Fitzgerald was long suspicious Rove had hidden evidence; Not swayed by last minute testimony, lawyers say

By Jason Leopold and Larisa Alexandrovna

A few weeks after he took over the investigation into the leak of covert CIA agent Valerie Plame Wilson in early 2004, Special Prosecutor Patrick Fitzgerald had already become suspicious that Karl Rove and Vice President Cheney’s then-chief of staff I. Lewis “Scooter” Libby were hindering his investigation.

In late January 2004, Fitzgerald sent a letter to his boss, then acting Attorney General James Comey, seeking confirmation that he had the authority to investigate and prosecute individuals for additional crimes, including obstruction of justice, perjury, and destroying evidence. The leak investigation had been centered up to that point on an obscure law making it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.

Comey responded to Fitzgerald in writing Feb. 6, 2004, confirming that Fitzgerald had the authority to prosecute those crimes, including “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”

Fitzgerald was concerned that Rove had hidden or destroyed evidence, lawyers close to the case tell RAW STORY. His suspicions may have been right: an email he sent to then Deputy National Security Adviser Stephen Hadley in early July 2003 later proved Rove had spoken to Time magazine reporter Matthew Cooper about Plame—a fact that Rove omitted when he was first interviewed by the FBI.

Whether or not Fitzgerald knew in late January or early February 2004 about the existence of the email Rove sent to Hadley remains unknown. The email did not show up during a search ordered by then-White House counsel Alberto Gonzales in 2003. Gonzales enjoined all White House staff to turn over any communication about Valerie Plame Wilson and her husband, former Ambassador Joseph Wilson, a vocal critic of the Iraq war who accused the Bush administration of twisting prewar Iraq intelligence. Gonzales’ request came 12 hours after senior White House officials had been told of the pending investigation.

Hadley did not respond to repeated requests for comment. Calls placed to the National Security Council were dropped by press office aides.

According to those familiar with the case and earlier reporting by RAW STORY, Fitzgerald had already obtained the cooperation of a key witness, former Deputy National Security Adviser for Vice President Dick Cheney, John Hannah. Hannah agreed to cooperate with Fitzgerald when the special prosecutor uncovered evidence tying Hannah to the leak and threatened to indict him, the sources said.

Hannah gave Fitzgerald the names of some White House officials who knew about Plame Wilson and disseminated her CIA status to reporters and other White House officials, the laywers said. One of the officials Hannah appears to have implicated was Rove, they added. Cheney promoted Hannah to be his assistant national security adviser following Libby’s indictment.

Fitzgerald still looking to indict Rove

Short of a last minute intervention by Rove’s attorney, Special Prosecutor Patrick Fitzgerald is expected to ask a grand jury investigating the outing of CIA agent Valerie Plame Wilson to indict Deputy White House Chief of Staff Karl Rove for making false statements to the FBI and Justice Department investigators in October 2003, lawyers close to the case say.

Rove failed to tell investigators at the time that he had spoken about Plame to Time Magazine reporter Matthew Cooper and conservative columnist Robert Novak, both of whom later cooperated in the case. Novak outed Plame in a July 14, 2003 column.

The Chicago prosecutor briefed the second grand jury investigating the outing last week for more than three hours. During that time, he brought them up to speed on the latest developments involving Rove and at least one other White House official, the sources said. The attorneys refused to identify the second person.

As of Monday, neither Rove nor his attorney Robert Luskin has explained Rove’s misstatements to Fitzgerald’s satisfaction, those familiar with the case said. Eleventh-hour testimony from Time Magazine reporter Viveca Novak—who Rove’s attorney Robert Luskin fingered as a crucial witness in keeping his client out of court—does not appear to have been helpful in dodging an indictment, they added.

A woman who answered the phone at Patton Boggs, the law firm where Luskin is a partner, said Luskin would not answer specific questions about the probe.

Rove is also under scrutiny for allegedly telling his assistant not to log a phone call from Cooper, the sources said. Rove’s assistant, Susan Ralston, provided Fitzgerald with information last month in which she alleged that Rove told her not to log a call from Cooper that was transferred to Rove’s office from the White House switchboard, sources close to the case said. The lawyers added that Luskin and Rove have an explanation for that as well, but declined to elaborate.

