More on Target Notices and Rove

Lawrence O'Donnell has updated his Huffpo post to comment on how cagey Rove's lawyer is being when he said today Rove hadn't received a letter informing him he was a target. He's right.

I laid out the terminology of "target letters" earlier. It may be worth noting (as appellate whiz Peter G. pointed out in the comments to the post)that it is not not a legal requirement, only Justice Department policy, that target letters be sent to those whom the Government subpoenas to the grand jury while also intending to indict them.

Rove's lawyer asked for his client to testify again. Rove wasn't subpoenaed. Plus, Fitzgerald could have told him over the phone that if his client testifies again, he can't assure him he won't be indicted. And not sending a target letter doesn't mean Fitz won't advise Rove of his rights orally when he goes before the grand jury again.

The Supreme Court has never said that if the prosecutor fails to provide a target notice to grand jury witness, and that witness is later indicted, the indictment is invalid. Here is Section 9-11.151" of the U.S. Attorney's Manual:

The Supreme Court declined to decide whether a grand jury witness must be warned of his or her Fifth Amendment privilege against compulsory self-incrimination before the witness's grand jury testimony can be used against the witness. See United States v. Washington, 431 U.S. 181, 186 and 190-191 (1977); United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564, 582 n. 7. (1976). In Mandujano the Court took cognizance of the fact that Federal prosecutors customarily warn "targets" of their Fifth Amendment rights before grand jury questioning begins. Similarly, in Washington, the Court pointed to the fact that Fifth Amendment warnings were administered as negating "any possible compulsion to self-incrimination which might otherwise exist" in the grand jury setting. See Washington, at 188.

Notwithstanding the lack of a clear constitutional imperative, it is the policy of the Department that an "Advice of Rights" form be appended to all grand jury subpoenas to be served on any "target" or "subject" of an investigation. See advice of rights below.

In addition, these "warnings" should be given by the prosecutor on the record before the grand jury and the witness should be asked to affirm that the witness understands them.

Although the Court in Washington, supra, held that "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s)," the Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law. This supplemental advice of status of the witness as a target should be repeated on the record when the target witness is advised of the matters discussed in the preceding paragraphs.

If you're interested in reading the Advisement of Rights, it's at the same link. Basically, it's a Miranda warning.

So what does this all mean? In a nutshell, Fitzgerald may be planning on indicting Karl Rove; he doesn't have to tell Luskin; if he chooses to tell Luskin, he doesn't have to do it by letter; you can bet Fitzgerald will orally provide Rove with advisement of rights once he's in the grand jury room .

My take: Luskin is taking a giant risk in sending Rove in to testify again. I don't think Luskin would take this risk unless he was convinced Rove was going to be indicted: Either Rove convinces the grand jury he didn't commit a crime - or Rove gets indicted on a few more counts. It's a shot at winning the whole ball of wax - while risking a few more years in jail, if that.

What it also says to me is that Fitzgerald hasn't offered Rove any deal he's prepared to accept. And now I don't think Rove is going in to sell anyone else out. I think Rove is going in to try and clean up his prior mis-statements or lies, whichever they were.

Question: What does Rove want to correct the record on? His conversations with Matthew Cooper? Or something to do with the plan of the White House Iraq group to discredit Joseph Wilson by outing his wife? Your ideas?

Update: The AP reports:

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.

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    Re: More on Target Notices and Rove (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:44 PM EST
    Frankly, I'm wondering if Karl is spending his time reading the Plame/blogs trying to get his story straight.

    Re: More on Target Notices and Rove (none / 0) (#2)
    by Molly Bloom on Sat Dec 17, 2005 at 01:04:44 PM EST
    Rove testifying strikes me as a stupid move. He has very little to gain and everything to lose. Either way he is going to be indicted, this just gives them more ammo.

    Re: More on Target Notices and Rove (none / 0) (#3)
    by Edger on Sat Dec 17, 2005 at 01:04:44 PM EST
    What does Rove want to correct the record on? His conversations with Matthew Cooper?
    If I understand this correctly, Rove telling Cooper that it was Wilson's wife who authorized the trip Wilson was sent on would have had to be a "deliberate" attempt by Rove identify Plame as a covert agent, and would have had to made by Rove with full knowledge that her identity was being "actively concealed" by her employer, for there to be a crime committed by Rove. If he can make a convincing argument that his revealing her identity to Cooper was accidental, not deliberate or intentional, or that he was somehow under the impression that her identity was being not being "actively concealed" by her employer, is he safe?

    Re: More on Target Notices and Rove (none / 0) (#4)
    by Last Night in Little Rock on Sat Dec 17, 2005 at 01:04:45 PM EST
    My take: Rove and his lawyers see it coming, and there is a potential perjury count. By going to the GJ and coming clean on whatever he lied about that they've got him on, they may be able to get that count out of the coming indictment. I caution the "they've got him on" because he has probably been told through his lawyer that he's being indicted for perjury and this is his chance to recant that count and preserve some dignity. Better yet, there's stuff he's lied about they can't disprove, and he skates on that. "Karl Rove" and "dignity" in the same thought? Unthinkable.

    Re: More on Target Notices and Rove (none / 0) (#5)
    by squeaky on Sat Dec 17, 2005 at 01:04:45 PM EST
    Rove has something on Fitzgerald and all the jurors. He is going to say 'Let me zee your papers'. They were all seen recently in Afghanistan and Iraq, and looting in NOLA and are enemy combatants, al quaida conspirators and hiding osama. Miller has confirmation from an anonymous source so it must be true,

    Re: More on Target Notices and Rove (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:04:45 PM EST
    My take, Rove is the brains behind the abrupt end of Miller's jail sentence. He figured it out. He is the sleaziest of the slimiest, and he is going to get away with this. Soon you will see photos of Rove and Bush and Laura and Judith brunching together.