Finally, No Rove Finality

dr. elsewhere here

As promised, I have a few things to share from my “digging,” as Joe so aptly put it. Apologies for the very late posting; this case is complicated in archaeological ways, and the digging is at least as demanding of patience and logic. Putting the pieces of the puzzle together offers similar frustrations and challenges, and must always be understood as a best guess, however educated.

Plus, I have encountered technical difficulties from hell, from browser incompatibilities to complete loss of service due to roadworkers cutting the line for the 4th time in a month. Having lines underground is so aesthetically pleasing that I have some trouble complaining about this, but given that this little project is slated to go on for five more months, the jackhammers and monster trucks have definitely diminished the pleasure somewhat.

So, I finally proceed with belated post, which addresses the some of the background and implications of Robert Luskin's announcement on the 13th that Fitzgerald "does not anticipate seeking charges" against Rove, "absent any unexpected developments." Please note that those words are the absolute maximum substance - or nonsubstance - that can be found in Luskin's carefully crafted statement, which has miraculously and instantaneously been translated for media distribution into headlines reading "Rove cleared!" and "No indictment!" It does not take a linguist to see the verbal disconnect here, but neither does it take a genius to know what the Boy Genius had in mind. More on this point later; on to scrutinizing the dig.

Building on my earlier post, in which I analyzed the waffle wording in Luskin's announcement, let's focus now on the Leopold story about Rove’s indictment and the many reasons we should resist dismissing Jason’s claims out of hand. I’m going to admit here at the outset that I will be doing a lot of speculating, as in logical thought experiments. It can itself look a lot like waffle wording, but because I don’t happen to actually own the actual truth here (like you, all I have is technically second-hand), I think I’m allowed to venture into the waffle world of maybe's and could be's. Luskin, on the other hand, is in possession of the truth about a lot of these matters - but most especially the real message he actually received from Fitz - so when he waffles, you can only assume the real reality is not falling in his favor.

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After analyzing everything surrounding Leopold's story till my eyes are permanently crossed, in addition to the extremely high waffle factor in Luskin’s recent announcement (and most of Luskin’s announcements, actually, since Libby was indicted), I'm strongly inclined to suspect there are far more reasons to believe Jason's basic claim that Rove was indicted than not. Leopold was clearly not the only reporter to be receiving inside info that Rove’s indictment was imminent. In fact, several other reporters were receiving this story, such as Schuster and Matthews of MSNBC. However, it appears their bosses would not approve going forward with the claim of Rove’s actual indictment without public confirmation from Fitzgerald. However, it was patently absurd of these decision makers to assume that Fitzgerald would necessarily confirm Rove’s indictment publicly. Fitz is under no obligation to do so, and unlike the Ken Starr sieve, Fitzgerald recognizes that his role is not to include the media and American public in every step of the investigative and judicial process. His role is to probe and prosecute this case, which may include negotiations, sacrifices toward larger goals, and time. And he is clearly not afraid to take his time, and based on everything we know about Fitz, this is because he is more inclined to do his job right than to deliver a quick injustice.

So let’s look at the timeline, while bearing in mind the importance of the consistency and convergence of the stories that were gathering over the past six months since the Libby indictment. Simultaneously, let us bear in mind the folly of relying on anything Luskin has to say. Rove is, after all, his client, and he is ethically bound to do whatever he can to protect his client’s best interests, short of committing a crime. Spinning the public and the press is not a crime, though one often wonders if it should be. Lying to a Grand Jury and FBI investigators, on the other hand, is a crime.

After Libby was indicted in October, speculation about Rove focused more on his jeopardy than the possibility he might have slipped the noose. In fact, most of the reasoned consideration leaned toward Rove’s becoming a target, especially when Libby's indictment was read; you cannot miss the role of Official A. The AP stated at that time that prosecutors warned Rove they could not guarantee he would not be a target. That perspective was pretty strong across the media. There were leaks of a meeting between Fitz and Luskin taking place in December; Luskin again denied Rove was a target at that time, but he would neither confirm nor deny meeting with Fitz. Then Luskin made the highly unusual move of taking the stand himself to share his side of the convenient Viveca Novak cocktail hour.

