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?

[MediaFreeze]

EW

In response to:

"Plus, if Fitz had the email through 2 GJ appearances, why wouldn't he have charged Rove with obstruction."

Why should he? He is going after a conspiracy. His investigation is proceeding. Why tip his hand?

Also, what did he have on Rove? If it is just the contents of the email then all Rove is saying is that he "didn't take the bait." And as I write this I realize this would have been a very powerful motivation for needing to get Cooper's testimony on Rove. Still, all the email said was that Rove didn't take the bait, so maybe Fitz took that at face value, and when he got Cooper's testimony, he realized that there may have been more to the story than that.

This is interesting. If Fitz had the email, would he have thought that Rove was going to be lying to Hadley contemporanously. Maybe Rove's headfake email threw Fitz off.

In response to:

"it doesn't make sense to subpoena Libby without Rove"

Well, at the time, Fitz wanted to get Cooper in to talk about Libby first and formost. Time was weighing a 1st Amendment case which would have (and eventually did) derail the investigation for a year.

[emptywheel]

MF

But the only reason to get Cooper in to talk about Libby first and foremost is if you believe Libby was Cooper's source.

Libby

It's not that I have a problem with Rove lying to Hadley per se. But we know Rove was WHIG. We know he was collaborating with Libby and Hadley earlier in the week. We know he was sharing fully-truthful information with Libby about what he said to Novak the day of or day before he spoke with Cooper and emailed Hadley. We know that later, he had absolutely no problem taking the lead on this.

But you would have him act inconsistently with all these other actions for a reason that is also inconsistent with what we know of Rove. It's certainly possible. But all the evidence we have suggests otherwise.

[emptywheel]

EMEM

I read somewhere--not sure where--that Rove has always had top security clearance, he'd be cleared for this stuff.

Fitz would have had to remove possible explanations for the memory lapse. But again, why not interview Cooper sooner rather than later to test Cooper's version against Rove's?

[ExcuseMeExcuseMe]

EW:

Unless Fitzgerald was prohibited, by the Court's opinion, from even mentioning Rove. In order to reach a ruling that would force the reporters to reveal sources - or get interviewed by the prosecutor - is it possible that the subpeonas were that finely drawn?

Maybe I've screwed up the timeline. Oh, oh I need to go back and look at what was on the subpeona for Cooper.

[MediaFreeze]

EW

Not necessarily. You believe Libby was a source. You are going after a conspiracy.

and...

Maybe, Rove got ahead of the program. Maybe they agreed he wasn't supposed to tell any other reporters until after the Novak story came out. He was in a hurry, wanted to get on with the program, was going out of town and here was a good opportunity to let Cooper know. He figured he'd tell Cooper and Cooper wouldn't scoop Novak anyway since he worked for a weekly. He didn't want to admit to Hadley that he had talked to Cooper about it, but also wanted to make sure that if Cooper asked anyone else about Wilson, they would not think the tip off came from Rove.

[meg]

MF

I've thought that Rove took the call to Cooper as an unplanned oportunity to push the Wilson smear, too.

But, Novak's blabbing to a stranger on the street on July 8th suggests that Novak was told to spread the news around. If blabbing from Novak is a good thing, then why is blabbing from Rove a bad thing? Does Rove blab help or hurt a laundered leak plan?

[Redshift]

One thing occurs to me -- could the subpoena have been for communications (phone logs and email) with Cooper? The email to Hadley was about Cooper, but a search for all email to and from Cooper wouldn't necessarily have turned it up (depending on how the search works.) Just a thought.

The altered email content still doesn't seem plausible to me. My cost-benefit analysis of it would be that it delays exposure of the original email for an indeterminate period of time (possibly till after the election, possibly not). It either contradicts any other copies or backups, or creates a major techie conspiracy to alter them all. The cost is that either way it creates the possibility of a huge smoking gun for evidence tampering that could be discovered at any point that something or someone makes investigators suspicious.

[Prof]

Does anyone know why both AmericaBlog and FireDogLake are down?

At AmericaBlog, I got this:

"Not Found

"The requested URL was not found on this server. Please visit the Blogger homepage or the Blogger Knowledge Base for further assistance. "

As for FDG, my browser just freezes up.

Prof

[Redshift]

Thinking about it further, the one thing that would make it plausible is if the alteration occurred on Ashcroft's watch, when they might have thought they could get away with anything. In that case, though, I'd think they'd just fake what they turned over to investigators, and not alter the content in the email system until it became apparent that a legitimate investigator would be looking at it.

[Redshift]

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.

But remember, all those were badly forged documents. And their use almost always involved making claims about the content of the documents for PR purposes, but not actually showing them to anyone.

Forgeries may be part of the modus operandi of this White House, but convincing forgeries aren't.

[carot]

Here's another scenario:
Rove and the others knew from Iran Contra not to say anything incriminating in emails. So they said things in an elliptical way, and for more details they simply phoned each other up. So Hadley and Rove had talked about Wilson that included the prospect of them taking the bait. Presumably this would be talking to reporters about the subject and steering them to the desired enquiries, but without saying about Plame directly.
If this was the plan, then from frustration with the reporters not understanding fast enough Rove and Libby at least crossed the line. Rove realises this and says in the email he said too much. Rove thinks he has made the email vague (like he always does) so it is a reminder but contains no information, then forgets about it.
Probably he sent the email and then rang Hadley and talked about the situation in the email, which may be discoverable with phone logs. So Rove may have thought his emails were not incriminating by his habit of make them reminders of subjects discussed in phone calls. Then Luskin might have found it later.
Rove might use a government email system on his Blackberry and BCC a copy to a private account for an easy backup. Fitzgerald asked for a search on the government database and Luskin checked the private backup. So Rove may really have forgotten because the emails were designed to be so vague.

[emptywheel]

Prof

Looks like blogger is down--Atrios is down too.

[meg]

I just don't see why Rove would lie to Hadley. If Rove was upset about talking to Cooper, why say anything at all to Hadley? If Hadley was going to find out about the conversation, then Hadley would find out that Rove lied. If Hadley was not going to find out about the conversation, then what's the point of lying?

I can see Rove speaking in code to Hadley, but using welfare reform seems like a big coincidence.

How is the email a CYA? Is it a CYA to the WHIG buds or a CYA to potential investigators? In either case, how does the CYA work?

I can't find a way of looking at the pieces of the Hadley email that we know about and make any sense of it as an original email to Hadley. Maybe there is more that we don't know about that would help.

[MediaFreeze]

Meg

Indeed... if you figure out...

Why Rove lied to Hadley?

you've got the whole thing nailed...

good night...

[Gentleman Jim]

I agree with the notion Rove et al learned from Iran-Contra not to say too much in email. I posted the other day at FDL about how multiple redundancy is built into gov email systems. High security email systems make multiple copies of each generated email, let's say for instance 9 copies plus the 'original'. The 9 copies then have their header info stripped out (no originating info or where it is routed to) and are sent out to 9 servers in encrypted form all over hell's half acre according to a secret complex algorhtim. Essentially no one knows for sure where the copies are except for a handful of uber geeks who must execute a very special 'trap door' search, which requires an elaborate ritual of clearances and supervisors and document trails. The 'trap door' search is VERY dangerous to try and hack because so much of national security could be compromised if it was discovered by agents hostle to US interests.

This is why doctoring or hacking high level gov email is a very foolish thing to attempt. Never fuck with high level email, it has a 'third rail' built-in on multiple-multiple levels.

If Fitz knows this about the gov email system, he could well get a 'trap door' search but only if he knows enough to ask for one and knows what it is capable of retreiving in the gov email system.

On the point that maybe Rove 'Blackberried' on the gov email and BBCed to a private account, I don't think this is possible. NOTHING in the way of electronic communications is allowed outside of secured gov channels at Rove's level of security, especially stuff originating from the WH to the 'outside world'.

I agree Rove et al probably used email as part of the message, the phone to 'complete the transaction'.

"Welfare Reform" could very well be the code phrase Rove and Hadley choose for 'trashing Wilson'. The WH Chickhawks love psuedo miltary lingo. Makes 'em feel all macho and 'tingely' inside.

[pollyusa]

EW

I've got a question about the email I'd love to hear your ideas on. I keep wondering why Luskin was looking through emails at all. I wonder if Luskin thought Fitz had some sort of documentary evidence that Rove had talked with Cooper. This from the 12/03/05 WAPO implies that Rove was asked about Cooper in his 1st appearance.

..Rove's first appearance before the grand jury in February 2004. In that appearance, Rove testified that he did not recall talking to Cooper about Plame. It was not until October 2004 that Rove told the grand jury he recalled the Cooper chat.
12/03/05 WAPO

On the phone logs, I think Fitz did have the WH switchboard logs showing that Cooper called the WH on July 11, 2003. The news articles on Ralston say that the call wasn't logged into "Rove's office telephone logs".

Vandehei says in the 12/03/05 WAPO that 'The e-mail was written from Rove's government account, which investigators searched early in the inquiry.'. It looks like the FBI had Rove's accounts early in the investigation. Vandehei goes on to say that it's unclear why they didn't find the email.

It's clear, from the Waas article, that investigators had something on Rove before Fitz was appointed. Maybe it was the email, maybe something else.

Jeff had an interesting comment over at Needlenose. He repeated your arguement that Fitz probably didn't have the email until after May 2004 and added this:

if Fitzgerald is going to indict Rove, when he unveils the indictment we're going to see a lot more evidence against Rove than just Cooper's testimony. This was the suggestion of the every-present Randall Eliason, I think, at the end of the latest WaPo piece on the matter.

Jeff is referring to the 12/03/05 WAPO referenced above. I never read the "expert" stuff at the bottom of the articles, but I think I will start.

MediaFreeze is doing a great job as a devil's advocate. He's been keeping me busy over a Kos as well. Lots of great questions.

[emptywheel]

Meg

The CYA theory goes like this: Karl Rove knows this is illegal (which we have evidence is false) so wants to pass along his information to Hadley to oversee for the weekend without incriminating himself. He does it in such a way that 1) it is totally unclear whether Plame came up at all, and 2) suggests the conversation was primarily a conversation about another subject. Pretty prescient for Karl, don't you think.

But here's why--besides Karl not knowing this was illegal and Karl being happy to expose himself as pushing this ten days later to Tweety that this doesn't work: Karl is responding to charges that were raised in Late September 2003, not July 2003. It's not until the IIPA violation is raised--and the all-critical issue of intentional and planned leakage--that anyone worried about hiding the topic of conversation. As part of the story Rove and Novak cooked up together (for Novak's October column) they went out of their way to claim the conversation was not primarily about Plame. As did Libby's lies. In other words, it just feels too weird that this email message from July has all the characteristics of things we know to have been invented in September.

