Conspiracy and Obstruction of Justice

From Holden:

Another blockbuster from Murray Waas on the Plame case.

On September 29, 2003, three days after it became known that the CIA had asked the Justice Department to investigate who leaked the name of covert CIA officer Valerie Plame, columnist Robert Novak telephoned White House senior adviser Karl Rove to assure Rove that he would protect him from being harmed by the investigation, according to people with firsthand knowledge of the federal grand jury testimony of both men.

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From Holden:

Suspicious that Rove and Novak might have devised a cover story during that conversation to protect Rove, federal investigators briefed then-Attorney General John Ashcroft on the matter in the early stages of the investigation in fall 2003, according to officials with direct knowledge of those briefings.

[snip]

Sources said that Ashcroft received a special briefing on the highly sensitive issue of the September 29 conversation between Novak and Rove because of the concerns of federal investigators that a well-known journalist might have been involved in an effort to not only protect a source but also work in tandem with the president’s chief political adviser to stymie the FBI.

Rove testified to the grand jury that during his telephone call with Novak, the columnist said words to the effect: “You are not going to get burned” and “I don’t give up my sources,” according to people familiar with his testimony. Rove had been one of the “two senior administration” officials who had been sources for the July 14, 2003, column in which Novak outed Plame as an “agency operative.” Rove and Novak had talked about Plame on July 9, five days before Novak’s column was published.

Rove also told the grand jury, according to sources, that in the September 29 conversation, Novak referred to a 1992 incident in which Rove had been fired from the Texas arm of President George H.W. Bush’s re-election effort; Rove lost his job because the Bush campaign believed that he had been the source for a Novak column that criticized the campaign’s internal workings.

Rove told the grand jury that during the September 29 call, Novak said he would make sure that nothing similar would happen to Rove in the CIA-Plame leak probe. Rove has testified that he recalled Novak saying something like, “I’m not going to let that happen to you again,” according to those familiar with the testimony. Rove told the grand jury that the inference he took away from the conversation was that Novak would say that Rove was not a source of information for the column about Plame. Rove further testified that he believed he might not have been the source because when Novak mentioned to Rove that Plame worked for the CIA, Rove simply responded that he had heard the same information.

[snip]

Rove, according to attorneys involved in the case, volunteered the information about the September 29 call during his initial interview with FBI agents in the fall of 2003.

[snip]

Foremost among the reasons that federal investigators harbored suspicions about the September 29 conversation was its timing. Three days earlier, NBC broke the news that the CIA had asked the Justice Department to launch a probe into the leaking of Plame’s identity. During the noon news briefing at the White House on September 29, various reporters asked spokesman Scott McClellan repeatedly whether Justice was indeed investigating the Plame leak.

“If someone leaked classified information of the nature that has been reported, absolutely, the president would want it to be looked into,” McClellan responded. “And the Justice Department would be the appropriate agency to do so.”

In fact, Justice was already preparing to announce such a criminal probe, and the department made the formal announcement the following day, September 30.

[snip]

A second reason that federal investigators were suspicious, sources said, is that they believed that after the September 29 call, Novak shifted his account of his July 9, 2003, conversation with Rove to show that administration officials had a passive role in leaking Plame’s identity.

On July 22, 2003 — eight days after the publication of Novak’s column on Plame — Newsday reporters Timothy Phelps and Knut Royce quoted Novak as telling them in an interview that it was White House officials who encouraged him to write about Plame. “I didn’t dig it out, it was given to me,” Newsday quoted Novak as saying about Plame. “They thought it was significant. They gave me the name, and I used it.”

If Novak’s interview with Phelps and Royce was accurate, sources said, it suggests that Rove was actively involved in trying to expose Plame’s CIA job.

Novak did not speak publicly on the matter again until September 29 — later on the same day as his conversation with Rove in which he assured the president’s chief political aide that he would protect him in the forthcoming Justice Department investigation. What Novak said publicly was different from the earlier account in Newsday:

“I have been beleaguered by television networks around the world, but I am reserving my say for Crossfire,” Novak said on his own CNN program, which is no longer on the air. “Nobody in the Bush administration called me to leak this. In July, I was interviewing a senior administration official on Ambassador [Joseph C.] Wilson’s report [on his Niger trip], when [the official] told me the trip was inspired by his wife, a CIA employee working on weapons of mass destruction. Another senior official told me the same thing.

