Fitzgerald Re-Interviews Adam Levine About Rove

On February 11, 2004, Newsday (quoted at length here) reported that former White House Press Aide Adam Levine testified before the Plame grand jury for 45 minutes on Friday, February 6. The paper also reported:

In the grand jury sessions, press aides were confronted with internal White House documents, mainly e-mails and telephone logs, between White House aides and reporters and questioned about conversations with reporters, according to sources and reports.

Levine's lawyer, Dan French, has confirmed for the Washington Post that Levine was interviewed again Tuesday by a member of Fitzgerald's legal team regarding a July 11 conversation Levine had with Rove. This is the same date that Rove and Time Magazine reporter Matt Cooper spoke - in a conversation that Rove apparently didn't recall during his initial questioning by FBI investigators or before the grand jury. The Rove-Cooper conversation is the one Fitzgerald reportedly is examining in deciding whether to charge Rove with perjury.

Peter Zeidenberg, a Justice Department prosecutor working with Fitzgerald, called Levine that day to discuss a conversation Levine had with Rove on July 11, 2003, the day Rove spoke with Cooper, according to Daniel J. French, Levine's lawyer.

Levine, part of the White House communications team at the time of the leak, "was contacted as a witness," French said. Levine told Zeidenberg that he and Rove did not discuss Cooper in that conversation, according to a person familiar with the discussion.

It sounds like Rove is desperately trying to avoid a perjury charge and Fitzgerald is trying to give him every benefit of the doubt by satisfying himself that there are no witnesses, only the lone e-mail to Hadley, referring to Rove's talk with Cooper. Then he might accept that Rove simply forgot, as Rove reportedly later told the grand jury.

Yesterday I speculated that Fitzgerald might consider a recantation defense for Rove on any perjury charge, under the grand jury perjury statute 18 U.S.C. 1623(d).

(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. (my emphasis)

A little legal research shows this defense likely will be unavailable to Rove, which may be why his lawyers are posturing his ommission as "I forgot" rather than as a knowing misstatement.

While there is a split among the circuits as to whether the language of this section of the statute, which uses the word "or," really means "and," unfortunately for Rove, the DC Circuit Court of Appeals has ruled in favor of the "and" interpretation. (For legal eagles out there, see U.S. v. Moore, 613 F.2d 1029 (1979).) This means any misstatement by Rove to the grand jury must not have "substantially affected the proceeding," AND that the recantation must occur befor it was obvious it was going to be exposed. From the opinion:

Normally, of course, "or" is to be accepted for its disjunctive connotation, and not as a word interchangeable with "and." n84 But this canon is not inexorable, for sometimes a strict grammatical construction will frustrate legislative intent. n85 That, we are convinced, is precisely what will occur here unless "or" is read as "and."

Recantation, for all its value in ultimately unveiling the truth, may well prove to be a disincentive to veracity in the first instance; to the extent that a perjurer can sidestep prosecution simply by recanting, he is hardly the more prompted to tell the truth in the beginning. n95 By the same token, the deterrent effect of any statute punishing perjury is weakened in the same measure that recantation holds out the promise of possible escape. And indisputably, maximum deterrence of perjury is necessarily inconsistent with maximum range for recantation.

We conclude that Congress did not countenance in Section 1623(d) the flagrant injustice that would result if a witness is permitted to lie to a judicial tribunal and then, upon only learning that he had been discovered, grudgingly to recant in order to bar prosecution. It has been held implicitly that the recantation provision is available to perjurers only if their previous false testimony has not substantially affected the proceeding And it has not become manifest that the falsity has been or will be exposed.

If Rove didn't turn over the Hadley e-mail until he knew Fitzgerald knew about it, or offer to go back to the grand jury until Fitzgerald knew he had spoken with Cooper, then it would be too late to avail himself of this escape clause. By that time, it was "manifest" that his misstatement would be disclosed.

If Rove does get indicted for perjury, he may wish it had been by the Arkansas Whitewater grand jury. The 8th Circuit (which includes Arkansas) seems to be about the only one that interprets the language as "or" instead of "and." (See, United States v. Smith, 35 F.3d 344, 1994 U.S. App. LEXIS 24487 (8th Cir. Ark. 1994)):

We conclude that to read "or" as "and" in the context of § 1623(d) would "contravene [the Supreme] Court's long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity." Id. Thus, we accord the word "or" its ordinary meaning, reading the statute as setting forth two alternative conditions, satisfaction of either of which will allow a declarant to employ the recantation defense to bar prosecution for perjury.