Gentleman Jim

Thanks for those details. I'm just about convinced they didn't change the backups. My argument here and in my last post is that--it is senseless to argue that they wouldn't do the electronic fix because it was tough to do without getting exposed, since ALL FOUR of these options are likely to get exposed. I doubt that Fitz would feel any differently about obstruction involving technical fixes than he does about obstruction involving a search term (or some such thing). But your arguments about the security issues involved are pretty close to convincing me that the technical answer is not the right one. Thanks.

Polly

Glad to see you over here--you've got a lot of people convinced that Fitz knew of Cooper's email before AUgust 2004 (which is not what, as I understand it, you're arguing).

How's this for a scenario?

Cooper's phone number appeared in main WH log but not Rove's. So, since Rove was a leading candidate for this in Fall 2003, they asked him if Cooper had talked to him; he said no. Since Libby had confessed to speaking to Cooper, they pursued that more aggressively in questioning in Fall 2003. But there was still a problem--the Time article had cited officials, plural, not official. So they always knew there was one more official out there. So when they subpoenaed in January, they asked for contacts with any possible person at Time who could have talked with an SAO, so they could check if maybe Karl talked to someone else. And they got nothing. Still nothing more on Cooper's call, but also nothing on Dickerson and Calabresi. (Note, the scattershot subpoena for contacts with Time reporters may have been one of of the reasons the TIme newsroom was buzzing about this, because 5 of them were now involved.) Now it doesn't appear (from what we've been leaked) that Karl was asked about Cooper in GJ appearance #1 or #2--the Waas article says it was the FBI investigation that asked him about it. But during that whole time, there would have been an unresolved issue--who was the other SAO for Time's article?

I really don't think Fitz would have backed off the wider subpoena in May unless he thought he had an answer to that question (maybe Cooper made a follow-up call to Rove later on??)

I'm not really satisfied with this scenario. There'd still be two outstanding loose ends (the SAO for TIME, and Cooper's call at WH switchboard). But that's my best guess for now.

[William Ockham]

emptywheel,

You say there is evidence that Rove didn't know that the Plame leak was illegal, but I find that totally unconvincing. He had to know. Libby certainly did. Also, the conversation with Mathews ("Tweety") was after the Novak leak. I think the cooked up story clearly started before September. It is exactly (almost word for word) the story that Woodward tells about his conversation in June and the one Miller tells about her Libby conversation. I'm convinced that the hard evidence we have (the Libby indictment) demonstrates that this cover story was cooked up in June 2003, not September 2003. The conspirators never believed that the reporters would give up their sources. They knew the justice department guidelines about questioning reporters. They knew the rules about grand jury secrecy. Take away Libby's handwritten notes and the case against Libby is fairly weak. You can bet Rove didn't keep any handwritten notes about this. Rove wasn't trying to CYA about perjury or obstruction. He was trying to prevent a criminal conspiracy charge (or a political conspiracy scandal) in June and July 2003. He knew exactly what he was doing and the email was written with carefully.

[gore won]

Emptywheel, big fan here. luv ya luv ya luv ya. Agree with your third scenario about the email. Couple of points. The Repubs have some high class IT guy (remember Manny Miranda?) so I don't think there are that many people in between to alter the email. I've always wonder why Turdblossom emailed Hadley in the first place; I mean Hadley doesn't seem to be that high in the chain of command unless he was detailed to coordinate Plame's outing. Third, the email actually is what I call Rove's Judy Miller moment (you know how she suddenly found those notes after being caught in a lie). Rove's e mail states that Cooper was calling about welfare reform, but no where in Cooper's contemporenous notes or his testimony say he intended to speak to Rove about welfare reform. Snap! (as in handcuffs) Rove has tampered with evidence, produce a phony federal document (which I think is illegal). This whole affair has played the Washington Press Corps elites and has relied strongly upon trusted press 'ho's to protect their sources, substantiate their cover story (i.e. Russert, Cooper, Pincus). What they didn't count on was that only a hack like Robert Novak saw the information significant enough to publish.

[emptywheel]

William, you make some great points, but I disagree with some of the others.

Remember that this leak was normal operations for BushCO except that in this case, they used a person who was protected from their very typical ratfucking. There are numerous cases where they leaked classified information in the past to eliminate an enemy, just not cases where they leaked a classified identity. And while Libby shows signs of caution (what he said to Ari, most importantly, which is interesting because they didn't trust Ari, didn't consider him one of their own), they don't show signs of caution within their own cabal and they didn't show a respect for classified information. (And I wouldn't take what Judy says as a good indicator; her statement makes a lot more sense if you consider the different kinds of statements she makes in it, in which case it appears that she was lying about the June meeting. ALso, I'm increasingly suspicious that Victoria Wilson and Valerie Flame are her covert names--Plame would not have been enough of a cover for her identity; if I'm right, then Libby gave Judy Plame's cover.)

Also, Rove's Tweety comment was on July 21. BushCo's behavior changed radically the next day (all inquiries to Wilson ceased after that day, there were no new reports, the legal investigation was launched three days later), suggesting that's the moment when BushCo realized what they had done. So while the time from 7/14-7/21 (inclusive) is not relevant to the leak, but it's absolutely relevant to understanding the behavior of BushCo wrt the leak (because they had not yet realized, themselves, what kind of doo doo they were in. And it seems clear that Rove is quite happy to be seen to participate in this leak during the period before they realized they were in trouble.

One more point. We don't know what Rove was trying to hide. We don't even know if he also is hiding 10 other emails relevant to conversations with journalists. He may be trying to hide his own guilt on the IIPA charge (I think that quite possible). But it seems to me the email is actually evidence of a conspiracy charge, not evidence against it.

[pollyusa]

EW,

I have been floating the idea that Fitz may have had the email early on. The Waas article leaves no doubt that investigators had something on Rove.

I'm thinking that investigators searched Rove's email account early on and found the email. So investigators know Rove talked to Cooper before the Novak column, but the known text in the email doesn't implicate Rove regarding Plame.

Vandehei has in his WAPO article that Rove was asked if he talked to Cooper in his 1st GJ visit. If they had the email they would have asked, and acccording the Vandehei article "Rove testified that he did not recall talking to Cooper about Plame".

So if Fitz and investigators had the email and the WH switchboard phone log, they know Rove talked to Cooper. The combination of Rove failing to turn over the email and the phone log as well as Rove saying he didn't recall talking to Cooper would have Fitz doubting Rove. At this point Fitz has got to be wondering if Rove is trying to conceal this conversation.

Your argument, why would Fitz narrow the scope of Cooper's testimony to Libby if he had the email has slowed me down.

The original subpoena was for everything regarding Cooper's 7/17/03 story and Cooper reached an agreement that he would testify only about his contacts with Cooper.

I think there are a couple of reasons Fitz allowed the limited testimony.

1. Libby had given an explict waiver, Rove had not.

2. He could always subpoena Cooper again if needed, which he did.

3. Fitz really did think that Libby was Cooper's primary source.

In the bits and pieces we can see in the Libby indictment, it's unclear who first mentions Plame in the Cooper/Libby conversation. I have to think that Libby said that he told Cooper and Fitz believed him.

Cooper's side had to be the one to leak that Fitz was surprised by his testimony that Libby was a confirming source, I don't think that was Luskin spin.

[emptywheel]

My biggest problem with the email scenario is not that Fitz would have known that Rove talked to Cooper before Novak's column, but that he would have known Cooper talked to Rove before Libby. Fitz was clearly working that subpoena to get to Libby (evidence by the fact that he subpoenaed Russert at the same time and evidenced by teh fact that they had conversations to the effect that Libby wanted him to testify) to verify or refute Libby's story that he heard this from journalists. But if he knew that Rove spoke to Cooper before Libby, then his working assumption (it seems to me) would be that Rove was the primary source.

I'll agree that it appears the investigators had something. But I don't think they had something this substantive. If they did (in 2003), then you'd think they'd have pressed it in Rove's first (or at least second, having gotten Rove to lie again) GJ testimony.

Or let me put it another way. If you have one suspect who admits to having some conversations with journalists, and another who you know is hiding evidence of conversations with at least one journalist, which one are you going to suspect said more incriminating things in the conversation with journalists? And if you would conclude, as I would, that the second guy seems to have more to hide, why would go on a full court press against the first guy?

One other thought. A lot of Waas' early work on the suspicion of obstruction had to do with Novak. If I had to guess, I'd say Novak was interviewed in Fall 2003 and flipped in mid-2004, after evidence of his obstruction/perjury was presented. That's a huge speculation, of course, but if you're working the obstruction angle, why hold off on the second part of obstruction till now? Moreover, it seems likely that they were supicious (but not sure) of a Cooper/Rove conversation based on their very well-founded suspicions of Novak, also based on the Fall 2003 conversations.

[carot]

Maybe this is a stretch but here goes. Rove writes to Hadley saying he didn't take the bait. Does this imply that Hadley had told Rove there was danger here, and to not take this bait? If Hadley hadn't told him this then why would Rove mention it to Hadley without explaining what the bait was?
So doesn't this mean Hadley probably told Rove about a line not to cross when discussing Wilson with reporters? But why would Hadley need or want to do this?
This might imply Hadley knew there was a line there, which in turn implies he would have known what the line was. Since this line is Plame's covert status it seems to follow Hadley must have known about Plame, and been aware of the dangers of talking about it.
But Hadley didn't tell Rove not to discuss it, but to not discuss it beyond a certain line, otherwise Rove would not need to talk about bait not taken. So for Hadley to have bothered saying this at all it implies Hadley was directing and schooling Rove to spread the word about Plame. Another possibility is Hadley knew Rove had heard about Plame and was warning him to be careful. But how did Hadley know this? And also how did Hadley know that Rove was intending to discuss Plame with reporters?
I suppose Hadley could have heard about Plame and thought just in case he should warn Rove on the off chance Rove might get in trouble.
But it sounds to me like Hadley would have discussed what the bait was with Rove. Also the line Hadley is talking about (not taking the bait of outing Plame as a covert agent) is the line Mr X didn't cross with Woodward I think.
Also bait implies taking bait to get an advantage and then getting hooked or caught by it. So Rove might have known that the advantage of telling Cooper too much represented an advantage, which in turn implies it was a goal to tell Cooper about Plame. But it also implies knowing saying too much might get Rove caught. Caught though by whom, who is the danger from taking bait, even though the conversation is shielded by a reporter? The only danger I can see is legal action.
Ok, I found my tin foil hat and will stop now.