“As a professional journalist with 46 years’ experience in Washington, I do not reveal confidential sources. When I called the CIA in July, they confirmed Mrs. Wilson’s involvement in a mission for her husband on a secondary basis, who is — he is a former Clinton administration official. They asked me not to use her name, but never indicated it would endanger her or anybody else.”

In explaining the discrepancy between what he told Newsday a week after he outed Plame and everything he said later regarding Plame, Novak has said that Phelps “badly misquoted” him. Phelps, who is Newsday’s Washington bureau chief, denied that, saying he took accurate notes of his interview with Novak and reported exactly what Novak told him.

[snip]

A third reason that investigators are said to be concerned about a possible cover story was the grand jury testimony of both Novak and Rove about their July 9, 2003, conversation. On that day, Novak was still reporting for his July 14 column.

Novak and Rove have testified that it was Novak, not Rove, who raised the subject of Plame’s CIA job and Wilson’s trip to Niger, according to people familiar with the testimony of both men.

Rove has testified that he simply told the columnist that he had heard much the same information about Plame, which perhaps was nothing more than an unsubstantiated rumor. Novak’s account of the July 9 call matched Rove’s. Investigators were suspicious that, if this version was true, the columnist would have relied on Rove as one of his two sources to out Plame as an “agency operative.”

Ashcroft was advised during the briefing that investigators had strong reservations about the veracity of the Novak and Rove accounts of the July 9 conversation. If Rove had simply said that he heard the same information that Novak did, investigators wondered why Novak would have relied on such an offhand comment as the basis for writing the column. Investigators also wondered why Novak had not at least asked Rove about what else he knew about Plame, sources said.

[snip]

Rove and Novak, investigators suspect, might have devised a cover story to protect Rove because the grand jury testimony of both men appears to support Rove’s contentions about how he learned about Plame. Rove has testified that he did not learn that Plame was a CIA operative from classified information, that he was not part of a campaign with Libby or other White House officials to discredit Wilson or out Plame, and that any information that he provided Novak and Cooper about Plame’s CIA job was only unsubstantiated gossip.

According to sources, Rove told the FBI and testified to the federal grand jury that he first heard that Plame worked for the CIA from a person whose name he could not remember. That person, he said, might have been a journalist, although he was not certain. Rove has also said that he could not recall whether the conversation took place in person or over the telephone.

Rove has testified that he heard more about Plame from Novak, who had originally called him on July 9 about an entirely different matter. It was only at the end of their conversation that Rove heard that Plame worked for the CIA and had some role in sending her husband on his CIA-sponsored trip to Niger, Rove has testified. Having been told this information by Novak, Rove told the FBI, he simply said he had heard the same thing.

Rove told the FBI that on July 11, 2003, two days after his conversation with Novak, he spoke privately with Libby at the end of a White House senior staff meeting. According to Rove’s account, he told Libby of his conversation with Novak, whereupon Libby told him that he, too, had heard the same information from journalists who were writing about the Niger controversy.

Rove has testified that based on his conversation with the first person he had spoken to (whom he cannot identify), what Novak told him, and what Libby said, he had come to believe that Plame might have worked for the CIA.

[snip]

On July 11, 2003, the same day Rove says he spoke to Libby, Rove told Time magazine’s Cooper that Plame worked for the CIA. Although Rove has said he has little recollection of his conversation with Cooper, he has testified that similar to his conversation with Novak, he passed along to Cooper the same rumors about Plame he had originally heard from journalists.

[snip]

As of now, it appears unlikely that Fitzgerald will bring charges related to the September 29 conversation, according to Richman and other legal experts. Even if the prosecutor and his investigative team conclude that Rove and Novak did indeed devise a cover story to protect Rove, it is simply too difficult to prove what happened in a private conversation between two people.

[snip]

“It’s possible that prosecutors would view their [September 29] conversation as the beginning of a conspiracy to obstruct justice, given that they had reason to believe that an investigation would soon be under way,” says [Dan Richman, a law school professor at Fordham University and a former federal prosecutor for the Southern District of New York]. “It’s even more likely that this conversation would help prosecutors shed light on Rove’s motivations and intent when he later spoke to investigators.”