CIA Leak Counsel Announced It Will Not Charge Karl Rove
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JEFFREY BROWN: A nearly three-year criminal investigation linking Karl Rove, the president’s closest political adviser, to the disclosure of a CIA operative’s name effectively came to an end last night when Rove’s lawyer, Robert Luskin, was told his client would not be charged with any wrongdoing.
Luskin said special prosecutor Patrick Fitzgerald notified him, quote, “that he does not anticipate seeking charges against Karl Rove.”
Rove had been a central focus of the probe into whether any administration officials knowingly disclosed the identity of Valerie Plame in an effort to discredit her husband, former Ambassador Joseph Wilson.
Wilson, sent by the CIA in February 2002 to investigate whether Iraq had sought nuclear weapons materials from the African nation of Niger, found no evidence of the claim. Still, President Bush went ahead and asserted the charge in his 2003 State of the Union address.
That summer, Wilson went public with his information, and, soon afterwards, the name of Valerie Plame was revealed in a Washington Post column by Robert Novak. That triggered the criminal investigation.
Fitzgerald focused on whether Rove had leaked the name to another reporter, Matthew Cooper of Time magazine, and whether he lied about having talked to Cooper in grand jury testimony. Rove later told Fitzgerald that he failed to disclose his conversation with Cooper during that earlier testimony because it had slipped his mind.
Uncertainty over Rove’s fate had been hanging over the White House for months, and Fitzgerald’s decision not to pursue charges was seen as welcome news for the administration. Former House Speaker Newt Gingrich.
NEWT GINGRICH (R), Former Speaker of the House: This is the president’s closest adviser, a man who’s been remarkably successful, and allowing him to now go back with new energy and new zest, I think, will be part of revitalizing the White House in a big way.
JEFFREY BROWN: Still looming is the trial of Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff, now the only accused person in the case, battling perjury and obstruction of justice charges. New York Democratic Senator Chuck Schumer.
SEN. CHUCK SCHUMER (D), New York: It’s prosecutor Fitzgerald’s decision only to prosecute if the criminal standard is met, but that doesn’t absolve the White House or the leaker of culpability, and there ought to be punishment for them, as well, and appropriate punishment, even if it’s not a criminal punishment and a trial.
JEFFREY BROWN: Prosecutor Fitzgerald has raised the prospect that Mr. Cheney could be called to testify in the Libby case.
Why was Karl Rove exonerated?
JEFFREY BROWN: And joining us to discuss this investigation are two former independent counsels, Joseph Digenova and Michael Zeldin. Both are now in private practice.
And welcome to both of you.
JOSEPH DIGENOVA, Former U.S. Attorney: Thank you.
MICHAEL ZELDIN, Former U.S. Attorney: Thank you.
JEFFREY BROWN: Mr. Zeldin, why don't you help us first understand more, what was Mr. Fitzgerald weighing in determining what to do with Mr. Rove?
MICHAEL ZELDIN: The question was whether or not it was credible that Rove, in his first appearance, had truly forgotten that he had had conversations with the reporters. You remember he came in, he testified, he said, "I didn't have conversations."
Then, a couple of months later, an e-mail was discovered to Hadley, the national security adviser, deputy national security adviser, and says, "Oh, my, I have now remembered I did have a conversations," and he went back to correct that, saying, therefore, "My first testimony was an inadvertent error. I'm now correcting it."
Any prosecutor, has to weigh, given the central role that Rove played in the instigation of the story, whether it was credible that he had merely forgotten this or whether he tried to cover it up and now, caught, was trying to cover his tracks.
JEFFREY BROWN: And, Mr. Digenova, from the known facts, publicly known facts, did it look like this was a case worth pursuing?
JOSEPH DIGENOVA: Well, I think Mr. Fitzgerald certainly had an obligation to pursue the investigation that he was appointed to pursue. And certainly, in the case of Karl Rove, there has been something which can only be described as a vigorous and thorough investigation with Mr. Rove's five appearances before the grand jury. So I think it's safe to say that Mr. Rove can point to this as an exoneration.
