How Karl Rove Could Walk

I'm beginning to think it possible that Karl Rove either is not going to be charged in the Valerie Plame Leak investigation, or if he is charged, it will be with a false statement rather than perjury offense. If it's the second scenario, Rove could make a plea deal with Fitzgerald under which he agrees to plead guilty if Fitzgerald agrees to request a sentencing reduction to probation, because of his cooperation against others.

Here's the reasoning:

1. Fitzgerald may decide to give Rove a complete pass if he has cooperated to significant extent, turning on Libby and others in Cheney's office, the White House Iraq Group and perhaps the State or Defense Departments. Under this scenario, Fitzgerald simply would not submit a proposed charge for Rove to the grand jury so there would be no vote on him at all.

A clue for this scenario lies in Murray Waas' article on Rove's fourth grand jury appearance, the sources for which appear to be Rove's legal team:

"He will also be questioned regarding contacts with other senior administration officials, such as then-deputy National Security advisor Stephen J. Hadley and I. Lewis Libby, the chief of staff to Vice President Dick Cheney in the critical week before the publication of columnist Robert Novak's column on July 14, 2003, which outed Plame as a covert CIA operative."

It may be that by asking or agreeing to return to the grand jury a fourth time, Rove not only sought to clear himself but offered to incriminate others.

2. Rove may have successfully cleared himself of a perjury charge regarding his conversation with Matt Cooper during his fourth grand jury appearance. The applicable perjury statute allows him to do this:

(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

3. Fitzgerald may have accepted that Rove was not a confirming source for Novak. By telling Novak on July 8 he had "heard the same thing" about Wilson's wife, he wasn't saying it was true, only that he heard it. Bloomberg News reported:

In addition, on July 8, 2003, the day after the memo was sent, Novak discussed Wilson and his wife with Rove, who had remained in Washington, according to the New York Times. The Times quoted an attorney familiar with Fitzgerald's probe as saying that when Novak mentioned Wilson's wife worked for the CIA, Rove said, ``Yeah, I've heard that too.''

4. According to Rove's lawyer, Rove did not see the June 9, 2003 classified State Department memo until Fitzgerald showed it to him during a grand jury appearance. If that's true, then Rove may be off the hook for any charges related to disclosing information contained within it.

As background, here is a selection of news articles outlining when various reporters spoke to Rove and Libby:

5. On to Plan B. If Rove is charged, it might be only for making a false statement to investigators in the earliest days of the investigation when he said he didn't speak to reporters about Joseph Wilson's wife until after Novak's article was published. Murray Waas reported:

Rove also adamantly insisted to the FBI that he was not the administration official who leaked the information that Plame was a covert CIA operative to conservative columnist Robert Novak last July. Rather, Rove insisted, he had only circulated information about Plame after it had appeared in Novak's column. He also told the FBI, the same sources said, that circulating the information was a legitimate means to counter what he claimed was politically motivated criticism of the Bush administration by Plame's husband, former Ambassador Joseph Wilson.

If this is all the grand jury charges him with, and if, as I have speculated frequently in the past few weeks, he has cooperated against others, he could plead guilty under a plea agreement in which Fitzgerald moves for a sentence reduction under 5K1.1 of the Sentencing Guidelines, possibly down to probation.

Rove would need that motion.

The sentencing guidelines for making a false statement are here. While the guideline for the offense isn't onerous, as Velvet Revolution pointed out, the adjustments to the guidelines are another matter. For example, under 3A1.2(b), he could go up three levels because the victim was a government official.

"if the victim was a government employee or member of the immediate family of a government employee and the offense of conviction was motivated by such status…."

He could go up two levels for abuse of public trust:

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.

He could be increased another two levels for obstruction of justice.

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

Patrick Fitzgerald, and only Patrick Fitzgerald, not the grand jury or the Court on its own motion, has the power to make that 5K1.1 motion, and ask that Rove not receive a jail sentence.

Does last night's revelation that Fitzgerald had the FBI canvassing the Wilsons' neighbors Monday change this scenario? Not if the reason was to use Rove's cooperation to nail those in Cheney's office, the White House Iraq Group, State Department or a Pentagon unit for improperly leaking classified information or outing an undercover agent.

And that's how Karl Rove could walk.

Will it happen? Right now, only Fitzgerald knows for sure. As a devout critic of the Bush Administration, I bring it up because I don't like rats. If Karl Rove isn't indicted, or gets a sweetheart deal, I can't conceive of any reason why other than he sang his heart out.