[William Ockham]

emptywheel,

I'm not pinning anything on Miller's veracity (who would at this point?). Rather, I'm looking at the consistency of the cover story and when it appeared. I agree that leaking classified information to trash their enemies was SOP for the Bush White House (we shouldn't forget Richard Clarke). I know I keep harping on the idea that the conspirators never expected to be confronted with the testimony of the journalists they leaked to, but I think it is the central fact that explains the otherwise inexplicable. When Rove is indicted, perhaps we'll discover that he was a clumsy as Libby in his internal communications, but I don't think so and the email is a powerful piece of evidence for that. The Rove-Hadley email is evidence of conspiracy only if you know what Cooper says they talked about. Combined with Cooper's testimony, it shows that Rove knew then he was doing something dangerous. If Rove had been honest in that email, he would have provided evidence against himself, with or without Cooper's testimony (much like Libby did with his handwritten notes). Whether or not it was intentionally withheld, Luskin knew he had to turn it over or become part of the conspiracy. Faced with turning it over, he spun it to the press as exoneration and hustled his client before the grand jury to "repair" his testimony.

[Redshift]

So when they subpoenaed in January, they asked for contacts with any possible person at Time who could have talked with an SAO, so they could check if maybe Karl talked to someone else. And they got nothing.

That would fit my scenario of failing to find the Hadley email because they subpoenaed contacts with Time reporters, not email about contacts with Time reporters, btw.

[Redshift]

gore won,

The Repubs have some high class IT guy (remember Manny Miranda?) so I don't think there are that many people in between to alter the email.

Miranda was no high class IT guy, just a staffer who looked over a sysadmin's shoulder and saw how to access other people's files. He was able to able to grab the Dem memos because the Senate computer system had no internal security and relied on trust to keep one party from snooping on the other's documents. (Which, amazingly enough, apparently worked until the advent of the modern "decency, laws, and country are all secondary to power and party" GOP.)

[pollyusa]

If they did (in 2003), then you'd think they'd have pressed it in Rove's first (or at least second, having gotten Rove to lie again) GJ testimony.

I think they did ask Rove about Cooper in his 2/04 GJ appearance. Vandehei says this about Rove's 2/04 GJ testimony. "Rove testified that he did not recall talking to Cooper about Plame".

On why Fitz went after Libby first, I think Fitz took that route because of the Libby waiver, why not.. he could always keep coming back for Rove and did.

[Pollyusa]

Just want to say there are some truly excellent comments on this thread.

EW, your explaination of "business as usual" at the WH is fabulous.

I think William Ockham's point about the thinking that the reporters would never testify is well said and probably right. William Ockham's comments are interesting for me because he is looking at the whole picture.

Carot, I like your Hadley/bait theory.

I may be painting myself in a corner on the idea that investigators had the email early in the investigation, but I still think it's likely.

[emptywheel]

polly

Your Libby suggestion is a good one. But can you clarify the timeline. My understanding is that Fitz made the offer to focus on Libby in May or June, then it escalated a level (at which point the Libby offer was technically off the table), and then Libby offered the waiver in August (remember, Stauber portrayed the waiver as the result of his initiative, which means it wouldn't come until Cooper was held in contempt). That is, Fitz made the offer well before Libby offered the waiver. But I'm not sure about the chronology. Then of course, I'm not sure we know the chronology.

I agree, William, your point about the surety that the journalists would never talk is right on the money. I'm not disputing with you, btw, that the email is dishonest (and I also like your idea that Luskin was forced to turn it over--that's sounds like it might be right). I'm just saying the dishonest story it tells is inconsistent with what we know Rove was doing in July, and it is consistent with what we know Rove was doing in September. Here's my logic train:

You assume journalists won't ever testify. So why email at all? If you're concerned about being caught, then you ought not to email about it at all. You ought to call. Nothing prevented Rove from discussing this with Hadley on the phone.

Well, you might say, the email allows you to introduce an excuse for why you accepted Cooper's call (big question--is it worth leaving evidence THAT you spoke to a journalist--and about Wilson!--only to provide some kind of false explanation why you did? Well yes, it does, provided that you're worried this call will be evidence of deliberate leaking and provided you're sure the journalist won't talk).

Except my point is, the Adminsitration was not touting that line (that this leak was not deliberate, not planned) until late September. The story that is consistent with this email all dates to September. Before then, it goes something like this:

June 12-July 21 (willing to offer this leak to reliable--Woody, Novak, Judy, even Pincus!--journalists, willing to corroborate the leak to unreliable journalists). Also, admitted coordinating their leaks openly between Libby and Rove and (there is some evidence) Hadley.

July 21-September 24 "Karl Rove and Scooter Libby had nothing to do with a leak at all."

September 25+ "Scooter and Karl may have passed on the leak, but it wasn't against the law because Plame had already been already outed."

It's only the last "story"--where journalists know of Plame's identity and are all beating down the doors of the WH to verify it--that the "didn't take the bait" makes sense and the importance of a cover story for the call makes sense. Only Pincus' story, that I'm aware of, verifiably includes a case where an SAO "veered" off the topic at hand onto something else. All the rest of those stories (Novak's, Rove's, and Libby's) are pretty demonstrably part of the cover-up that was hatched in September.

Also I can't think of any real evidence that the "journalists know and are trying to verify it" that appears in print before October 1, and in court records with Libby's first interview.

Don't know if you've seen this, but it gives a chronology of what I understand the WH's cover story to be.

[MediaFreeze]

Hi all, great discussion today.

I have three thoughts:

1. If the July 11, 2003 email is contemporaneous we need to be able to come up with some rational for why Rove would have written what he did.

Here's what Rove wrote:

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.

Questions:

a. Why mention welfare reform to Deputy NSC guy Hadley, who could care less about welfare reform?

b. Why say Cooper launched into Niger?

c. Why say "Isn't this damaging? Hasn't the president been hurt?"?

d. Why say "I didn't take the bait?"

e. and finally, why say he had warned Time not to get "too far out in front?"

We know that this is not a fully accurate description of the conversation if we believe Cooper's testimony, but we need a theory for why each of these statements was made.

I agree that these guys did this kind of stuff ala Richard Clark all the time. They have a well oiled smear machine. They probably also have a general wariness about emails. Everyone knows to be careful what you put in emails, because it might be found. We also know that they are running some sort of coordinate program for dealing with Wilson, whether or not they are particularly concerned about the legality of outing Wilson's wife at the time.

So, they plan the project in the bowels of WHIG. They decide that they will get the news out to journalists, but will use a cover story when emailing each other about it that deflects responsibility for the information back on the journalists, who they think will never be cross checked due to press confidentiality. This could be their standard MO for all such operations. In this case, Rove's email to Hadley is in a sort sort of code that also establishes contemporaneous deniablity. What is says is (in reference to the above):

a: Wilson called me.

b. We discussed Niger. Maybe that Cooper brought it up, but also maybe this is standard MO to deflect blame.

c. Isn't this damging... pure bull CYA, again standard MO.

d. Didn't take the bait... Told Cooper the whole story. Mission accomplished. I recognize the Rove said "didn't", but what I suggesting is that Hadley would know that this meant "did."

e. Time not get too far out... Maybe told Cooper not to break the story, since they had determined that Novak would get it first. There is an interesting correllation here to Cooper's testimony:

Owing to my typing, some words were a jumble. For instance, I wrote "don't get too war out on Wilson," when I clearly meant "far out."

So, bottom line, maybe the email is not a special CYA because they know anything about the particular nature of the Plame crime, but rather a fairly standard way they communicate their dirty deeds to one another. This may also imply a little more about the relationship with Cooper. Perhaps Cooper is not being fully upfront when he says he is confused about what the "far out" comment meant.

2. This is about why Fitz was willing to assure Luskin/Rove that he was not a target of the investigation at his Oct. 2004 GJ testimony. And, I like this one, because it fills in another piece of the puzzle. Viveca quotes Luskin on Oct 15:

"My client appeared voluntarily before the grand jury and has cooperated with the investigation since it began," said Rove's attorney Robert Luskin. "He has been assured in writing as recently as this week that he is not a target of the investigation."

Whenever Fitz got hold of the email, provided he believed it to be authentic, he would have no reason to doubt the contents. He had not yet talked to Cooper, so there is no way he would have concluded that Rove was the other source. In fact the email appears to be exculpatory (ie. didn't take the bait). He clearly would like to get Rove's testimony to nail down Coooper's actions during those critical days, but probably thought Rove was in the clear. So Rove's headfake email worked in the sense that it deflected the investigation.

Further, at Rove's October GJ testimony, he does not seem to come clean that he mentioned Wilson's wife. It seems he testifies along the lines of the email. We can suspect this because Cooper discusses his confusion with all the questions about welfare reform, which reflect Rove's testimony.

This is very damning by the way...!!!

How does Rove explain remembering the lie and not the true substance of the conversation? Yikes...

Anyway, it was not until later (WHEN????) that Rove/Luskin begin to come clean with the little fact that Rove did indeed tell Cooper Wilson's wife worked for the CIA. That must have been an interesting moment, because it is only then that everyone must have realized that the email was NOT EXCULPATORY, but rather VERY INCRIMINATING.

3. and now I've forgotten #3... It'll come back to me...

[William Ockham]

emptywheel,

First, thanks for taking the time to work through this. I think there is a simple explanation why Rove sent an email, instead of calling Hadley. Rove was going on vacation. He had no time to play telephone tag. He needed to communicate to Hadley that he (Rove) had done his job, but without leaving any incriminating documentation. I disagree about when with your chronology of the cover story. Here's how I break it down:

May 2003 - Wilson jumps to the top of the WH enemies list. The WMD myth is being exposed by the rather ugly events on the ground in Iraq and here comes a loud-mouthed State Dept. Arabist and CIA tool (at least in the Cheney-Libby view; for Rove, Wilson is just one more enemy) making a bunch of anonymous scurrilous accusations. Cheney-Libby start digging into Wilson's background. The "sixteen words" are suddenly the big issue of the day. Somebody's going to have to take the fall for that and it ain't gonna be the real perps (Cheney, the OSP, and the NSC).