Rove’s case hangs on February 2004

Over the past few weeks, the time frame when Fitzgerald became increasingly suspicious—specifically February 2004—has become crucial for Rove. He testified before Fitzgerald’s grand jury that month without revealing he had been a source for Cooper and Novak, saying only that he had shared information about Plame Wilson with other journalists—including Chris Matthews, the host of MSNBC’s Hardball—after her name had appeared in Novak’s column.

In a bid to keep Rove out of Fitzgerald’s crosshairs, Luskin recently told Fitzgerald that he had a conversation with Time Magazine reporter Viveca Novak in February 2004 where she inadvertently revealed that Rove had been a source for her colleague Matt Cooper. Luskin said this prompted an exhaustive search for the Hadley email which was promptly turned over to Fitzgerald and led Rove to change his testimony.

Luskin testified Dec. 2 that the Novak meeting took place in late January or early February 2004, the very month in which Fitzgerald had sought the authority to prosecute officials if they were found to have hindered his investigation into the leak.

Novak, however, testified that she met Luskin in either March or May 2004, those close to the case said. This discrepancy is at the crux of what Fitzgerald is investigating. Rove didn't reveal to the grand jury that he had spoken with Cooper until Oct. 15, 2004.

Luskin has said that Rove did not intentionally withhold information from Fitzgerald or the grand jury about his conversation with Cooper. Rather, he says Rove had simply forgotten about it, and Luskin’s meeting with Novak had jogged his memory.

Before Novak testified in a sworn deposition last week, Rove faced the prospect of being indicted on numerous counts, including obstruction of justice, perjury and making false statements for failing to disclose conversations he had with reporters about Plame Wilson, sources close to the case said. Several reporters close to Novak said they believe Luskin’s decision to draw her into the case was made to keep Rove’s indictment from being handed up on the day Libby was charged.

Rove could be indicted on those counts if Fitzgerald determines that Novak’s testimony did not go far enough in clearing up questions about why Rove did not tell investigators about his conversations with other reporters. Her testimony may, however, shield Rove from more serious charges, attorneys close to the case said.

Novak (who is not related to the conservative columnist Robert Novak, the journalist who first published Plame Wilson’s name and CIA status,) is the latest in a lengthy list of longtime Washington, D.C. reporters who have become embroiled in the leak investigation, and the third to have withheld crucial information from editors about her involvement while still reporting on the story.

In a first-person account Novak posted on Time magazine’s website Sunday about her role in the case, she said she had met with Luskin, Rove’s attorney, for drinks in October 2003. Luskin asked Novak what she was working on for Time and Novak said the Plame Wilson leak.

“Well you’re sitting next to Karl Rove’s attorney,” Luskin said to her, according to Novak’s account.

The two began spending more time together and during the course of several meetings during the first half of 2004, either in March or May, Novak wrote, Luskin had told her that Rove had not been a source for Matt Cooper, Novak’s Time colleague, who had been the second reporter to write about Plame Wilson on July 17, 2003.

Novak said she inadvertently tipped Luskin off to the fact that Cooper's source was Rove. She said she sensed she was being spun by Luskin and her knee-jerk response led to her divulging information that could be used to help Rove escape serious charges.

Following his meeting with Novak, Luskin told Rove that Novak said he was Cooper’s source. Luskin and Rove then did an exhaustive search through White House phone logs and emails to find any evidence that Rove spoke with Cooper.

An email Rove sent to then-Deputy National Security Adviser Stephen Hadley just minutes after his conversation with Cooper in July 2003 turned up, and Luskin said he immediately turned it over to Fitzgerald.

Still, it’s unclear why that email wasn't found when White House counsel Alberto Gonzales ordered all White House staff in October 2003 to turn over emails and other documentary evidence that showed officials spoke with journalists. Moreover, it’s not known why Rove did not change his grand jury testimony to reflect that he had been Cooper’s source until October 2004, some six or eight months after Novak’s meeting with Luskin.