I disagree with the D.C. Circuit's interpretation. Whatever happened to the rule of lenity, which says that if a law is unclear, it should be interpreted against the party who drafted it and in favor of the person it is being used against? If Congress made a mistake in wording the law, the remedy is for Congress to rewrite the law, not for the Courts to supply their own meaning.

Maybe it's time for the Supreme Court to visit this conflict between circuits. I would think a non-activist Supreme Court like the one Bush is trying to establish that doesn't think Judges should make law might see it differently than the DC Circuit. I bet if Karl Rove is charged and convicted of perjury, that's one issue he'll ask the Supreme Court to review. I wonder how Harriet Miers would rule.

Meanwhile, negotiations may be ongoing. Mike Allen of the Washington Post said tonight on Hardball (quoted on Think Progress):

MIKE ALLEN: A lot of activity happening that we’re not seeing. A likely scenario for what happened today, Patrick Fitzgerald got some indictments from this grand jury. He is now able to go to the…

CHRIS MATTHEWS: You think they’re sealed right now?

MIKE ALLEN: Very possible. What I’m told is typically, in a case like this, he could get the indictments and now he can go to the targets and say, you can plead to these or I’ll go back Friday and get more. You have 12 to 24 hours to think about it.

CHRIS MATTHEWS: And he can give them a little Whitman Sampler of suggestions pleading to the charge of obstruction or perjury or…

MIKE ALLEN: I can add a bunch of counts. You can take a couple of counts or we can do a bunch more.

I do not think the Grand Jury will be extended. Although, Steve Clemons of the Washington Note reports that Fitzgerald signed a new lease for office space this week for the Special Counsel's office, so who knows?

Update: Jane at Firedoglake notes that Laura Rozen of War and Piece made a great observation about Levine back in 2004:

It's kind of interesting -- that Adam Levine's job was to book White House officials on TV news and talk shows. He doesn't sound like he's the kind of senior official or has the job description to have likely known in intimate detail who's who at the CIA. He would have no reason to know about Plame's role, except had he been told by his superiors to try to get his contacts say at NBC to follow this other side of the Wilson story.

Update: It appears that Rove did testify about the Hadley e-mail and his conversation with Cooper in his October, 2004 grand jury appearance.

The White House turned the e-mail over to prosecutors, and Rove told a grand jury about it last year during testimony in which he also acknowledged discussing Plame's covert work for the CIA with Cooper and syndicated columnist Robert Novak. Rove, however, told the grand jury he first learned of Plame's CIA work from journalists, not government sources.

Rove, Bush's closest adviser, told a grand jury the e-mail was consistent with his recollection that his intention in talking with Cooper wasn't to divulge Plame's identity but to caution the reporter against certain allegations Plame's husband was making, according to legal professionals familiar with Rove's testimony.

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    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#1)
    by Tom Maguire on Sat Dec 17, 2005 at 01:05:26 PM EST
    Rove didn't offer to go back to the grand jury until it became known that Time Magazine would turn over Cooper's e-mails and notes that contained references to his July 11 conversation with Rove. By that time, it was "manifest" that his misstatement would be disclosed. I would love to see dates for his grand jury appearances; an old Times story said he had not appeared as of Feb 2004, but by Oct 15, he was on his third appearance. Anyway, I dispute your timeline as to the "imminence" of the discovery. First, in your theory, how did Fitzgerald even know to subpoena TIME? Who told him that Cooper and Rove had held a critical talk which would merit a court fight? Secondly, how do you explain the Isikoff story, which has the added benefit of according with common sense: Fitzgerald issued a second subpoena in Jan 2004; Luskin reviewed the material being submitted by Rove, found the email, and notified Rove and Fitzgerald. That story would then explain why Fitzgerald knew to subpoena Coooper. Now, I suppose that maybe (a) Isikoff is wrong, and relied on an a**-covering leak from Luskin; (b) Luskin just handed a stack of emails to Fitzgerald without looking at them; (c) Fitzgerald then subpoenaed Cooper, called Rove, and said "gotcha". One theory - Rove forgot; the other theory - Isikoff and/or Luskin are idiots/liars. Now, we still aren't sure how the WH phone logs work, but our not being sure does not mean Fitzgerald is not. This call, we remember, was not in the normal logs, so maybe Fitzgerald does not like the explanation for that. But unless he has a clearly evil story oin the logs, he just does not seem to have anything that looks like criminal intent here. Certainly not beyond a reasonable doubt. I'll agree that Rove is desperate to avoid an indictment - since Bush is out of the White House in 2009, even if Rove is cleared, he will be out of the WHite House at what could be the pinnacle of his career. And if Fitzgerald loses a Rove trial in 2009, what is he going to do for restitution, put Rove back in the White House under Hillary?