And it's clear that, when you have an obstruction or a potential obstruction in a case, that that's worthy of investigation. But I will say this, because as a former United States attorney, and a former federal prosecutor, and former independent counsel, the coin of the realm for a prosecutor is prosecutorial judgment and discretion.
And I must say that I have a -- I believe that, when it became apparent two months into the investigation after his appointment that there had been no violation of the Agent Identities Protection Act, that is a knowing, willful disclosure of a covert agent's identity, that that would have been a very good time to have shut this investigation down and proceeded to other government business.
Was this a wise investigation?
JEFFREY BROWN: Shut it down altogether?
JOSEPH DIGENOVA: Yes. Once the precipitating act, the alleged disclosure of a covert's agent's identity, was found to be a non-existent violation, that that had not occurred, I think it would have been a good idea, in a time of war, to have moved onto other things.
Now, that is not meant to be a -- I'm just saying that, as a former prosecutor, I believe that one of the things that matters most in preserving the power of the government to investigate is to use it wisely. And I think that it would have been a good idea to have stopped at that point.
JEFFREY BROWN: And what do you think, Mr. Zeldin? Was this a wise investigation?
MICHAEL ZELDIN: Well, Joe knows and I know that it doesn't require there to be an underlying crime committed for the separate crime of obstruction or perjury to have occurred, and that we saw, through the Clinton experience, that there is an important principle in maintaining the integrity of the criminal justice system from people who are presumed or believed to have lied to investigators.
And so I don't agree with Joe. I think that -- firstly, I don't know that for sure the covert statute was not triggered. But, assuming that it was, if there was a belief by Fitzgerald that there was an intentional obstruction or intentional lie, I do believe he had an obligation to continue the investigation.
JOSEPH DIGENOVA: I...
JEFFREY BROWN: And, by the way, you said that as though that was fact, that the covert part of this was not -- was clear within two months. I mean, is that true? I'm not sure that that's been resolved.
JOSEPH DIGENOVA: Well, we know this: He hasn't charged anybody with a violation of that statute. And since this appears to be the end of the road with the closing of the case on Rove, that appears to be what, will be the historical fact.
But let me just say this, also: But for the continued investigation of the alleged obstructions -- and Mr. Libby is presumed innocent until he's convicted by a jury -- the press never would have been confronted with the difficult decisions they had to make about whether or not they were going to reveal their sources and go to jail not to reveal them.
That constitutional confrontation, in my opinion, was absolutely unnecessary, since there was apparently no violation of the underlying statute to reveal the identity of a covert officer.
Is the investigation over?
JEFFREY BROWN: Where do you think we are now? Does this appear to be the end of the investigation?
MICHAEL ZELDIN: As far as we know, Rove and Libby were the only two targets, people of whom the grand jury had an interest and possible indictment interest in. And, therefore, probably it is the end of the case, save for the trial of Lewis Libby.
So, yes, in that respect, this probably is the end of that aspect of the investigation.
But Fitzgerald, and I think he's done -- contrary to Joe's belief -- in some respects, I think he has done a very credible job. He's been very conservative, and cautious, and protective of Karl Rove's future by being studious in bringing him back in and giving him a chance to explain.
I expect that Bob Luskin would have appeared a dozen times before the grand jury to get this outcome. And so I think that, rather than there being a so-called rush to judgment, I think that Fitzgerald did a great job with Rove, and Rove should be very thankful he has a prosecutor as studious and careful as Fitzgerald.
Many people would have said, "Hey, look, when the vice president and all these guys flew back from North Carolina," as described in the Libby indictment, and said, "We've got to put an end to this Wilson story," and then, all of a sudden, there's talk with the press and a lot of conversation about this being bad and this being nepotism and all that sort of stuff, that you could have, if you were an aggressive prosecutor, either easily cobbled together a conspiracy charge and brought all of these guys in.
