Karl Rove’s fourth appearance before the grand jury could involve inquiry into his discussion in with President Bush about the release of Valerie Plame’s identity as a CIA operative.  While it was known that the President asked Rove about the leak, recent media reports (AP story here and National Journal story here) indicates that the President questioned Rove specifically about his own role in any effort to engineer the disclosure of Plame’s status with the CIA to the media to undermine the position of her husband, Joseph Wilson. Rove denied any involvement to the President, and that was later reflected in the statement of White House spokesman Scott McClellan to the press and the President’s own statement in the investigation.  As this blog noted back on Aug. 12 (here), a false statement to the President could be the basis for a Sec. 1001 charge because the President’s inquiry is a matter within the jurisdiction of the Executive branch.  The questioning of Rove could involve not only what he said to reporters who wrote about Plame, but whether he misled the President.  (ph)

Addendum – Karl Rove’s attorney denies that Rove circulated name "to punish [Valerie Plame’s] husband."  See CNN here.  (esp)

The AP reports (here) that special prosecutor Patrick Fitzgerald has accepted Bush aide Karl Rove’s offer to testify a fourth time before the grand jury investigating the leak of the identity of CIA operative Valerie Plame.  While Rove made the offer back in July, which is when Time reporter Matthew Cooper testified before the grand jury about his conversations with Rove regarding Plame, Fitzgerald only accepted the offer last Friday, the day that New York Times reporter Judith Miller finally testified before the grand jury.  Is there a contradiction in there that Rove (or Fitzgerald) wants to clarify?

More ominously, it appears that Fitzgerald’s acceptance of the offer did not provide any assurance that Rove will not be indicted.  Rove’s attorney, Robert Luskin, had emphasized repeatedly that Rove has not received a "target letter" from prosecutors, but the absence of a letter does not mean that the special prosecutor’s office does not have targets, and Rove may have been notified orally of his status in the investigation.  Moreover, these letters usually are sent in the final stages of an investigation and "invite" the person to testify before the grand jury (without their attorney being present, of course) despite the prosecutor’s statement that there is substantial evidence of the person’s involvement in criminal activity.  As part of the "dance" between prosecutors and defense counsel, the target letter can serve a useful purpose to move along negotiations toward a resolution of the case, but in this situation is it unlikely that Fitzgerald’s office needs to issue such a letter for that purpose when an oral notification would be sufficient.  The targets of the investigation, including other senior administration officials, may well know where they stand, so assertions regarding the lack of official notification of target status are mostly a smokescreen.

Why would Rove agree to testify before a grand jury that may well be asked to return an indictment against him?  Assertion of the Fifth Amendment at this point, after three prior trips to the grand jury, would be equally dangerous for someone in a position like Rove’s because it would be tantamount to an admission of guilt. Look what happens in business when a corporate officer refuses to testify or cooperate in an investigation, and while the President softened his position earlier this year by stating that anyone convicted of a crime would lose his position in the administration, taking the Fifth would create enormous pressure to dismiss the person.  Unlike most cases, in which it is almost foolhardy to appear before the grand jury when there is a reasonable chance it will be asked to indict the witness, in political cases the need to avoid an indictment is particularly strong.  Those in the political arena often have good communication skills, so they think they can persuade a grand jury not to indict.  Thinking back almost twenty years, then-Virginia Senator Chuck Robb appeared before a grand jury investigating him for corruption, and shortly thereafter the grand jury returned a "no bill" and refused to indict him.  While it is a gamble to appear before a grand jury, it may be one worth taking in this case if there is at least the chance of heading off an indictment. If the indictment is inevitable, then the harm is not that great for a person who has appeared three times already. (ph)

When New York Times reporter Judith Miller testified before the grand jury investigating the leak of the identity of CIA operative Valerie Plame, she ended three months of confinement for civil contempt once she received assurances from her source that he truly waived any confidentiality agreement they had.  Special counsel Patrick Fitzgerald appears to have played the key role in prodding I. Lewis Libby,  Vice President Cheney’s chief of staff and one of Miller’s sources, to reaffirm his waiver.  Fitzgerald sent a letter to Libby’s lawyer, Joseph Tate, dated Sept. 12, outlining his position that if Libby truly wished to release Miller from the confidentiality agreement — and thereby provide the key to her jail cell — he could do so with the assurance that any action he took in this regard would not be viewed as obstruction of justice.  Fitzgerald’s letter, which is now publicly available here, provides a detailed review of Libby’s involvement in the investigation, including specific references to interviews and grand jury appearances.  Although the letter was most likely meant to be kept private, I wonder whether the reference to a witness’s appearance before the grand jury violates the secrecy provision of Rule 6(e), even if that information was already known through disclosures by Libby (and Tate).  The Rule does not contain a "public disclosure" exception to the strict secrecy requirement.

The letter is also interesting because of its extensive references to press reports on the positions of Libby and Miller regarding the waiver and their status in the grand jury investigation.  Like most everything else in Washington, this appears to be an example of discussion by leak, e.g. "sources close to the investigation" and the like.  Once again, if any of the information came from Fitzgerald’s office, there is a risk of a Rule 6(e) violation, which could spawn yet another investigation. It would be hard to avoid the irony of an investigation into leaks about an investigation into leaks.   Of course, the publication of Fitzgerald’s letter shows how much this case involves use of the media as a conduit of information in support of one’s position.  (ph)

With the testimony of New York Times reporter Judith Miller complete, at least with regard to her communications with Vice President Cheney’s chief of staff, I. Lewis Libby, special prosecutor Patrick Fitzgerald’s investigation looks largely complete.  The grand jury is scheduled to complete its 18-month term at the end of October, although it can be extended by six-months if there is sufficient necessity — and Chief Judge Thomas Hogan is unlikely to deny such a request.  Nevertheless, the gist of Miller’s testimony was most likely known by the special prosecutor’s staff in advance, so Fitzgerald ought to be able to make decisions about whether to seek charges within the next month or so, and if necessary have the grand jury return any indictment before it expires.

A Washington Post article (here) speculates that Fitzgerald’s staff may be considering a conspiracy charge against senior administration officials who sought to have the identity  and covert role of Valerie Plame disclosed in order to discredit her husband, Joseph Wilson.  If the officials plotted to leak her position as a covert agent, which is a crime, then they could be found guilty of a conspiracy even if no official can be shown specifically to have disclosed the information about Plame to a particular reporter.  The information came from someone, and if an elaborate subterfuge was used to leak it, then it is possible to bring a conspiracy charge.  There would be significant problems with such a prosecution, starting with proving the intent of the administration officials and a criminal agreement.  Vague assertions of a motive to discredit Wilson would not, in themselves, prove the agreement necessary for a conspiracy charge.  The fact that different reporters, speaking to different officials, learned similar information is hardly proof of a conspiracy, particularly in an environment in which reporters compete to obtain information and then try to confirm it with multiple sources. 

Conspiracy theories are always fun for speculation, but as the basis for a criminal charge against public officials accused of forming a secret cabal to manipulate the press, it seems like a bit of a stretch.  Then again, if anyone who was part of such a "conspiracy" came forward with some information (beyond speculation) about an agreement to have Plame’s identity as a CIA covert agent made public, then Fitzgerald would have an important building block for any conspiracy prosecution: someone who was part of the agreement who can explain its operation.  The investigation appears to have reached its denouement, and now the tough decisions have to be made. (ph)