June 2003 - By early June, the plan to discredit the CIA and Wilson takes shape. It's really a two-track strategy. Tenet's going to have to fall on his sword over the sixteen words and Wilson's going to get smeared. The cabal agrees to a typically Rovian smear tactic. He's a member of the Democrat party. He and his point of view don't matter because he's a nobody. He's a liar. His information really supported our point of view anyway. Finally, impugn his manhood. Same thing they did to Richard Clarke. With Clarke, they started whispering that he was gay. Wilson had a hot spy wife, so that wouldn't work, but they could claim she got him the job. That really makes him sound like a pantywaist. [Now, all this is unlikely to make any sense to anybody who reads this blog, but Rove has used this over and over.] Of course, they had a problem, in that the hot spy wife was undercover and they knew it. Somebody (I'm betting on Rove) came up with the winning strategy. If her cover was already blown, Plame would be "fair game". How do you blow her cover, without it getting back to you. You take a two-pronged leaking approach. First, you casually mention to the Court Stenographers (Woodward, Miller, Mitchell?) that Wilson's wife works for the CIA (but don't tell them she's NOC, make them think she's an analyst). You don't intend for them to write a story about Wilson/Plame, you just want them to start talking about it. You know Woodward's not going to be writing a story, he's busy with the Bush hagiography. You just hope he mentions it to Pincus, because Pincus is already on Wilson's trail (remember, they discussed how to respond to Pincus). Miller's not going to be writing anything about at the NYT, but maybe she'll tell an editor or an actual reporter and they'll come asking for confirmation. Maybe Mitchell was supposed to tell Russert.

July 2003 - Wilson's editorial on July 6 seems to have speeded up the timetable. Apparently, the reporters are just too dense. Rove and Libby have to get more proactive. They leak to Fleischer. They start working the phones pretty hard. Rove rings up his old hatchet job partner, Bob Novak, and lays it all out for him. I'm sure they would have preferred to have Cooper or Pincus or somebody more mainstream do the dirty deed, but they had get Wilson, so Novak obliged. The Novak article starts the whole ball rolling (in public, at least). Cooper et. al. confirm the story in Time. David Corn points out what really happened.

August/September - The administration stonewalls the story. They've played this game before and they figure the press will lose interest in it eventually. Wilson knows how the game is played better than most targets though. He keeps the story alive while his allies in State and the CIA work the bureaucracy.

October (starting Sept. 28) The anti-cabal strikes back. The SAO tells Allen and Priest that there was coordinated leak effort. The CIA leaks that they referred to Justice. The administration ratchets up the pressure, outing Brewster-Jennings.

Here's the problem I see with your contention that the cover story was invented after the Novak story. If you assume that, you're assuming that Miller and Woodward have been active participants in the scheme since June 2003.

[MediaFreeze]

Correction...to the above post.

sorry, this is confusing enough without mistakes...

above I meant that the reason for a. Why mention welfare refore, was simply to convey that Cooper (not Wilson, of course) had called Rove, and possibly to leave an ostensible reson for the call in this bogus email CYA SOP.

...still working on remembering #3

[MediaFreeze]

Oh yes #3...

Polly offers a few good reasons why Fitz would agree to limit Coooper's testimony to Libby only:

I think there are a couple of reasons Fitz allowed the limited testimony.

1. Libby had given an explict waiver, Rove had not.

2. He could always subpoena Cooper again if needed, which he did.

3. Fitz really did think that Libby was Cooper's primary source.

I also just wanted to point out that at that time Time Magazine was defending aggessively on First Amendment grounds. If Fitz had pushed for Rove too it might have, and eventually did, delay things for a long time. Fitz was able to get a compromise by limiting testimony to Libby. Since Fitz thought he really needed this Cooper testimony more he made the deal. Remember, if he already had the Rove email, he probably thought it cleared Rove anyway (ie. didn't take the bait). I bet Fitz thought that Libby and someone else where the leakers at this time.

[emptywheel]

Actually, I think MF reminds me of the most compelling reason to believe this email is contemporaneous. Rove said, "don't get too far out on this" and Cooper wrote down "don't get to war out on this." Almost verbatim. I'm still suspicious. But that, to me is more convincing than anything else.

But William, two things. First Judy WAS intended to write a story. She was interviewing people for this in the June 20s range, and she made Libby go back to get better information after the July 8 meeting. She had every intention of writing a story, if her editors would let her.

Also, I don't understand--at all--why Woody and Judy have to be in on this from June (although, I absolutely do think Judy was the recipient of a leak labelled as a leak, with clear instructions about what she should say). I firmly believe Woody got the CIA leak without NOC status (and, frankly, we have no reason to believe Mr. X even knew of the NOC status at that point--the INR memo didn't specify her status. And, yeah, he was dumb, didn't do anything with it. And Judy has been in on this since the coverup (note she said almost exactly the same thing to Taubman that Novak said in his October 1 column, suggesting they both got the same instructions on how to cover this up).

[emptywheel]

MF

You're argument proves the contrary. As I said before, you've got Libby who is honest that he had a conversation (although not entirely about the content of it). And You've got Rove who is hiding it. If you think you can only subpoena one, who do you subpoena? (Hint, not the guy who has been somewhat forthright about it.) You've got two guys who spoke to Cooper and you're looking for the primary leaker. Do you subpoena the guy who spoke to him first, or the guy who spoke to him second?

And perhaps you've got details I don't. But as far as I understand the chronology, Fitz' offer to limit to Libby preceded the waiver--perhaps by as much as 3 months.

[umzuzu]

Did Cooper ever write a welfare reform story?

[MediaFreeze]

EW

Waiver was Polly's point not mine, so I don't think that has bearing.

On the other point. You've got Rove who you know is hiding a document, but it seems to be an exculpatory document. And you've got Libby, who by process of elimination would then be your guy. You go after Libby.

[MediaFreeze]

EW and Polly

I didn't mean for that first point to come out the way it did. I simply don't know the timing on the waiver and was just quoting Polly. I have nothing but amazment at Polly's sleuthing...Cheers!

[MediaFreeze]

I would be interesting to know when Luskin/Rove "found" the email.

On August 23, 2004 Matthew Cooper gave his deposition after Scooter Libby personally waives Cooper from the confidentiality promise. Under agreement, Cooper does not answer questions about sources other than Libby.

But I suppose Cooper said something that pointed at Rove, because on September 13, 2004 the grand jury issues a further and more general subpoena to journalist Matthew Cooper, seeking documents.

Rove teestifies on October 15, 2004. Sometime before this the WH "finds" the email. I wonder when Luskin searched through the thousands of emails and found the nugget....???

What I'm driving at is what could have caused Rove to cough it up?

[carot]

"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 is ambiguous. Is Rove saying to Rove that it might be damaging and the president has been hurt? Or is he relaying that Cooper asked Rove if it is damaging and has the president been hurt? So Cooper may have been wanting Rove to admit Bush was hurt so he could quote that in a story. Rove then might have told Cooper not to get out in front, that is not to try to scoop other reporters on Bush being hurt. The bait may have been trying to bait Rove into defending Bush so Cooper has an SAO to quote in the story.

[MediaFreeze]

Carot

That's brilliant!

"take the bait" could just mean not getting into the impact on W.

"not get out in front" could just be a warning to Cooper (the new guy on the beat) to play the game and do as he is told.

I think you have something there.

Could that reading somehow jive with Cooper's testimony?

Only if the Plame story was sufficiently in circulation at that point so as to not even need to be remarked on. That is "not taking the bait" had only to do with not involving W, everything else including Plame's status was "fair game."

[MediaFreeze]

and, "take the bait" could have been the reason for emailing Hadly... that is, to alert Hadley to that line of questioning. "Isn't the President hurt by this?" So that Hadley would know not to "take the bait" either. Rove is protecting W. That's what he does.

[Libby Sosume]

a. Why mention welfare reform to Deputy NSC guy Hadley, who could care less about welfare reform?

Just context. Cooper (allegedly) used welfare reform as an excuse to talk about Cooper's real interest. As Rove says, it was a "brief heads up" but Cooper "launched into" what he really wanted to talk about: Niger. The fact that the press are paying close attention to Wilson and Niger is important information on the ground.

Cooper doesn't remember talking about welfare reform. But why should he, if it was only chit-chat and an excuse to bring up the Niger story?

b. Why say Cooper launched into Niger?

Again, see a.

c. Why say "Isn't this damaging? Hasn't the president been hurt?"?

Rove is quoting Cooper, but omits the quotation marks.

d. Why say "I didn't take the bait.?"

Because he didn't. He didn't give Cooper a "defensive" response. He redirected Cooper to look at the story from another angle.

e. and finally, why say he had warned Time not to get "too far out in front?"

See d.

All in all, a reasonable report of a press contact, laced with situational "on the ground" info about the where the press may go from here, information provided for Hadley, who probably isn't as in-touch as Rove about the repoorting.

Really, the only substantial untruth is by omission. Instead of asking why it was omitted, maybe we should ask why it needed to have been included. Answer: It may well have been already known by Hadley, therefore not worth repeating (Rove writing in a hurry?).

It is therefore possible that the ambiguous wording and omission turns out to be fortuitous for Rove, because it supports construing the contact with Cooper as innocent.

Once again, I say there is no reason to construct hairy (impossible) scenarios about forged emails. Nor is there reason to wory that the email lets Rove off the hook. It's ambiquous, the other party to the conversation has a different story, and Rove has a reason to lie or misconstrue.

[Libby Sosume]

I will also repeat what I said yesterday: Rove may have been an instigator and may have helped plan the outing (amking him a conspirator), but I don't see him as signing up to do the actual leaking.

He has top security clearance, but NOC identies are in the need-to-know class of secrets. It was information he may have happened to come by -- second hand. It isn't appropriate for him to be seen as spreading it to others. It is better for someone with first-hand knowledge and access to be the leaker. It has more credibility and doesn't look like partisan gunslinging.

That said, he could have leaked (or hinted) out of an overabundance of enthusiasm and gleeful trickstering. But he would have tried to not leave tracks, within or outside the WH.

[MediaFreeze]

LS

All true, but I wonder if that is the interpretation he put on this email and his talk with Cooper when he testified to the GJ on October 15, 2004. Doesn't seem likely, cause it doesn't seem he admitted he told Cooper about Wilson's wife.

