NYT: Viveca - Luskin Conversation Later Than We Thought

The New York Times details Time reporter Viveca Novak's conversation with Robert Luskin, lawyer for Karl Rove, that supposedly led to the discovery of the Rove-Hadley e-mail and Karl Rove's return to the grand jury in October, 2004, during which appearance he acknowledged his conversation with Matt Cooper.

As far as I can see, there is only one thing in the article that Jane of Firedoglake and I have not previously reported: While the subpoena for Novak-Luskin's conversations dates to May, 2004, sources tell the Times that the conversation at issue (when Novak told Luskin that Rove had talked to Cooper about Valerie Plame Wilson) didn't take place until late summer or early fall, 2004. This puts the conversation much closer to Rove's October 15, 2004 recantation to the grand jury. It also puts the conversation after Cooper was ordered jailed on August 6, 2004 for not complying with his subpoena about Libby and perhaps after his August 26, 2004 deposition about his conversation with Libby, which he provided to avoid going to jail.

It looks to me like Viveca Novak spoke to Luskin after Cooper's first deposition and probably after September 13, 2004 when Cooper received the second subpoena. (Court opinion detailing dates here (pdf).) Will Fitzgerald take this as a sign of spontaneity and poor memory by Rove that spares him from a perjury charge? Or will he believe that Rove only came forward after he found out from his lawyer that Cooper would cook his goose if forced to testify?

The Times also has a clarification on how the Hadley e-mail was discovered. I've noted previously that some sources say Luskin turned it over to Fitzgerald while others say the White House turned it over.

....after his conversation with Ms. Novak, who is not related to the columnist, Mr. Luskin asked Mr. Rove to have the White House search for any record of a discussion between Mr. Rove and Mr. Cooper around the time that Ms. Wilson's identity became public in July 2003.

There are a couple of loose ends here:

  • The discrepancy between Cooper and Rove's description of the call which Rove said centered around welfare reform while Cooper doesn't recall that being discussed. [Added note: See commenter below who takes issue with my use of the word "centered."]
  • Cooper's July, 2003 articles mention White House sources. How could Rove not remember his own conversation with Cooper when Cooper said Rove asked him to treat the conversation as "deep background?"

In fact, I told the grand jury, Rove told me the conversation was on deep background." I explained to the grand jury that I take the term to mean that I can use the material but not quote it, and that I must keep the identity of my source confidential.?

Cooper continues:

Rove went on to say that Wilson had not been sent to Niger by the director of the CIA and, I believe from my subsequent e-mails--although it's not in my notes--that Rove added that Dick Cheney didn't send him either. Indeed, the next day the Vice President's chief of staff, I. Lewis (Scooter) Libby, told me Cheney had not been responsible for Wilson's mission.....Rove told me material was going to be declassified in the coming days that would cast doubt on Wilson's mission and his findings.

This is a lot more than a "I heard that too" type comment that Rove or anyone might have forgotten. It also seems like Rove and Libby may have spoken about Rove's call with Cooper - and that Libby's call the next day was meant to buttress what Rove told Cooper. How likely is it that Rove would have forgotten talking to Libby about Cooper as well talking to Cooper?

Bottom line: The call between Cooper and Rove is too detailed for Rove to have forgotten it. I think he erroneously calculated that Cooper wouldn't be forced to testify.

Now here's a question: When exactly did Luskin tell Fitzgerald about the Hadley e-mail? And when did Fitz schedule Rove's October 15 grand jury appearance? If the Luskin-Fitzgerald conversation about Rove's recovered memory took place before September 6, 2004, when Cooper received his second subpoena, and they set the October 15 grand jury date then, Rove has a stronger case. If it occurred after Cooper received his second subpoena, I think he has a weaker case.

But why did Luskin wait, as the Washington Post reported, until days before the Libby indictment in October, 2005 to tell Fitz about his Viveca Novak conversation?

Background: Viveca, Luskin and Fitzgerald: Do Dates Tell Us Anything?

Jane weighs in on today's Times article here.