In his testimony, Luskin revealed that Viveca had "inadvertently" alerted him that Rove was in Fitz’s spotlight, prompting Luskin and Rove to “find” that “overlooked” and “forgotten” email to Stephen Hadley. This revelation in turn prompted Fitz to call Rove back in for further testimony, an unprecedented fifth appearance before the GJ on the 26th of April. Leopold wrote that same day that Rove had been informed he was a target in the investigation, which actually makes sense. Think about it; Fitz calls your client in to testify for a fifth time? Now, Luskin yet again publicly denied Rove was a target, but again, Luskin will always deny that Rove is a target because he has to protect his client. We should also recall here that Rove’s testimony came just one week after he was relieved of his policy portfolio, a shift that was not really so much announced as press released. And consider the fact that Rove was called to testify this fifth time after Luskin had offered his explanation of why Rove had found that email to Hadley, which refreshed his memory about having spoken to Matt Cooper. Luskin may have hoped this would help Rove, but it looked like grasping at straws to more than just me, especially since the meeting with Viveca took place in the spring, and the email was not shared with Fitz until after Cooper was ready to testify in the fall.

In light of these known facts, then, we can easily speculate that Fitz was likely giving Luskin ample reason to fear the power of an indictment, along with equally ample reason to suggest publicly that it was at least “premature” to identify Rove as a target. With regard to the indictment fears, given the ways in which Rove was forced to claim the growing WH epidemic memory loss defense, and the evidence undermining that defense, it certainly seems unlikely Fitz would feel he held inadequate evidence for an indictment. Especially if we consider the strong possibility that Fitz holds more than he has exposed about Rove in his indictment and filings in the Libby case, and more than has been leaked about testimonies. In fact, Fitz's arguments in the Libby case that reference Rove do suggest he may have an ace up his sleeve; at least Team Libby sure seems plenty nervous he does. Either that, or Fitz's line of questioning of Rove all along, but especially that last fifth time, left perfectly clear how tight the noose actually was around Karl’s flabby neck. In any case, leaks about that three hour testimony were not hopeful for Rove, and in the next few weeks, leaks about particulars in his testimony only supported a bleak picture.

With regard to Rove's being presented by Luskin as a “premature” target, Fitz had been discovering by that time the important role Cheney had played in the entire smear Wilson campaign (and possibly in the cover-up once an investigation was initiated), and he had to want Rove’s acknowledgement of this, and he wanted a guarantee he would get it under oath. So Fitz had to be willing to make a deal. Or, in parlance more comfortable to Luskin’s ear, Fitz might have been willing to redefine the parameters of what was required for “cooperation” in order to at least loosen that rough rope beginning to chafe his client’s triple chins.

So, all in all, there is here ample reason to suspect Rove is, in fact, "cooperating" in such a way that will build Fitz's case against Rove. Let's just take a quick moment to consider the very sly way in which Fitz has used Rove to build support for his case against Libby, and very likely against Cheney, as well. Remember: Rove is not scheduled to testify as a witness for the prosecution, but for the defense. He is on Team Libby's list. But they have been arguing very hard to gain access to Rove's notes and any other documents pertaining to him in order, they claim, to structure and protect their defense. As far as I am aware at this moment, the judge has not ruled on this motion, but the way the arguments went in court, and the way Judge Walton has been ruling on these matters, and the way legal precedent leans in such matters, it is not likely Team LIbby will get their way. As I noted in my earlier post, this puts them in the very awkward position of having to either trust that Rove will not turn on them and put him on the stand, or acknowledge that Rove has incriminating information about Libby's role and drop him as a witness. This point is important as we follow the Libby trial next year; if Rove is dropped, that will clearly tell us a lot.

Ok; back to the recent events and Leopold's articles claiming Rove's indictment.