[carot]

"Once again, I say there is no reason to construct hairy (impossible) scenarios about forged emails. Nor is there reason to wory that the email lets Rove off the hook. It's ambiquous, the other party to the conversation has a different story, and Rove has a reason to lie or misconstrue."
If my interpretation is correct it still leaves unanswered several points. For example why is Fitz interested in this email and why is Rove so defensive about it? It may be because the email implies perjury and obstruction, but nothing more. Rove may have hidden it because it says he discussed Niger with Cooper, but he told Fitz he hadn't. To be more precise he not only told Fitz he didn't mention Plame but that he didn't mention Niger. So there is perjury. Next is hiding the email which is obstruction, all nothing to do with Plame.
Rove may have often not logged calls to Cooper so that might not be significant.
But we now know Rove did mention Plame to Cooper, but likely didn't mention it in the email because (a) it was no business of Hadley's (b) he was avoiding written evidence of the discussion, or (c) which may be more likely.
(c) is that Rove mentioned it an off hand casual way just like Mr X did and the way Libby may have to Miller. He didn't take the bait by defending Bush but he blurted out something at the time he thought was innocent. For example he might have said Wilson didn't hurt Bush because he was not sent by Cheney or Bush, is not someone they would approve of, he was picked by the CIA to make Bush look bad, and anyway it was nepotism from his wife who didn't you know works in the CIA. So the Plame disclosure may have been no more than Rove, Libby and X trying to expose nepotism from a couple of CIA related Liberals which had to include saying what the nepotism was.
So there was probably no way to expose the nepotism without outing Plame. I suspect there was some nepotism involved because Plame could surely have found someone else for what amounted to a very basic investigation.
It doesn't change much for Rove because the perjury and obstruction would stand separately from espionage charges.

[emptywheel]

umzuzu

Cooper published a welfare reform story in the September 22 edition (published, I think, September 16). Just before, I'm arguing, the time when they were working on the cover-up.

Libby

Your just context story needs to account for the fact that Cooper almost certainly didn't call to talk about welfare reform. There is no way Rove would have taken the call (as he was heading out to vacation) if it were just a story--with no urgency--on welfare reform. So you need to explain not why Rove mentioned it, but why Rove invented it. As I've been arguing, the invention of other reasons for their conversations with journalists is something these guys were doing in September, not July.

carot

Remember that the nepotism line--and Plame's identity--was not the only leaking of classified information they did that week of July. They leaked information from Wilson's CIA report (which was also classified). In fact, the CIA report is what they were trying to declassify, and probably one of the reasons Fitz subpoenaed the July 12 gaggle transcript (that is, Ari leaks about the CIA report there, not Plame). So you can't argue they just had to include Plame to fit their pushback strategy--they proved willing to leak whatever would help them (which is what the WaPo SAO said--they used everything they had).

[Pollyusa]

I am firmly in the camp that believes the email is legit and was written on 7/11/03. I am not sure we know the everything that was in the email since the fact that the email exsisted at all was leaked by Rove.

I am terrible at figuring out why Luskin leaks some of the stuff he does, but in this case I think he leaked the email as damage control shortly after the contents of Cooper's email were made public. I have a feeling Luskin may regret leaking the exsistence of the email if Rove isn't indicted. I bet Hadley wasn't very happy, he likes to keep his head down.

On the Cooper waiver.. EW, you are right that Cooper's waiver was later than Russert's. Here is the sequence:

1. 5/21/04 Russert and Cooper subpoenaed
2. 8/7/04 Russert testifies/ limited to Libby
3. 8/9/04 Cooper held in contempt
4. 8/24/04 Cooper testifies/ limited to Libby

Cooper did get a specific waiver from Libby sometime between 8/9/04 and 8/24/04.
This Columbia Journalism Review article has this:

Matt Cooper talked with Fitzgerald at Libby’s urging,

Libby was telling Fitz that he wanted these people [Russert. Cooper, and Kessler] to testify. Why? who knows, Libby knew Russert at any rate was going to tell a different story entirely.

Cooper really didn't want to go to jail. My guess is that after he read about Russert's waiver, he decided to get one of his own.

Mr. Cooper was one of four reporters who testified in the investigation last summer. All of them said they were satisfied that Mr. Libby had given them earnest and uncoerced permission to talk.

"I personally called Libby about a waiver," Mr. Cooper said, "and he said that if it was O.K. with his lawyer it was O.K. with him."
NYT 7/11/05

Tate had a different story.

Mr. Cooper's statements on Wednesday echoed his rationale for testifying last summer. "Mr. Libby," a statement issued by the magazine at the time said, "gave a personal waiver of confidentiality for Mr. Cooper to testify."

In an interview Friday, Mr. Libby's lawyer, Joseph A. Tate, disputed that.

"Mr. Libby signed a form," Mr. Tate said. "He gave it back to the F.B.I. End of story. There was no other assurance."

At most, Mr. Tate said in a separate interview last year, he had answered entreaties by lawyers for Mr. Cooper and other reporters by repeating what was in the waivers.

"I told them they had nothing to hide and could rely upon the waiver," Mr. Tate said last year.
NYT 7/11/05

[John Lopresti]

Has the Senate Select Committee on Intelligence ever reported a line of investigation into the impact on the lives of other employees of Brewster Jennings other than Valerie. Or is that redacted in Phase I SSCI report; or maybe Reid is going to jawbone SSCI into tracing that story. I wonder if Fitzgerald is on that trail in his researches. Wanna hear a lawerly debate ongoing this week online by some coverup specialists saying Fitzgerald should pack up and go home, and defending Abu G, check LegalAffairs.org's site: a first blush it looks like Katy Harriger is defending FitzG pretty ably, but the debate is wildly erratic; you know lawyers. Just happen to have a soapbox in the trunk. Gather 'round.

[MediaFreeze]

I think carot's interpretation of the Rove/Hadley email is the key.

Let me take one more whack at a theory to fit the facts.

We know that there is a general scheme to discredit Wilson cooking in early July 2003. The idea is to get the word out that Wilson's wife was behind sending him and that neither Cheney or Bush knew anything about it. Cooper talks to Rove of July 11, 2003 and Rove writes the email to Hadley:

"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."

We have been thinking this was intentionally misleading, but Carot's interpretation leads to another conclusion. What Rove is saying here is that Cooper called him, Cooper and he talked about Niger, Plame and the whole story. In this sense the word "Niger" is just a shorthand for the whole story that they are trying to get out. Cooper started asking questions like "Isn't this damaging? Hasn't the president been hurt? But, Rove didn't take the bait. A primary objective was to deflect responsibility or even awareness of Wilson's trip from Cheney and Bush, so "not taking the bait" meant that Rove didn't fall into the trap of talking about Cheney or Bush. Likewise, Rove cautioned Cooper not to get too far out ahead on this, meaning to stay clear of Cheney and Bush in his reporting.

One interesting tidbit in support of this theory is that Cooper writes in his Nov. 7, 2005 Time article Matt Cooper: What Scooter Libby And I Talked About that Libby was particularly concerned about protecting Cheney:

That afternoon, we talked a bit on background and off the record, and he gave me an on-the-record quote distancing Cheney from Wilson's fact-finding trip to Africa for the CIA. In fact, he was so eager to distance his boss from Wilson that a few days later, he called to rebuke me for not having used the whole quote in the piece.

So, to be very clear here. There are two different interpretations of the email. One that has been generally believed, but is false, that on the surface makes the email exculpatory. That is "didn't take the bait" means didn't out Wilson's wife. And two, the real meaning, which is incriminating, that he did out Wilson's wife and "didn't take the bait" concerning Cheney's involvement in the Niger trip.

Now the investigation starts and at the beginning they think they can contain things within the Ashcroft Justice Department, so when they are asked for the first batch of documents Rove withholds the email. He doesn't think he'll get caught, and he knows what they talked about. He may not have even realized that the email has another more benign interpretation. In the worst case he may have figured that if it is turned up later he can just say he missed it.

Anyway, the investigation intensifies and pretty soon the FBI guys find the email. But, everyone interprets the email to mean that Rove is saying he DIDN'T spill the beans about Plames wife. That the email is, in fact, exculpatory.

Rove goes in to testify in February 2004 and he can't remember anything about any conversatiuon with Coooper. He's figuring if they present him with the email, he'll just say he missed it in his search. But, he's got a problem, because he knows what the email actually means, and he also suspects by now that everyone has got it wrong.

People wonder why Fitz wouldn't show him the email at this point and ask him about it. I suspect that Fitz is a crafty poker player and that if he has a piece of information that has been withheld he would be very careful with how he used it. In any case, it appears to be exculpatory.

So at this time Rove has testified he cant remember any conversations with reporters, Fitz has the email which appears exculpatory, even if Rove "can't remember" it. Perhaps the fact that Rove can't remember even reinforces Fitz's opinion that the email is exculpatory.

Now I don't have a good reason why Rove would decide to cough up the email, and go in and correct his testimony. Cooper is deposed on August 23, 2004 and Fitz gets his broader supoena on Sept. 13, 2004 so Rove may have been getting nervous. In any case, he "finds" it and goes in and testifies to meaning #1 on October 15, 2004. That is, he says that he didn't take the bait and tell Cooper that Wilson's wife worked for the CIA. Perhaps he thought he could forstall the investigation. One clue that he limited his testimony to the phony interpretation is that Matt Cooper later discusses his surprise that during Cooper's GJ testimony Fitz spends so much time going over what they discussed about welfare reform. Another clue is that Van de Hai's Dec. 3, 2005 WaPo article Rove Team Cites Warning From Reporter says:

It was not until October 2004 that Rove told the grand jury he recalled the Cooper chat. and

Once found by Luskin, the e-mail was shared with Rove and then quickly turned over to Fitzgerald, the source said. Rove then testified that the e-mail "established that he had in fact had a conversation with Cooper," the source said.

Notice it does not say Rove copped to mentioning Wilson's wife. The first report we can find of this is on Jully 11, 2005:

...Karl Rove spoke with at least one reporter about Valerie Plame's role at the CIA before she was identified as a covert agent in a newspaper column two years ago, but Rove's lawyer said yesterday that his client did not identify her by name.

Rove had a short conversation with Time magazine reporter Matthew Cooper on July 11, 2003...WAPO 7/11/05

In fact on July 4, 2005 Lusking won't characterize the conversation:

Attorney Robert Luskin confirmed that Cooper called Rove in July 2003 but said he's "not characterizing the subject matter of that conversation.CNN 7/4/05

[WTG Polly on these!]

So perhaps Rove makes his big mistake here and just mentions that he talked to Cooper, but not that he mentioned Wilson's wife.

THIS WOULD BE HUGE, because now Rove is lying to the GJ.

Moving along, Fitz finally gets Cooper's notes and testimony in summer 2005 and Cooper says that Rove did give up Wilson's wife. It is at this point that Fitz realizes that the email is not exculpatory, but rather incriminating.

If Carot is right about the email, then I think this goes a long way to clearing things up. It also is very very bad for Karl Rove if he testified to the false interpretation of the email at any point.

[umzuzu]

Nobody took this bait, huh?

