Federal prosecutors have accepted an offer from presidential adviser Karl Rove to give 11th hour testimony in the case of a CIA officer’s leaked identity but have warned they cannot guarantee he won’t be indicted, according to people directly familiar with the investigation.
The persons, who spoke only on condition of anonymity because of grand jury secrecy, said Special Prosecutor Patrick Fitzgerald has not made any decision yet on whether to file criminal charges against the longtime confidant of President Bush or others.
The U.S. attorney’s manual requires prosecutors not to bring witnesses before a grand jury if there is a possibility of future criminal charges unless they are notified in advance that their grand jury testimony can be used against them in a later indictment.
Rove has already made at least three grand jury appearances and his return at this late stage in the investigation is unusual.
The prosecutor did not give Rove similar warnings before his earlier grand jury appearances.
To one legal scholar, ‘an ominous sign’
Stephen Gillers, a New York University law professor, said it was unusual for a witness to be called back to the grand jury four times. Gillers said the prosecutor’s legally required warning to Rove before Rove’s next appearance is “an ominous sign.”
“It suggests Fitzgerald has learned new information that is tightening the noose,” Gillers said.
“It shows Fitzgerald now, perhaps after Miller’s testimony, suspects Rove may be in some way implicated in the revelation of Plame’s identity or that Fitzgerald is investigating various people for obstruction of justice, false statements or perjury. That is the menu of risk for Rove,” Gillers said.
No target letter, so far
Rove offered in July to return to the grand jury for additional testimony and Fitzgerald accepted that offer Friday after taking grand jury testimony from the formerly jailed New York Times reporter Judith Miller.
Before accepting the offer, Fitzgerald sent correspondence to Rove’s legal team making clear that there was no guarantee he wouldn’t be indicted at a later point, as required by the rules.
Rove’s attorney, Robert Luskin, said Thursday he would not comment on any ongoing discussion he has had with Fitzgerald’s office but that he has been assured no decisions on charges have been made. Rove would first have to receive what is known as a target letter if he is about to be indicted.
“I can say categorically that Karl has not received a target letter from the special counsel. The special counsel has confirmed that he has not made any charging decisions in respect to Karl,” Luskin said.
He said that Rove “continues to be cooperative voluntarily” with the special counsel investigation and “beyond that, any communication I have or may have in the future are going to be treated as completely confidential.”
High threshold for proving crime
For almost two years, Fitzgerald has been investigating whether someone in the Bush administration leaked the identity of Valerie Plame as a CIA officer for political reasons. Dozens of government officials were interviewed and boxloads of documents collected.
Reporters have been called before a grand jury to testify about their conversations with Rove and Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff.
Leaking the identity of a covert agent can be a crime, but it must be done knowingly, and the legal threshold for proving such a crime is high. Fitzgerald could also seek charges against anyone he thinks lied to investigators in the case.
The Plame affair
The leak investigation stems from a July 2003 syndicated column by Robert Novak identifying Plame as a CIA operative. Plame is married to former Ambassador Joseph C. Wilson, who says his wife’s identity was disclosed to discredit his assertions that the Bush administration exaggerated Iraq’s nuclear capabilities to build the case for war.
Miller spent 85 days in jail before agreeing to testify before the grand jury, after her source — identified by the newspaper as Libby — released her from her pledge of confidentiality.
Rove, Bush’s top adviser on political strategy and policy, has known the president for three decades. He worked for Bush as far back as 1978, when he unsuccessfully ran for Congress. Rove orchestrated Bush’s campaigns for Texas governor and president, then brought his political skills into the White House.