Just two weeks after Rove's fifth testimony comes Leopold’s bombshell of May 12th that Rove had informed the WH that he would be indicted. That information is actually consistent with what any lawyer would make of a fifth testimony before the GJ, and what we in the public could infer from Rove's downshift in job responsibilities. Then the very next day, Leopold writes that Fitz had obtained an indictment the week of May 10th, and that Fitz read portions of that indictment to Rove in Luskin’s office late into the night of the 12th. Fitz may have been reading portions of a draft of the indictment, emphasizing just what he required for Rove’s continued, um, cooperation. Fitz has accumulated by now a good bit of evidence, much of it known to most of us, but he likely has more, so he could easily play this hand very cagey, only revealing a card at a time until Rove folded (maybe even withholding any power card/s just to keep Fartblossom and his Gasbag lawyer a little sweaty).

Fitz then, according to Leopold, apparently submitted that indictment to the GJ as Sealed v. Sealed on the 17th of May, based on the case number reported on June 12th by Leopold (1:06-cr. 128, which falls between 127 filed on the 16th and 129 filed on the 17th), and based on the fact that Fitz did meet with the GJ on the 17th.

Lest we forget, MSM reporting before and after Leopold’s May stories was increasingly converging on a Rove indictment, both Schuster and Matthews openly making that claim. Here is what Shuster had to say on May 8th:

Well, Karl Rove's legal team has told me that they expect that a decision will come sometime in the next two weeks. And I am convinced that Karl Rove will, in fact, be indicted. And there are a couple of reasons why. First of all, you don't put somebody in front of a grand jury at the end of an investigation or for the fifth time, as Karl Rove testified a couple, a week and a half ago, unless you feel that's your only chance of avoiding indictment. So in other words, the burden starts with Karl Rove to stop the charges. Secondly, it's now been 13 days since Rove testified. After testifying for three and a half hours, prosecutors refused to give him any indication that he was clear. He has not gotten any indication since then. And the lawyers that I've spoken with outside of this case say that if Rove had gotten himself out of the jam, he would have heard something by now. And then the third issue is something we've talked about before. And that is, in the Scooter Libby indictment, Karl Rove was identified as 'Official A.' It's the term that prosecutors use when they try to get around restrictions on naming somebody in an indictment. We've looked through the records of Patrick Fitzgerald from when he was prosecuting cases in New York and from when he's been US attorney in Chicago. And in every single investigation, whenever Fitzgerald has identified somebody as Official A, that person eventually gets indicted themselves, in every single investigation. Will Karl Rove defy history in this particular case? I suppose anything is possible when you are dealing with a White House official. But the lawyers that I've been speaking with who know this stuff say, don't bet on Karl Rove getting out of this.

Pretty compelling analysis.

However, I have to say Shuster’s explanation for the most recent shift in the story away from indictment is far less compelling:

….in going back to all of those defense lawyers today with the exception of Karl Rove's lawyer, who said that he would never be charged, all of those lawyers said that if he had the same circumstances all over again, somebody testifying five times before a grand jury, somebody who had the burden to stop the charges, somebody who had to testify for three and a half hours the last time, and oh, by the way, he had a classification in the Libby case that almost suggested he would certainly be indicted, the lawyers say they would have reached the same conclusion.

The issue, they say, though, is not that prosecutor Patrick Fitzgerald concluded that the case was unwinnable, rather that it was not a slam dunk. And all these lawyers suggested that in a case where you're looking at a public official and whether a prosecutor is going to indict a public official, that prosecutor usually has an extra burden trying to make sure that if they're going to bring this case to trial, they can certainly meet the obligation of beyond a reasonable doubt, and that they are 99 percent certain, not 50-50 because they're dealing with a public official, and you're dealing with the career-making or possibly-losing case if, in fact, you do lose it.

Somehow Fitz just does not strike me as someone who would let concerns about his career future interfere with doing his job. Moreover, it strikes me as particularly odd that Shuster did not even mention the possibility of a deal contributing to this shift.