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    This is great, Jeralyn. Novak's testimony is as likely to hurt Rove as to help him. In the summer of 2004, Rove is probably feeling pretty safe because the White House missed his email to Hadley (he would know that because Luskin would see everything produced), and because Cooper is either resisting the subpoena, or is agreeing to testify only about Libby. It is quite possible that Rove also kept Luskin in the dark about Cooper. Rove admitted being a confirming source for R. Novak, but he was an original source for Cooper, so that is the interview he would prefer to forget. Then, two things happen that shake Rove's sense of security. Luskin learns about Cooper from V. Novak, and Fitzgerald begins pressing Cooper for the name of his original source. I'm not sure it matters which of those events came first, but together, they provide a powerful incentive for Rove to recant. Luskin confronts Rove about Cooper. It wouldn't be the first time that a guilty client lied to his lawyer. Luskin says, "we need to have the White House check again for any evidence of discussions you had with Cooper." Again, Luskin would have reviewed any evidence produced, and so, once he found the email, he would have told Rove that the email must be handed over to Fitzgerald. Faced with that, Rove says, "you know, Bob, I think I now kind of do remember a brief conversation I had with Cooper." Whereupon, Luskin would have to advise Rove to go back to the grand jury and correct his testimony. Luskin is not obligated to tell Fitzgerald about his conversation with V. Novak, but he does need to come up with SOME plausible story about how, when, and why Rove forgot and then remembered something so important. Luskin's first effort was probably to say that they had discovered this email. But that would not have satisfied Fitzgerald, who would naturally ask what caused them to take a second look. Eventually, Luskin would get to his conversation with V. Novak. Bringing in this conversation is a very risky and desparate strategy. First, as mentioned above, it is as likely to incriminate as to exculpate. Equally important, Luskin cannot explain this sequence of events without testifying himself, and possibly exposing his conversations with his client. Once that Pandora's box is opened, it is not at all clear how much they can limit the waiver of attorney-client privilege. If Fitzgerald starts asking Luskin how Rove responded when he was told Novak's news, the results could be very damaging to Rove.

    the call in which Rove said centered around welfare reform while Cooper doesn't recall that being discussed Your work is generally outstanding, but I think you're a little off the mark on this. I object to "centered." We essentially have three interesting sources regarding that conversation. One is via Cooper (this includes his contemporaneous email, as well as his various statements this year). The second is Rove's contemporaneous email. The third is what Luskin said about Rove's testimony. My contention is that source 1 and source 2 are reasonably congruent, but that source 3 is out-of-whack with the other two sources, and should be discounted. I think your "centered" is wholly based on source 3. Here's more detail. We're not sure we have the full contents of Rove's email, but we do have this (7/15/05): "Matt Cooper called to give me a heads-up that he's got a welfare reform story coming ... When he finished his brief heads-up he immediately launched into Niger." There's nothing here to indicate that a real discussion about welfare reform took place. It seems Cooper started the conversation by saying something like this: "As you know, I recently left a message indicating that I want to discuss welfare reform with you. I'd like to perhaps return to that subject at a later time, but at the moment I'd like to ask you about Niger." Cooper, for his part, acknowledges in his recent statements (7/25/05) that welfare reform was on his mind at the time, and that he may have left a message mentioning his interest in discussing that subject with Rove. And Cooper didn't say "I know I didn't discuss welfare reform with Rove that day." Cooper simply says "I don't recall doing so." He said he doesn't recall "talking about it" with Rove. In my opinion, a "brief heads-up" hardly rises to the level of "talking about it," which implies give-and-take: a discussion, in other words. And it's no surprise that Cooper would forget about this part of the conversation, especially since two years elapsed (from the time of the conversation until the time he heard about Rove's email). I don't see a big difference between these two accounts, and I don't see any obvious dishonesty in either of the two accounts. My speculation about the way Cooper started the conversation is consistent with both accounts. In my opinion, the dishonesty comes in when Rove-backers take the phrase "brief heads-up" and inject it with steroids. The prime example of this is Luskin, who is the apparent source for this (7/22/05): "[Rove] and Cooper talked about welfare reform foremost and turned to the topic of Plame only near the end." (More such talk from Luskin can be found here and here.) The first weasel-word is "foremost." Yes, the words "welfare reform" were apparently mentioned at the very beginning. But "foremost" doesn't just indicate "first." It implies "most important." Trouble is, there's nothing in Rove's email to support the idea of "most important." On the contrary. Rove's email clearly suggests that most of the duration of the conversation was spent discussing Niger. The next distortion is "turned to the topic of Plame only near the end." How is that assertion derived from Rove's email? On the contrary, it seems at odds with Rove's email. Luskin's language tends to create impression that there was actually a discussion (give-and-take) about welfare reform, and that this discussion consumed most of the duration of the call. How does such a characterization spring from the actual words in Rove's email? Via spin and dishonesty, that's how. To summarize: Rove's email does not say "when _we_ finished _discussing_ welfare reform he immediately launched into Niger" (and it most certainly doesn't say "when we finished discussing welfare reform, which took up most the time, then we finally turned at the end of the conversation to the subject of Niger"). Rove's email says "when _he_ finished his _brief heads-up_ he immediately launched into Niger" (emphasis mine). The email suggests very clearly there was no give-and-take, no "talking about" welfare reform (and the email goes on to describe give-and-take regarding Niger). That's exactly what Cooper said, that he didn't recall "talking about" welfare reform. It's helpful to note that until the missing email surfaced, Rove apparently had total amnesia about this phone call. Fitz started questioning people in 10/03, and I assume he questioned Rove around that time (maybe you know for sure whether he did or not). This means that less than three months after the phone call, Rove had total amnesia about the phone call (it's not as if he told Fitz "I talked with Cooper, but only about welfare reform"). Rove didn't discover the email, and recover his lost memory, until roughly a year later (approximately 9/04). This suggests that his testimony about the phone call would be based wholly on what he documented in the email. Otherwise Rove is essentially claiming that the email was able to magically jog his memory to the extent that he suddenly had a complete and clear recollection of the conversation, including details above and beyond what's documented in the email. (And it's worse than that, because Luskin's account doesn't just add to what's in the email; it's at odds with what's in the email; a "brief heads-up" would not be likely to dominate the conversation.) This seems implausible, given that this is roughly a year after he had supposedly lost all recall of the conversation. In other words, I think it's safe to conclude that Luskin's spin, delivered via WaPo and York, is just that. Your "centered" is distinctly unsupported by Rove's email, a much more credible source. I think you are perhaps giving Luskin support he doesn't deserve. An aside: we don't know if Luskin is accurately describing Rove's testimony. In other words, we don't know if Rove tried to inflate the email, to the grand jury, in the way that Luskin is apparently trying to inflate the email in the eyes of the rest of us. But at the moment that's a secondary issue. The point at the moment is that we shouldn't help Luskin get away with pretending that Rove's email says things that it doesn't say.