Time, July 28, 2003 v162 i4 p31
Pinning the Line on the Man. (Iraq/The Fallout)(Robert Joseph may be responsible for claim about Iraqi efforts to obtain uranium ) Matthew Cooper.
Full Text: COPYRIGHT 2003 Time, Inc.

Byline: Matthew Cooper With Elaine Shannon, Karen Tumulty and Michael Weisskopf/Washington

Robert Joseph is not a household name, but it is just possible that he will become one. Joseph, a senior staffer at the National Security Council (NSC), is the current answer to the question "Who put those 16 words in the President's speech?"

snip

According to a source close to the Senate Intelligence Committee--before which Foley, along with CIA Director George Tenet, appeared last week--Foley insisted that a reference to Iraqi efforts to acquire uranium from Niger be removed. According to the source, Foley claimed that Joseph was "zealous" about keeping it in and "really didn't want to take no for an answer."

snip

Frank Gaffney, a conservative foreign-policy commentator, calls Joseph "one of the unsung heroes of the cold war." A former Administration official who worked with Joseph at the NSC describes him less charitably as "an ideologue."

snip

The White House, however, doesn't like the idea of Joseph's heading to the Hill. A senior Administration official tells TIME that "we're going to continue to work with [Congress], but nobody's testifying. We're ruling out testifying." Robert Joseph's war may be just beginning. --By Matthew Cooper. With Elaine Shannon, Karen Tumulty and Michael Weisskopf/Washington

Article A105630255

[meg]

We seem to have reached an impasse over the creation of the Hadley email. As I understand it, the impasse is a result of having to believe one or the other unfathomable things:

1. The email is not altered. The email makes no sense and contradicts Cooper's testimony.
2. The email was altered. Rove takes a huge chance that he will be discovered.

Please note that for the record I am in the 'email was altered camp'. I believe the following

- the copy of the email given to the investigators was altered keeping the character count the same so that the original email logs match the copy of the email headers
- the official email archived copies are NOT altered and neither are the original email logs
- a slew of techies are not required to accomplish altering the copy given to the investigators. An accomplice, such as Gonzales, could have asked in the context of another criminal iinvestigation about altering emails. There are editors around that techies use to patch binary code or edit other files that must not have their formats changed or introduce meta-data like time-modified or who-modified. These editors are readily available and one could have been used to edit the text of the COPY of the email given to investigators. Also, note, that Gonzales seems to be an accomplice because he was the original email filter for the WH emails.
- Emptywheel has done an excellent job explaining on cost benefit analysis why Rove might be motived to take a huge chance.
- the email still doesn't make a lot of sense, but ew has done a great job of pointing out that the email makes sense in the context of the story of the day when the email was 'found'

As for the 'email is not altered camp', I cannot get by the following:
- the welfare reform bit to Hadley. Why would Hadley care about welfare reform? Why would Cooper give Rove a heads up? Instead of a heads up, wouldn't Cooper ask for comments from Rove? Why did a guy in a hurry to go on vacation take a call about Welfare reform as ew has pointed out?

Comments? Please, please, please keep in mind that I am not advocating that the WH email system was messed with at all.

[Libby Sosume]

General comment:

I am not enamored of theories that would put all the consipirators into a single (metaphorical) smoke-filled room. I don't think everybody had the same motivations, the same game plan, the same view of what's important and what's not, and the same degree or type of complicity in the actual crime.

I think there were at least two, loosely-connected consipatorial groups: The "Rove" Group, and the "Cheney" Group. They were loosely connected by the common goal of "doing something about Wilson". They might also have agreed about some of the things that might be done (leak, spin Nepotism, etc). But beyond that, the coordination was probably informal at best.

I see the White House as "Bush Corporation." All the stuff they do that's so unbelievable if you think of them as elected public servants becomes very believable (and understandable) once you realize that it's a corporation, not a branch of government.

Rove is the marketing VP. So the Rove group's motivation is the same as any marketing department: Push and preserve the Bush brand and "destroy" the competition, using hype, spin, and dirty tricks. (Dirty tricks are okay as long as you don't get caught and the FTC doesn't find out.)

Retribution is one way that has been used to characterize their goal in the Plame affair, but frankly not the best word because it implies punishment. The goal is to destroy, not to punish, because the competition doesn't capitulate to punishment. The competition, if not destroyed, just comes back another day with a new product strategy.

Cheney's crew is the metaphorical R&D department. They are creating the product itself. It's their baby. If you attack their baby, it's personal. Retribution, even revenge, is an appropriate description of their motivation. Dirty tricks are okay, but they don't worry about the FTC, just about getting caught. And since their work is high tech and hence inscrutable to most ordinary folks, they tend to think they won't get caught. And by the way, R&D people think they can do the marketing themselves, but they have better things to do so they have to hire marketeers - whose work, they think, never lives up to the real beauty of their product.

[Many years ago, there was a half-joking story that Microsoft's techies would intentionally put code in each new rev of MS-DOS that would "break" their competitor's products. True or not, that's the kind of dirty trick that comes from R&D, not marketing. Marketing folks might get a chuckle out of it after the fact, but would have officially advised against it, if not stopped it, had they known before the fact.]

So what I'm saying is that to assume a cross-departmental conspiracy, with a single, clear plan, where everybody is on the same page about what's to be done and keeps everyone else in the loop, just doesn't seem realistic to me. I think there were two overlapping plans: On the one hand, the Rove plan, which was "what to do about Wilson," who was tarnishing the Bush brand and putting the lie to all their marketing. The Plame leak was one, possibly useful, tactic.

On the other hand, there was the Cheney Plan, with a somewhat different (but loosely related) objective.

It was not only to protect the GWOT product line, it was also to cover up an earlier crime: the Niger forgeries. And guess what? The marketing department may not even have known about that paricular R&D dirty trick.

I have always thought that the Plame conspiracy was more likely something that came out of the R&D (Cheney) department. They had far greater, and more deeply personal, motivations. They had the same kind of arrogance and fearlessness that R&D people sometimes exhibit.

While Rove clearly knew who Plame was, and may have been fully cognizant of what was going on, I think it's plausible that he would try to keep his own hands clean of leaking the Plame identity and let R&D do the dirty work (and take the rap). Thus, he was circumspect in his communications with Hadley. I think Rove lives in a non-realty world of hype, spin, and lies, so it doesn't surprise me that he would invent stuff to say to Hadley, or not tell the whole story to him. Rove may have been cheering the conspirators on (in his heart), and he may have failed to resist the impulse to help the conspiracy along.

But once the leak was a done deal, he jumped in with both feet ("she's fair game")

[meg]

Libby,

I love your R&D and marketing analogy. Sounds right on to me. I spent many years in a large computer company as a techie and then some time in marketing before going back to being a techie.

I was with you all the way until "Thus, he was circumspect in his communications with Hadley. I think Rove lives in a non-realty world of hype, spin, and lies, so it doesn't surprise me that he would invent stuff to say to Hadley, or not tell the whole story to him."

Why oh why invent stuff to Hadley just for the fun of it? I just can't get there.

[emptywheel]

MF

That's the most convincing description of the unaltered theory I've seen. Now, can you answer the question Meg and I keep harping on--why include the welfare reform story, which we have strong reason is factually inaccurate?

Libby

Like Meg, I really like your analogy. I think your description is right on (except you neglect to deal with WHIG, which included Hadley, Libby, and Rove--what department does WHIG fall under?).

But no matter how much you don't think there was cross-departmental cooperation, there is clear evidence there was. We know that Rove told Libby, accurately, about his Novak conversation either the day before or the same day as he talked to Cooper (he has testified to it under oath). And we know from their own leaking that Libby, Hadley, and Rove were working on something together at the beginning of the week that they claim to be a draft statement for Tenet. Those are facts, what ROve and Libby admit to. I don't get why you keep looking for a theory that flies in the face of these known facts?

[Libby Sosume]

Gosh, so much emphasis on the words, "I didn't take the bait."

I see three or more interpretations:

1. "I know I was supposed to leak Plame's identity, I know I had signed up for the job, and Cooper gave me the perfect opening, but I just didn't do it. I chickened out. I didn't take the bait. No time to talk now, I'm catching a plane. I'll do it when I get back."

2. "Cooper wanted to put me on the defensive about all the stuff Wilson's been saying, and admit that the WH is bleeding, but I didn't take the bait. Instead, I just advised him to not get too far out on the story because there's more to it than he knows. Hope that helps. How's the plan coming on your end?"

3. "You guys better get on the ball with the Plame leak. Cooper just called and while he asking about welfare reform, he quickly switched to his real concern: How does the WH react to Wilson and the Niger controversy? I was sorely tempted to tell him about Plame, but I didn't take the bait. It was your job, so do it. We're running out of time. This thing will soon get to big to contain."

"[What I won't tell you is that I succombed to temptation and did your job for you. Now Cooper knows.]"

I could come up with more variations. The point is, we don't know the backstory, and these five words could have very different but still plausible meanings depending on the backstory of which presumably both Rove and Hadley are familiar. And since Luskin hopes Fitzgerald doesn't know the backstory, Luskin's going to take the most favorable slant of it:

4. "Cooper called about welfare reform or some such thing but he really wanted to know if we are hurting and bleeding because of this Niger story. I didn't take the bait."

[Libby Sosume]

Meg and EW:

I guess It all depends on where Hadley fits in to the scheme of things. It's been my experience that not all people who sit on executive commitees are at the same level of engagement and involvement. And usually there is a division of respionsibilities depending on skills and interest.

If it wasn't Rove's job to do the actual leaking (but he did anyway), that's one scenario. He might lie about the fact that he usurped someone else's role.

If it WAS Rove's job, that's another scenario. (Unlikely in my view).

If Hadley was on the high-level strategy committe by virtue of his job title but wasn't trustworthy enough or didn't have the stomach to be counted on for black ops subcommittee, that's another scenario. Rove might be circumspect about what he says to Hadley in that case. The part about welfare reform was a minor fib to lend plausibility to Rove talking to Cooper without implicating himself as a leaker.

There's no doubt in my mind that Libby was on the special ops team. (Little doubt that Cheney approved the plan.) Beyond that is still a question. I'm not at all certain that just because Karl good at designing bathrooms, he must have been a plumber.

I guess if I'm saying nothing else, I am only saying:

1. As delicious as the idea of Karl-in-legirons may be, let's just be careful about constructing overly-elaborate hypotheses that keep Karl at the center of the crime. Especially [dubious, IMO] theories about patching databases to forge emails. If these guys can't conduct a war competently, what makes you think they can pull off a decent forgery? In fact, they didn't pull the Niger forgery off competently, did they?[heh]

2. My admitted bias, as it were, is my belief that the crime was most probably committed by Cheney and the neocons. It works better. It makes more sense. It fits the personalities and presumed motivations. I can see Karl going along with it, but not not necessarily being at the center of it. Not even wanting to be. So Karl isn't entirely truthful when he writes emails. Is that hard to believe?