But this guy didn't do that, and I think that's to his credit and to the credit of the criminal justice system.
JOSEPH DIGENOVA: Well, I must say, I think the decision not to indict Karl Rove was not only professionally done but absolutely necessary, apparently, based on the evidence. But I must say that I will tell you that locking up reporters is pretty aggressive.
And at the end of the day, this case will be remembered for one thing -- not that Karl Rove was exonerated, or that Scooter Libby was indicted, but that a reporter went to prison over a non-violation of a federal statute.
And when all is said and done, the thing that will be remembered about this case is that the reporter's privilege, which was thought to exist in some gray form out there in the ethos, is now dead as a doornail, because of what I consider to be an overly aggressive investigation which went to the point of locking up a reporter for what I believe to be an insufficient legal justification.
The future trial of Lewis Libby
JEFFREY BROWN: But we do have a trial coming with Lewis Libby.
JOSEPH DIGENOVA: Yes.
JEFFREY BROWN: And in that case, Karl Rove still might be a witness, is that correct?
MICHAEL ZELDIN: Sure, absolutely. If...
JEFFREY BROWN: Given what he's said in all of these five appearances?
JOSEPH DIGENOVA: Absolutely.
MICHAEL ZELDIN: Libby's defense essentially is going to be sort of what Rove's defense was, which was that "I didn't purposefully lie. This was an innocent mistake of memory."
But if we can go back to Joe's point, Joe is of the mind -- and I credit his legal abilities, as much as any lawyer in the country -- he is of the mind there wasn't a violation of this statute. I'm not convinced that there was not a violation of this statute. The fact that it hasn't been charged means that it wasn't charged, not that it wasn't violated.
And when you have a reporter who has evidence about the possibility of a violation of a statute as serious as this, then I'm not sure that it's terribly wrong to go after the reporter's privilege, in that circumstance.
In the case that Joe and I did together, the passport investigation, we had a similar decision to make. This underlying event in our case was whether someone lied about searching Bill Clinton's passport.
We collectively decided that that was not worth pursuing the reporter's privilege over, and we let it lie. In this case, as Joe says, at a time of war, where there's a facial violation of the statute, and a prosecutor is investigating whether people were obstructing justice around a very critical basis for us to go to war, I don't think that they're wrong to forward with this.
JEFFREY BROWN: Let me ask you both one more thing, and putting it in a larger context, because the special prosecutor role has been contentious for a long time, does this case suggest to you that this is a -- that there is a good way to do it, or does it show that we need to once again look for other approaches?
JOSEPH DIGENOVA: Well, I don't think -- I think what we should do is we should use the Department of Justice, which we have, to investigate cases. The fact that there may have been a potential conflict of interest here, because John Ashcroft knew people in the White House, which is why he rescued himself from this case originally, and why Mr. Comey who then became acting attorney general decided he didn't want to have anything to do with supervising the case, so he made Mr. Fitzgerald literally the acting attorney general with no supervision.
That is a terrible mistake. It should never happen again. No prosecutor should be unsupervised. We let the independent counsel statute lapse; that is a very good thing. That statute was a disaster. It beguiled -- just it hurt various presidents of both parties. It should never happen again.
JEFFREY BROWN: All right. And a last word, quick last word?
MICHAEL ZELDIN: I like the independent counsel statute, and I think that, were there an independent counsel statute in this case, what we would get from this is a final report from the prosecutor detailing all of his findings, which answered a lot of Joe's question about whether there was a violation of statute; did Rove make an innocent mistake? But we'll never know that now, because we have no independent counsel statute.
JOSEPH DIGENOVA: And there won't be a report, because it's illegal to issue one now.
JEFFREY BROWN: All right, Joseph Digenova, Michael Zeldin, thank you both very much.
JOSEPH DIGENOVA: Thank you.