Or maybe not so odd. Given that several reporters were getting the same stories as Leopold prior to his claim of an actual indictment, and that even after his claim they kept reporting the strong likelihood the indictment was imminent, if not a done deal, one has to wonder if the same sources were working all these reporters and the TO staff were just the only ones (save Wayne Madsen) who ran with the full story. Is it unreasonable to suspect that the MSM folks, having watched what happened to Dan Rather, would be highly cautious and circumspect about running with a damning story about Karl Rove they could not prove as unequivocal fact? Would you want to be on the receiving end of Rove’s rage, even without so much to lose as an entire network news team? Not that I'm letting them off the hook here; I'm just trying to construct a believable scenario to explain why so few in the MSM have so much as whispered anything about the possibility of a deal.

Also, again, lest we forget, the discourse prior to Luskin’s announcement was largely about Cheney’s role in all this. That has to have increased the desperation factor for everyone in the WH, not least of whom would be Rove. All the signals point to a move toward indictment that was tempered significantly by Rove’s fears of and resistance to it, as well as Fitz’s need to exact crucial information from him for his case against those even higher up the food chain. So much of the Leopold trashing has focused on nitpicking Leopold’s details about the “24 business hours” and so forth. But details like this are just not so important in the big picture, which from Fitz's perspective is all about the larger agenda behind the leak of a CIA agent's identity, and now - probably - the conspiracy to deny it and cover it up. He wants evidence and testimony about what that larger agenda was, and - more importantly - whose agenda it was. Rove can answer both those questions, but will do so if and only if he's highly motivated.

Yet, since Luskin’s announcement, the MSM has, with precious few exceptions, behaved as if none of the escalating incriminating fear factors even existed, and no one has even mentioned the possibility of those fear factors motivating a deal. Again, we are well advised to remember that anything coming out of Luskin’s mouth with regard to his client’s status should be taken with chunks of rock salt. Reviewing his many comments to the press (which include a surprising number to some liberal bloggers of late; what's up with that?) reveals not only a gift for gab, but a tendency to push the truthiness envelope way close to the edge, including probable choice and potentially misleading leaks along the way. And again, as Rove’s attorney, he is ethically bound to refrain from disclosing any information about his client’s status that would in any way harm his case. In other words, he canNOT disclose anything about a deal; he has to protect his client. It’s his job. Never forget that.

We should take just a moment to examine a couple of things about the Sealed v. Sealed document. First, this document was acknowledged by others prior to Jason’s mention of it, along with speculation about its role in the Rove case; the document is not Jason’s invention. Second, Luskin’s announcement was made within 24 hours after Jason published his second article referencing this document, this time, in June 12th, including the document's numerical identification and date. Marc Ash says he has it on good authority that Luskin initiated the exchange with Fitz that resulted in whatever message Fitz agreed to send regarding Rove’s status (Luskin merely says he was contacted by Fitz, but who knows if he was calling Luskin back?). Was that exchange initiated in response to Leopold’s claims? Regardless, Ash says, the message was delivered in exchange for Rove’s “cooperation,” otherwise known as a deal, though apparently not by Luskin’s special parsing standards. On that note, it cannot be emphasized enough that however much Luskin might deny a deal, he is compelled to deny it in order to protect his client’s best interests. Likewise with target status.

Third, we need to be cautious – as should TO – about placing too much emphasis on the Sealed v. Sealed document, because it can be always dismissed pretty much at the Prosecutor’s discretion. The Judge is of course required to sign off on any dismissal, but this is easily done, and done all the time. The Prosecutor is the one whose case stands to lose by letting go of an indictment, so judges typically will not question the reasoning. If this happens, if the indictment is ultimately dismissed, because it is sealed, no one would ever know it existed or what it included. Consequently, there is a certain amount of risk if we (especially TO, at this point) weight this document too heavily. In a real sense, if Rove cooperates as Fitz likely required him to do, then the indictment will in all probability evaporate, and we may never have any way of knowing if Leopold’s sources were accurate about it.

Except.