[MediaFreeze]

EW

I don't see how they are necessarily in conflict.

On July 25 2005, in "What I Told The Grand Jury", Cooper writes:

A surprising line of questioning had to do with, of all things, welfare reform. The prosecutor asked if I had ever called Mr. Rove about the topic of welfare reform. Just the day before my grand jury testimony Rove's lawyer, Robert Luskin, had told journalists that when I telephoned Rove that July, it was about welfare reform and that I suddenly switched topics to the Wilson matter. After my grand jury appearance, I did go back and review my e-mails from that week, and it seems as if I was, at the beginning of the week, hoping to publish an article in TIME on lessons of the 1996 welfare-reform law, but the article got put aside, as often happens when news overtakes story plans. My welfare-reform story ran as a short item two months later, and I was asked about it extensively. To me this suggested that Rove may have testified that we had talked about welfare reform, and indeed earlier in the week, I may have left a message with his office asking if I could talk to him about welfare reform. But I can't find any record of talking about it with him on July 11, and I don't recall doing so.

and Rove's email says:

"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..."

So in Rove's mind maybe he thought he was taking a call regarding the welfare reform, but Cooper quickly moved into Niger. This may be innocuous, just Rove's way of telling hadley that he didn't initiate the contact.

I think the fact that Cooper left a message concerning welfare reform is kind of corroborating, though I do agree that it seems strange that Cooper says he can't remember any discussion of the subject. Still, Rove says "brief heads-up," so maybe it was very brief and Cooper just doesn't recall, or maybe it was just that Rove thought the call would be about welfare reform, but Cooper launched right in on Niger/Wilson.

It is curious though.

In any case, the thing I think is most interesting is the possibility that Rove adopted the false interpretation of the email in sworn testimony. This would be pretty black and white.

[Libby Sosume]

PS: There's one more big reason I think Cheney team did this. Cheney himself evidently believes that he's not subject to the secrecy laws. He can unlaterally "de-classify" anything if he deems it necessary. After all, he's vice president and the boss of everybody. (Except Bush, of course, but let that speak for itself.) How many times did he leak top secret stuff to the Times so that he could go on talk shows the next day and point to it?

So I'm saying his guys not only committed the crime but didn't beleive they were actually committing a crime!

Whatever Karl is, I don't think he's that crazy.

[meg]

Libby, Libby, Libby

I want to respond to your otherwise wonderful post, but I had to deal with a MAJOR mischaracterization of my position - maybe you were just talking about other's in general.

"Especially [dubious, IMO] theories about patching databases to forge emails. If these guys can't conduct a war competently, what makes you think they can pull off a decent forgery? In fact, they didn't pull the Niger forgery off competently, did they?[heh]"

First, I have NEVER EVER advocated that Rove et al patched a database. I have always proposed that Rove et al patched the COPY of the email given to the investigators. My proposal says that they took the existing email, left the headers alone and kept the same number of characters as in the original. This way, a superficial check of the real email logs would make the altered COPY. Obviously, if the investigators went through the email archives themselves, they could well find a copy of the original, unaltered email.

Please note that the investigators were given emails and other documents after Gonzales vetted them. Presumably, the emails would be copied from the email database onto a digital medium of some sort and given to the investigators. In any case, the investigators would be given copies.

Second, just because these folks are incompetent doesn't mean that they don't try. Your examples, go towards proving that point.

[emptywheel]

MF

There are two pieces of evidence that Welfare reform was never mentioned.

One is Cooper's testimony and contemporaneous notes.

The second is that the call got put through. You don't put calls through to Karl without knowing what you want to talk about, and you don't put calls through that have no urgency or deadline just before Karl goes on vacation.

Remember, IF Cooper did leave a message about welfare reform, Karl never called him back. It wasn't a priority for him (or, alternately, he didn't want to source Cooper).

Also, while we're talking about welfare reform, we probably need to explain WHY this was leaked between the time Cooper's notes were published and when he testified. Fitz seems to have suspected that leak was an attempt to coach testimony. Given that the rest of the email doesn't give any detail worthy of coaching, then the only thing they would have been trying to coach on is welfare reform. Now maybe Luskin was just trying to make Rove look more forthcoming. Maybe. But given the other oddities, it suggests that Karl was trying to coach, which would mean he knew that they didn't talk about welfare reform.

Libby

Let me put it this way. We don't have to make "hypotheses" about Rove being at the center of this. By his own admission, he leaked to Cooper and was at least Novak's confirming source. Those are two of the four people (and for all we know, Rove was also a source for Judy, although THAT's one I wouldn't bet on) known to have received the leak! In other words, we don't have to hypothesize about it, we know Rove was at the center of this.

[emptywheel]

MF

There are two pieces of evidence that Welfare reform was never mentioned.

One is Cooper's testimony and contemporaneous notes.

The second is that the call got put through. You don't put calls through to Karl without knowing what you want to talk about, and you don't put calls through that have no urgency or deadline just before Karl goes on vacation.

Remember, IF Cooper did leave a message about welfare reform, Karl never called him back. It wasn't a priority for him (or, alternately, he didn't want to source Cooper).

Also, while we're talking about welfare reform, we probably need to explain WHY this was leaked between the time Cooper's notes were published and when he testified. Fitz seems to have suspected that leak was an attempt to coach testimony. Given that the rest of the email doesn't give any detail worthy of coaching, then the only thing they would have been trying to coach on is welfare reform. Now maybe Luskin was just trying to make Rove look more forthcoming. Maybe. But given the other oddities, it suggests that Karl was trying to coach, which would mean he knew that they didn't talk about welfare reform.

Libby

Let me put it this way. We don't have to make "hypotheses" about Rove being at the center of this. By his own admission, he leaked to Cooper and was at least Novak's confirming source. Those are two of the four people (and for all we know, Rove was also a source for Judy, although THAT's one I wouldn't bet on) known to have received the leak! In other words, we don't have to hypothesize about it, we know Rove was at the center of this.

[meg]

I think that the Cooper leak was one of opportunity and not part of the original roll-out plan. Going by what the Rovians normally did when planting talking points, they first got their talking points into a major media print article and then put their talking heads on the Teevee to echo-them up.

According to this theory, the leakers would first leak to the print media and then setup the talking heads. Novak, being the print media example, was publishing his article during the next week when Rove was going on vacation. According to news reports Adam Levine was the person responisible for setting up the talking heads for the talk shows.

Now while we have been focusing on the Hadley email, there was another email to Levine right after Hadley spoke to Cooper. And Fitz interviewed Levine again right after Fitzmas when Rove was giving Fitz pause. I have to believe that Rove was setting Levine up to get the talking heads in place while Rove was on vacation.

PS: Libby - I buy your Marketing and R&D line. I don't think that the Wilson smear was a Rove-initiated product although I think he likes to smear and jumped right in to help with glee.

[Pollyusa]

Anyway, it was not until later (WHEN????) that Rove/Luskin begin to come clean with the little fact that Rove did indeed tell Cooper Wilson's wife worked for the CIA.
MediaFreeze

I've been trying to pin down Rove's missing GJ appearance. In doing so I've been looking to see when Luskin admits Rove discussed Plame. I have more work to do on this but here is what I have on Luskin's statements:

1. The Rove/Cooper angle broke when TIME lost it's case in the SC and agreed to release Cooper's notes and email. TIME announced this on 6/30/05.

2. O'Donnell drops the bombshell that Rove is Cooper's source on "The McLaughlin Group" on 7/1/05.

3. Newsweek confirms that Rove and Cooper talked before Novak's column on 7/2/05. Luskin is the source and is admitting that Rove talked to Cooper, but no mention of Plame yet. Note: the Newsweek article is dated as in the 7/11/05 issue, but it was released on the website on 7/2/05.

But in an interview with NEWSWEEK, Rove's lawyer, Robert Luskin, confirmed that Rove had been interviewed by Cooper for the article. It is unclear, however, what passed between Cooper and Rove.
Newsweek 7/2/05

4. On 7/3/05 everybody has the story and Luskin is talking to everyone. Bloomburg, WAPO, and Waas all have essentially the same story. Luskin is spinning so hard here it makes your head hurt. Luskin has still not acknowledged that Rove mentioned Plame.

Rove's lawyer said Rove never identified Plame to Cooper in those conversations. More significantly, Robert Luskin said, Fitzgerald assured him in October and again last week that Rove is not a target of his investigation.

"Karl did nothing wrong. Karl didn't disclose Valerie Plame's identity to Mr. Cooper or anybody else," Luskin said. Luskin said the question remains unanswered: "Who outed this woman? . . . It wasn't Karl."
7/3/05 WAPO

Luskin is so good he had Waas spinning for him in his 7/3/05 post.

5. On July 6th, 2005 Cooper gets his waiver.

6. The 7/10/05 Newsweek [July, 18 2005 issue] story breaks the contents of the email, that Rove told Cooper about Plame. Here Luskin says Rove has testified 3 times to the GJ. Luskin still isn't admitting that Rove mentioned Plame or Wilson's wife.

"Karl Rove has shared with Fitzgerald all the information he has about any potentially relevant contacts he has had with any reporters, including Matt Cooper," Luskin told NEWSWEEK.

A source close to Rove, who declined to be identified because he did not wish to run afoul of the prosecutor or government investigators, added that there was "absolutely no inconsistency" between Cooper's e-mail and what Rove has testified to during his three grand-jury appearances in the case.

7. On July 11, 2005 the WAPO has Luskin inching closer.

"Rove did not mention her name to Cooper," Luskin said.

8. The July 16, 2005 AP is the article where Luskin revealed the existence of the Hadley/Rove email.

9. Cooper testified on July 20th and talked about his testimony on 7/24/05 on "Meet the Press". Luskin as always just ahead of the story finally admits that Rove talked about Plame in the July 23, 2005 WAPO.

Rove has at some point testified that he passed on information about Plame to Cooper, according to two lawyers involved in the case. Rove's attorney, Robert Luskin, declined to say when Rove gave this testimony.
WAPO 7/23/05

I think it's possible that Rove testified in this period, but I don't think what I have so far is proof of that. As I said I've still got some work to do on this. There may be other articles that I haven't found.

I've put this and other information on the email and the GJ in a new Dkos diary. I confess, I'm putting it all in one place so I can find it later on.

