the one who had access to classified info and gave Plame's name and connection to Wilson to someone else who didn't have access. Isn't that the initial offense? That person almost certainly wasn't Rove. It could have been Bolton via Fleitz, or Hannah or Libby, or someone else.

Then there was the person it was initially leaked to--Cheney? Then Rove probably got it in a meeting about how to get Wilson, and went on to spread it in ways that have been pretty well chronicled, if you look.

So they may be protecting Bolton, if he was the original source, or someone else close to the VP. And there may well have been a conspiracy under the law, although the principals didn't realize that.

Another point is why Fitzgerald is still going after Cooper, after TIME turned over the notes. (Isn't Olson TIME's lawyer rather than Cooper's personal lawyer? That would make more sense.) Someone at Kos (Armando?) theorized that that is what prosecutors do when they get lied to, suggesting perjury is in the mix.

And what of Miller? It would seem that her involvement is qualitatively different from Cooper's, and involves a call to the WH before Novak printed. Why did she never go public with whatever info she had? Just what WAS her involvement?

So many questions. But I think you are right about Rove and the misdirection play. And I think that if we could ever find out who forged the Niger docs, the whole thing would come together (or unravel, depending on your perspective).

[emptywheel]

Murray Waas is thinking along the lines I am about the Isikoff article.

There are a number of articles which describe Olson as Cooper's attorney. Don't know if he is also Time's attorney.

And I really wonder about Miller, too. Libby has testified, I think, that a journalist told him of Plame's identity. Seems like Miller would be a really good candidate to be that journalist, not least because of her connections at the CIA in non-proliferation. I certainly think Fitzgerald would be able to shred her First Amendment defense in the event of a trial.

[howard]

mimikatz, personally, i think that fitzgerald is after that person you describe: the one who did know that plame was undercover and spread the word internally anyhow....

[emptywheel]

howard

Although he may need to charge Rove with perjury and obstruction of justice first to get there. As well as a few more obstruction charges along the way.

[Fred in Vermont]

>Mimikatz: And what of Miller? It would seem that her involvement is qualitatively different from Cooper's, and involves a call to the WH before Novak printed. Why did she never go public with whatever info she had? Just what WAS her involvement?<

Consider this:  Miller has long been regarded as a mouthpiece for the Iraqi exile community in its push to get the US to invade.  They used her to publish  bogus stories about WMD in Iraq.  Suppose that some people associated with that group had, in the course of a CIA investigation of those people's claims about WMD proliferation and terror links, been debriefed by Plame.  That would be reasonable because proliferation of WMD was still her main area of expertise at  her desk job at  CIA HQ.

Suppose that because of this contact the Iraqi exile community had done some checking around Washington and learned that her husband was the one-time acting ambassador to Iraq.  Or just suppose that someone in the Iraqi exile community who had had her pointed out as a key CIA person for them, and who also had reason to recognize the former ambassador  to Iraq, just happened to see them together as a couple somewhere around Washington. 

So if the Iraqi exile community had come to know who Plame was married to, when ambassador Wilson attacked the Bush administration over WMD claims it might have been tempting for them to leak this fact to a reporter like Miller with whom they had  long established connections.   With the Iraqi exile factor added in this way, the current speculation that it was Miller who told Rove about the Willson/Plame connection seems quite plausible.

This sort of scenario might exculpate Rove from some changes but at the same time open him to conspiracy or perjury charges.  It would also seriously discredit both Miller and the Iraqi exile movement she has such a close relationship with.

[Pete]

Has anyone given any thought, or have any information, as to what role the actual forged Niger documents may play in this whole thing? Josh Marshall blogged about it not so long ago (to get the full story of what he's talking about you'll have to dig through the archives - it's worth it though).

Not to put a tin foil hat on or anything but I'm wondering if Fitzgerald is on to more than just the Plame leaker.