    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:26 PM EST
    All in Bushco dodging the bullet will not be chastened by their experience. Hubris rules and I can hear the choruses of "I was exonerated of all wrong doing" coming from the White House soon. I predict should the major players walk free, especially Rove, the humility stage will be skipped and they'll proceed straight to vengeance. No good deed, spoken truth or political slight goes unpunished in Bushworld.

    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#3)
    by aahpat on Sat Dec 17, 2005 at 01:05:26 PM EST
    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:26 PM EST
    Fitz issued a second subpoena to Cooper based on info he learned when he deposed him about Libby. That was one of the grounds for the appeal, if I recall correctly. And one of the grounds that made his situation different than Millers, that resulted in their splitting their legal defenses. Yes, I've also noted that Luskin has said that Rove testified in October, 2004 for the third time.

    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#5)
    by squeaky on Sat Dec 17, 2005 at 01:05:26 PM EST
    ...Fitzgerald signed a new lease for office space this week for the Special Counsel's office...
    Do you think Fitzgerald is using the blogosphere to flesh out a few more scoundrels, and the story is just a plant? As we are all so hungry for each new tid bit of Plamegate news, why wouldn't Fitzgerald use that to his advantage. Leaks sometime produce positive results. He seems a bit like the Pied Piper of Hamelin.

    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#6)
    by squeaky on Sat Dec 17, 2005 at 01:05:27 PM EST
    The new lease story is bogus. Clemons writes:
    Part of the process of reporting is doing the best one can do to source information, and seek double confirmation regarding stuff we post. The source of mine in the real estate brokerage arena has called to retract information shared with me that the Office of the Special Counsel was expanding into 1401 New York Avenue. He states that "he just got it wrong."
    TWN via atrios

    Re: Fitzgerald Re-Interviews Adam Levine About R (none / 0) (#7)
    by Tom Maguire on Sat Dec 17, 2005 at 01:05:28 PM EST
    Fitz issued a second subpoena to Cooper based on info he learned when he deposed him about Libby. That was one of the grounds for the appeal, if I recall correctly. I was just reading through the appeals last week, and *IIRC*, Cooper's original subpoena was a bit different from the subpoena for Russert - Russert's named an official (presumably Libby), but Cooper's did not. Fitzgerald then limited the Cooper subpoena to Libby, got his testimony, and re-subpoenaed. So it may be that Fitzgerald always wanted to ask Cooper about two people, and eventually settled for two subpoenas. Hardly matters now, and doesn't seem to be worth looking up. But then again, from p. 18 of the .pdf, "Brief of the Apellee": In an effort to negotiate Cooper’s compliance with the subpoena, the Special Counsel offered to limit the subpoena’s scope to cover conversations between Cooper and a specific individual identified by the Special Counsel. A-283-84. Cooper refused to comply with the subpoena, even after the Special Counsel offered to narrow its scope and, instead, moved to quash the subpoena on June 3, 2004. ...After being held in contempt, and after filing notices of appeal, Cooper and Time agreed to comply with the subpoenas as limited by the Special Counsel, on the understanding that the Special Counsel explicitly reserved the right to seek additional testimony and documents from Cooper and Time, if necessary. A-284; GA-50; SGA-279-80. Cooper indicated that his rationale for agreeing to provide testimony and documents pursuant to this agreement was the fact that the source had stated that he had no objection. GA-32. Well - I would argue that Fitzgerald wanted to query Cooper about at least two people even before Cooper opened his mouth.