Except, what Fitz required of Rove for him to avoid indictment was extremely valuable to his prosecution of this case; so valuable, in fact, that he appears willing to forego a Rove trial in order to secure it. This point is not just the fulcrum of Fitz's case against Rove; it is the fulcrum of Leopold’s situation, a situation that otherwise appears quite tenuous in light of a potentially dismissed sealed indictment.

The bottom line is this: either Rove fulfills Fitz’s requirement and squeals in a huge way, exposing culpable parties up the food chain (read: Cheney), or the sealed indictment stands. Either way, if Leopold’s sources were telling the truth and Rove was indicted, then the public will eventually know about it, and Jason will be vindicated, because of the nature of the deal Fitz required. Of course, if Rove does not testify Cheney into the hot seat, and Rove is still not indicted, then that will be our clue that Leopold and TO (and others) were led astray. Until that time - and this is my ultimate key point - we really have far more reason to doubt Luskin’s interpretation of events than we do to doubt Leopold’s sources.

So, once more we must exercise patience. No rush to judgment will serve.

Just a few more T’s to cross. Consider reports on the informal, pre-panel vote amongst the Plame panelists in LVNV now almost a month ago; it seems half of those present felt Rove had in fact been indicted. Names were not shared, but one wonders if one yea vote was Joe Wilson's (and hence the reason names were not shared). Now, speculating yet again, I consider that to be potentially useful information, simply because the ambassador might well be in a position to know. He and his wife were undoubtedly among the first individuals interviewed by Fitz in early 04. Wilson also undoubtedly had more reasons than he shared publicly to fantasize about frog-marching Rove, and he just as undoubtedly shared those reasons with Fitz at the outset of the investigation. Wilson has said he has only spoken with Fitz maybe a half dozen times, but he has just as undoubtedly let Fitz know he intends to pursue civil litigation when the investigation is over, and that he has no intention of interfering with that investigation. Given the likelihood that Fitz wants to be assured that none of his key players are sued before he has his way with them, it stands to reason (at least in my feeble little mind) that he might let Wilson know what’s really going on (or at least hint), despite no public announcement but given the public rumors, so that his case is protected. No proof here, admittedly, but converging logic that suggests Wilson may have more information than the rest of us. In any case, so far, no such lawsuit has been filed, and Wilson has only offered an oblique statement that the Rove game is not over.

Finally, a brief glance at some of the liberal bloggers who’ve weighed in on this series of events with regard to Leopold's posts. As a quick aside, I just have to say how few individuals have actually bothered to really scrutinize the details prior to putting in their ha’penny’s worth. Hell, it appears several of them have not bothered to scrutinize much of it at all. I cannot contain these two following reflections on this observation. First, am I the only one who recognizes this same kind of reaction to the 04 vote fraud among a surprising number of liberal bloggers (got that, Manjoo? Kos?), in addition to the predictable MSM? Second, am I the only one who recognizes this very reaction to be precisely what we despise in the MSM, this pompous, overblown, under-researched dismissal, “move along no story here”? Just askin’.

Reactions to Leopold's boldest claims about indictment have been varied, though most bloggers avoided it, and I have to add, somewhat understandably, given its radioactivity level and his own imperfect reputation. As for myself, I prefer to scrutinize the logic at this point, as the notion that Fitz completely let Rove off the hook just thoroughly defies all logic in light of the prevailing evidence. Whatever, several of the more cutting edge bloggers, though, did not take the time to review any of that evidence, or the logic, or even the facts of Luskin's announcement. Avarosis at americablog simply dismissed Leopold’s story, claiming – along with the MSM decision makers – that we would have heard about Rove’s status from Fitz by now. This assumption is just wrongheaded; Fitz is under no obligation to publicize the indictment, and actually has very good strategic reason not to. Kos recognized that Luskin’s wording was “interesting,” but did not investigate the full announcement (relying only on the NYTimes?) that did not include the crucial clause, “absent any unexpected developments.” So much for the skepticism he encourages.