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    Re: How Karl Rove Could Walk (none / 0) (#1)
    by Tom Maguire on Sat Dec 17, 2005 at 01:05:24 PM EST
    Not to be disagreeable, but a false staements charge for failing to remember Cooper in Oct 2003? As I recall (and I ought to look it up), when Martha Stewart was hit for a false statement, the prosecution also had evidence that she doctored her records (different pen color), and her broker testifying that she wanted a cover-up. As best we know, confirming evidence that Karl did somehting other than foregt Cooper is lacking. And keep in mind the original document request from Sept 2003. ON other criteria, the Rove-Hadley memail was responsive, but... The only reporter contacts cited in that email were Novak, plus Royce and Phelps of Newsday. That should offer lots of scope for the defense: "How can you expect this jury to believe you "forgot" Matt Cooper"? "Uhh, because the DoJ forgot to include him in the subpoena?" Let's not underestimate Cooper's inconsequentiality.

    Re: How Karl Rove Could Walk (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:24 PM EST
    It's true, it's very hard to prove a negative. It's possible Karl Rove really does have a terrible memory. (It was Reagan's defense, too, but that was more convincing later when it came out that Reagan had Alzheimer's.) As Nixon told his staffers, no one can prove you don't remember. (Actually, that was the advice given to Brat Farrar, decades earlier, in the novel of the same name: when you're conducting a large-scale fraud, never be afraid to say "I don't remember.")

    Re: How Karl Rove Could Walk (none / 0) (#3)
    by Tom Maguire on Sat Dec 17, 2005 at 01:05:24 PM EST
    Has anyone talked about the venue for possible trials? If I were Karl, I would fight, fight, fight. But I say that mainly because talk is chepa, and it's not me that will go to jail (and/or get pardoned). But I would think that it would be politically awkward for Karl to request a change of venue based on a possibly unfavorable jury pool. As to the "I forgot" defense - yes, Reagan's memory was terrible, but folks who listen to hate radio were reminded by Sean Hannity that Bill used versions of "Beats me" several hundred times, and Hillary was famously derided for remembering almost nothing (although she spoke with authority when asked her daughter's name). IMHO, it depends on the specificity of the questions asked of Karl - "Did you talk to Cooper"; "No" is more problematic than "Did you have relevant talks with anyone else?"; ""I don't remembert any". Bonus Point - Unless times have changed, FBI investigators take notes but don't have a tape recorder or transcript. Good luck with that in court on a he/said / she said that (as best we know) lacks supporting evidence.

    Re: How Karl Rove Could Walk (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:24 PM EST
    As a devout critic of the Bush Administration, I bring it up because I don't like rats. Oh Jeralyn, surely you're not comparing Bush administration officials to rats. Rats can be useful -- as snake food, for example.

    Re: How Karl Rove Could Walk (none / 0) (#5)
    by Kitt on Sat Dec 17, 2005 at 01:05:24 PM EST
    You're bumming me out, Jeralyn.

    Re: How Karl Rove Could Walk (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:24 PM EST
    Didn't Scott McLellan more-or-less admit that Rove and Libby lied to him in 2003? Isn't that also covered by the false statements law?

    Re: How Karl Rove Could Walk (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:24 PM EST
    Whatever the outcome of the investigation, I think the coverage will spur the public to scrutinize their representatives beyond the gloss of spin and punditry that currently serves as news. As I was driving to work in LA this morning I came to a stop light and noticed in the center divide a middle aged man holding a placard. I couldn't see what it said from the back but he held it high above his head and waved at cars going by. As I waited for the light to change, I wondered what it took for him to make his statement. He seemed casually dressed, a short greying beard, wasn't looking for money. I looked at my watch, 9AM. This man got out of bed this morning, made a placard and marched to the nearest biggest road and made his protest. He's taking a risk, risk of derision, risk of possible arrest. Was he a concerned citizen?Was he deranged? what does it take for someone to do that. Then I realized it took passion. You have to be passionate, have an all consuming belief to do get up out of bed and take those small but not insubstantial risks. He has something that makes him rise above his fears and take action. As I drove away I saw the writing on the placard. It said 'A Noble Cause?' with a small picture of an oil derrick in the corner. It was then I was overwhelmed with pride for the person. What a great patriot, I thought. Whatever your politics, the feeling of political impotence amongst the people is pandemic today. Our individual power seems hopeless against the powerful few whose actions are often directed by their own self-interest and not of the nation. But this man decided that he would do something, and he did it this morning. He got out of bed and reminded us that this is still a democracy and that there is something you can do, by taking a stand, by writing your your representative, by attending community national meetings or just standing in the center divide holding a placard for a noble cause.

    Re: How Karl Rove Could Walk (none / 0) (#8)
    by Mike on Sat Dec 17, 2005 at 01:05:25 PM EST
    Let's suppose you're right about Rove. What then? Specifically, does Bush keep him around? I've written about it on my blog. It's almost as intriguing to wonder about the outcome if Rove does get off.