[MediaFreeze]

EW

It could be as simple as Rove was told that Cooper was on the line. Rove thought he was calling about welfare reform, but wanted to get the word out about Wilson, so he took the call. I don't think it needs to be more complicated than that.

And, did everyone see's todays News

From today Dec. 7, 2005 CNN, CIA leak prosecutor again goes before grand jury

Rove's legal problems stem from the fact that it was not until more than a year into the criminal investigation that he told the prosecutor about disclosing the CIA status of Wilson's wife to Time magazine reporter Matt Cooper on July 11, 2003.

Rove says he had forgotten the Cooper conversation, which occurred days before Plame's identity was revealed by conservative columnist Robert Novak.

The investigation began June 30, 2003. So this doesn't clear up whether Rove came clean that he outed Wilson's wife at his October 15, 2004 GJ testimony. But it is curious that no report says he DID admit he outed Wilson's wife at then, just that he admitted talking to Cooper. Still the first time I've seen a report that Rove/Luskin admitted that Rove outed Wilson's wife is July 11, 2005 as referenced above.

If anyone can find anything that indicates that Rove came clean about outing Wilson's wife at his October 15, 2004 GJ testimony I'll eat my hat.

[umzuzu]

ew-
can I get you to look at the the July 28 robert joseph story for just a second? I think it's a subplot that ended up as a dud but is this was what Rove (and Hadley) and Cooper were working on under the heading of welfare reform? A different angle from Wilson/Plame so didn't turn up in the search. Pits WH against proteges of Perle (Libby, Joseph)

[Libby Sosume]

Meg, I didn't mean to specifically target what you said, just the whole idea of altering the email archives, as a number of people have suggested.

I agree that they could have tried a superficial forgery. I suggested in an earlier comment that the original document search might not have had much integrity. It's not like the FBI swooped in, held everybody in a room under guard, and did the search themselves using IT experts. It's probable that, like you said, the regular WH IT guys did a search, printed the emails out, put them on the WH attorney's desk for review before forwarding to the investigators. The WH attorney might have even delegated to Karl the job of reviewing his own emails, who knows. I wouldn't put it past this White House.

I could see the original email being omitted in the first batch. Maybe I could see Karl or someone attempting a paper alteration the second time around. But eventually someone would do a serious search, find the original email in the databases or backup tapes, and the jig would be up. It's hard for me to believe anyone would even attempt a complete electronic alteration/fabrication when the email may appear of gosh knows how many backup tapes in off-site storage. That's too improbable, if not impossible, a scenario.

It would only make sense (maybe) to look at that possibility if we (and the Bush people) believed the original email was so incriminating as to bring the whole Bush regime down and expose them all to years of jail time. Which is inconsistent with their cock-sure character.

Sure, the government has the resources to pull off a forgery. But it requires the marshalling and cooperation of too many people, and hence too much risk of someone talking.

[meg]

Libby,

Thanks for clearing up that you were addressing someone else's theory. You said "It would only make sense (maybe) to look at that possibility if we (and the Bush people) believed the original email was so incriminating as to bring the whole Bush regime down and expose them all to years of jail time. Which is inconsistent with their cock-sure character." My first assumption in my post was just that - that the Hadley email was a smoking gun.

Obviously, I have no idea what was in the original email. I just came to the same conclusion that you did - that altering the email would only be worth it if revealing the original email would hurt worse. EW did a great job on cost/benefit analysis.

You said "Sure, the government has the resources to pull off a forgery. But it requires the marshalling and cooperation of too many people, and hence too much risk of someone talking." I am assuming here that you are talking about altering the archives. I don't believe that they did alter the archives. As I noted above, it would only take the original obstructors to implement my scenario.

I think that they hoped that they could get by with a superficial search that checked the email logs only. The email logs match in my scenario.

Now to argue on the other side for not altering, I do admit that we never saw the entire Hadley email. If we did, the email might make a lot more sense. In addition, I agree that we don't know the jargon Hadley and Rove use when conversing on the Plame/Wilson topic on any topic. But none of that helps me buy the welfare inclusion. Polly's timeline re-enforces the email as coaching Cooper as far as I'm concerned.

[meg]

Libby,

Thanks for clearing up that you were addressing someone else's theory. You said "It would only make sense (maybe) to look at that possibility if we (and the Bush people) believed the original email was so incriminating as to bring the whole Bush regime down and expose them all to years of jail time. Which is inconsistent with their cock-sure character." My first assumption in my post was just that - that the Hadley email was a smoking gun.

Obviously, I have no idea what was in the original email. I just came to the same conclusion that you did - that altering the email would only be worth it if revealing the original email would hurt worse. EW did a great job on cost/benefit analysis.

You said "Sure, the government has the resources to pull off a forgery. But it requires the marshalling and cooperation of too many people, and hence too much risk of someone talking." I am assuming here that you are talking about altering the archives. I don't believe that they did alter the archives. As I noted above, it would only take the original obstructors to implement my scenario.

I think that they hoped that they could get by with a superficial search that checked the email logs only. The email logs match in my scenario.

Now to argue on the other side for not altering, I do admit that we never saw the entire Hadley email. If we did, the email might make a lot more sense. In addition, I agree that we don't know the jargon Hadley and Rove use when conversing on the Plame/Wilson topic on any topic. But none of that helps me buy the welfare inclusion. Polly's timeline re-enforces the email as coaching Cooper as far as I'm concerned.

[meg]

Maybe Fitz will give us peace for Fitzmas! If his lugging all those files to the grand jury today means that he is going to indict Rove, maybe he will give us a lovely, detailed indictment like he gave Scooter.

Then we might actually find out what really happened.

[pollyusa]

EW

Here is more on the Cooper waiver/subpoena, I have to look it over again, but at a glance the 9/13/04 Cooper subpoena is broad and not limited to a single source or day.

.. concerning in any way:former Ambassador Joseph Wilson;the 2002
trip by former Ambassador Wilson to Niger;Valerie Wilson Plame a/k/a Valerie Wilson
a/k/a Valerie Plame (the wife of former Ambassador Wilson);and/or any affiliation between
Valerie Wilson Plame and the CIA...

[pollyusa]

Meg,

That's all I want for Fitzmas, a "lovely, detailed indictment"

[carot]

"Remember that the nepotism line--and Plame's identity--was not the only leaking of classified information they did that week of July. They leaked information from Wilson's CIA report (which was also classified). In fact, the CIA report is what they were trying to declassify, and probably one of the reasons Fitz subpoenaed the July 12 gaggle transcript (that is, Ari leaks about the CIA report there, not Plame). So you can't argue they just had to include Plame to fit their pushback strategy--they proved willing to leak whatever would help them (which is what the WaPo SAO said--they used everything they had)."
You may be right but I am talking about what can be proven. The Rove email has an innocent interpretation and I doubt Fitz can prove this explanation is wrong. If he can't prove it wrong then it doesn't incriminate Rove. All the email does is possibly show perjury and obstruction. This is only because Rove didn't mention it.
At best if Rove said he didn't talk about Niger then that is additional perjury. As to what Rove said to Cooper it depends on who you believe because it is one's word against the other.

[carot]

"The second is that the call got put through. You don't put calls through to Karl without knowing what you want to talk about, and you don't put calls through that have no urgency or deadline just before Karl goes on vacation.

Remember, IF Cooper did leave a message about welfare reform, Karl never called him back. It wasn't a priority for him (or, alternately, he didn't want to source Cooper)."
That's pretty thin, to try and deduce why a call got put through to Karl. We don't know if Karl was busy, when exactly he was leaving, whether he usually took messages from Cooper, or even if the receptionist wanted to go to the restroom and didn't want to leave Cooper on hold.
If Karl didn't call him back then that makes it more likely Cooper would call again. If he called once about welfare reform he's likely to call again. Or maybe Cooper never wanted to talk about welfare reform the first time, but was going to talk about Niger when Karl rang him back. He probably knew Karl wouldn't call him back about Niger. If he really wanted to talk about welfare reform he could have called Karl a third time.
So writing a positive story about welfare reform might have been the bait, and Cooper was requesting information as to whether Bush was hurt in exchange. For example, Cooper agrees to write a propaganda piece on welfare reform if Karl tells him more about Bush being hurt by Wilson. If so the bait might have worked if Karl then mentioned Plame.
I think outing Plame was meant to discredit Wilson as a hack who got the job from nepotism not to punish him. It amounts to the same thing as a crime but it makes X's, Rove's and Libby's motivations easier to understand. Typically they try and ruin someone's reputation. In fact bringing up nepotism is typical Rove, as a bait and switch. If the issue becomes nepotism then that gets the attention off Niger. It worked to some degree because the press has talked 10 times more about this nepotism than Wilson's report on Niger.
So Cooper wants to know about Niger and offers bait about a welfare reform promotional story. Karl counters with a bait and switch on nepotism, and doesn't realise Plame is covert. I assume this because he would be too smart to say anything knowing he was outing a covert agent. Later he covers it up with perjury and obstruction and is still liable for espionage.
I think they really believed the trip was nepotism and Wilson had something to hide on this. So alleging nepotism would make Wilson back off, if his wife had done something improper. But outing Plame is a punishment not a warning so it has no effect on making Wilson back off, if anything it makes him mad.
There's an old saying in chess, the threat is stronger than the execution. Alleging nepotism is a threat. Outing Plame is an execution and has no deterrent value.
If they conspired to use nepotism to warn Wilson then that fits as Woodward saying X didn't intend to do anything wrong. Interestingly Woodward was told this but didn't seem to say to X that this might be a crime. He mentions it to Pincus. I don't buy their story, they discussed this and they didn't think of espionage either, just the nepotism angle.
So it was worse than a crime, it was a mistake. At no time after the memo did anyone realise it was espionage until Wilson complained then they lied and obstructed into the current mess.
I cannot believe they would knowingly commit espionage. If they wanted to hurt Wilson then Rove could think up a hundred different ways to ruin him before breakfast. They had no need to pick such a hazardous way.
I don't know if this is right or not, but the motives make more sense. The crimes are the same anyway.

[Libby Sosume]

To answer EW's question:

WHIG is an ad-hoc launch committee of Marketing, Business Development, and R&D managers. It is formed when the product is just about ready for beta, but by then it's too late to actually fix the product. So it's an opportunity for the marketing people discover how much less they got than they had asked for, so they can start figuring out how to market around it. They'll ask the R&D people questions like, "Wel,l if it can't do X, can it at least do Y and can we call that X?"

I can't over emphasize how useful it is to see Bush Corp as such - Bush Corp.