Jeralyn at talkleft seems to print every word that spills from Luskin’s mouth as if it were gospel. As a defense attorney – and I have great respect for what she does – she should know that Luskin cannot say anything that will harm his client’s case. One cannot help but wonder about her sudden lack of scrutiny of Luskin’s finely parsed phrasing of every announcement he has made throughout this entire case, especially since Libby was indicted. Prior to actually talking to him, she seemed more skeptical, and has even said she believes a deal was done (which Luskin then denied, but of course he has to). But Luskin has been talking to her, and that has to be heady.

Daou over at salon.com asks the very pertinent question of why Leopold, of all people, got the story. Well, why should we believe that Jason was the only one who did? Matthews and Schuster both reported imminent indictment, as well, and most respectable newsrooms were painting a grim picture for Rove, at best. There is some courage in Leopold’s putting the story out there, and in TO’s supporting him. But the unfortunate piece of it is that, because Jason had previously exposed his own raw personal history, Rove has made him his own easy target for his evil revenge. I would be willing to bet very good money that Rove and his minions have been pulling on Jason the same kind of smear campaign they pulled on Wilson and Plame. Can’tcha just hear it? Calling reporters and just happening to wonder, "Yeah, it’s so sad, this poor guy with his cocaine habit trying to push this crazy story about Karl. Yeah, gotta wonder what other skeletons he has in his closet." Yeah. And of course, we do have ample evidence this Rovian strategy is working its evil. All you have to do is read Lauria’s op-ed, a perfectly mindless pile of Rovian shill, if ever there was such. Hell, Luskin has now even praised the MSM for being under so much pressure from the "liberal blogosphere" to hang his client. Such strange bedfellows, especially when you consider that the Republicans in Congress voted today to sanction the NYTimes for reporting on Bush spying on our bank records. When you're trying to manipulate the public this frantically, you have to have a whole department to spin hypocrisies like that.

Finally (for now), Booman goes one further than TO in making foolish demands of Fitz. Booman wants the good prosecutor to clear up the question of whether or not he used Leopold to obtain concessions from Rove. Is he freakin’ serious? Right. This is Fitz’s job, to settle a blog dispute and satisfy our curiosity. (Though the notion that Rove maybe got Fitzed - or even Roved himself! - is pretty delicious, is it not?)

With TO insisting that Fitz reveal the truth here, only thinly veiling their real desire to have their own asses saved, we’re not really seeing a great deal of sophistication beyond Fitz himself, even on our side (about the only exceptions being cautions exhibited and encouraged by Christy Hardin Smith and emptywheel). How can we really demand the MSM fulfill their responsibilities if we’re not even doing it? We’re going to have to hold a lot of feets to the fire, including our own. Though the free press is about the truth, it’s not just about seeing who’s right. And though the free press is about exposing abuses of power, it is not necessarily the case that exposing every factoid will achieve that higher goal.

Let’s do keep our eyes on that ball, shall we? Dismissing Leopold's claim of a Rove indictment based merely on Luskin's announcement just seems utterly ridiculous when all the facts are reviewed. And falling into lockstep with the lapdog press by buying into the notion that Rove is completely off the hook contributes to taking all heat off Rove during this most important of election cycles. If the press were really doing their job, they'd be pressuring Luskin for more probing details on the communication he received from Fitz (which of course, Luskin conveniently cannot disclose as Rove's lawyer), and maintaining open and public skepticism about the implications of this latest near-development, especially as it smacks so juicily of a deal (that Luskin just as conveniently cannot acknowledge as Rove's lawyer).

This one ain't over till the Fat Lady sings a duet with Fitz. And take particular note: Fitz remains silent, Libby remains indicted, his trial is scheduled, and the investigation is ongoing. Even Luskin admitted to that. Though also note that he at no point stated that the investigation of his client was over.

This is not even the world of truthiness, folks; this is the full tilt boogeyman world of the rabbit hole. We'd all here in liberal blogoland be well-advised to avoid playing the role of the Mad Hatter and the Red Queen in this script, lest we find ourselves unwittingly (with full spectrum emphasis on the meanings of "wit") shilling Humpty Dumpty Rove's own personal brand of jabberwocky.