    Thanks, jukeboxgrad and grampa for your thoughts. JBG - I added a note to reflect your disagreement with the word "centered" as to the welfare reform aspect of the call and e-mail. I'll check into it after work.

    Thanks for responding. I guess to further clarify I should say that I don't just object to the word "centered." It was sloppy writing on my part to say it that way. I object to the whole idea that it's a "loose end," that there's any substantive "discrepancy" between what's portrayed in Rove's email, as compared with what's portrayed by Cooper. Luskin's account is another story. He is at odds with Cooper, but in my opinion he is also at odds with Rove's own email. Therefore I think Luskin's account should be taken with a giant grain of salt. Thanks again for your excellent work.

    I guess I disagree with you, jukeboxgrad. I think you are putting to much weight on an email that might have been consciously written to hide what Rove was doing. Remember, Rove was quite aware during his call with Cooper that he was treading on dangerous ground. He talked about information that was about to be declassified, and at the end of the call, he commented that he might already have said too much. Yet I got the distinct impression from his contemporaneous email that 1) the purpose of the call was to discuss welfare reform, and 2) the Niger discussion came up at the end, and Rove's principal contribution to that discussion was to warn Time off the story. A very self-serving email, and not that different from Luskin's account of the conversation. There are two other sources of information that we do not have. The first is Cooper's contemporaneous notes, which are considerably more detailed than his email to his editor. Cooper must have consulted his notes when he testified that welfare reform was probably not discussed. I trust Cooper on this one much more than I trust Rove. Rove may well have remembered Cooper's telephone message at the time he composed the email to Hadley, but Cooper is a much better source for what they actually talked about on the call. The second source of information we lack is what Rove told Luskin. There is every reason to believe that Rove focused on welfare reform in explaining to his lawyer why he had not previously disclosed the call. First, that version is supported by the email to Hadley. Second, Rove could say that he had forgotten the call because it wasn't primarily about Wilson. I'm not doubting that Luskin is spinning when he talks about that call (and not doing a very good job of it at that), but it's quite possible -- even likely -- that he got that spin from the Spinmeister himself. As I read it, there is a great deal of discrepency between Rove's version of the call and Cooper's. Rove's version goes beyond his email and includes his testimony before the grand jury. True, we probably know about that testimony only from the spinnings of his lawyer, but there is a world of difference between being a confirming source for Cooper and being an original source. Rove's lie is as much about the substance of the call as about whether he remembered its existence. Fitzgerald may base a perjury and/or false statements charge only on Rove's failure to disclose the call, but it is the substance of the call that creates the motive for the perjury. Jeralyn, if you are still with me after this rambling response, I have a legal question for you. In charging perjury before the grand jury, where the defendant has recanted, who bears the burden of proving that it has or has not "become manifest that such falsity has been or will be exposed"? I'm thinking that if Rove bears that burden, he would need to bring in evidence that he recanted because of what he learned from his lawyer, and because of what his lawyer learned from V. Novak. That would require him to waive his attorney-client privilege, no?

    Grampa, I appreciate your thoughts. "an email that might have been consciously written to hide what Rove was doing" I think at that moment, Rove felt very comfortable that he wasn't going to be outed. Therefore I don't think his email was influenced in the way you suggest. I think if he had been the least bit concerned that this email would come back and haunt him later, he would simply have avoided writing the email. It's not as if he really needed to write it at all. If he felt that what he was saying to Hadley was especially sensitive, he would have just picked up the phone instead. "the Niger discussion came up at the end" What is the language in the email that says this to you? I don't see that in "a brief heads-up." "A very self-serving email" I'm not sure I see what's so self-serving about the email. A truly self-serving email might have said "and of course I was sure not to say anything about Plame." Or "I mentioned Plame, but didn't say she worked at the CIA." You're suggesting he consciously wrote the email in a self-serving way. I don't see this in the content, and I don't see this in what I imagine his mental state was at the time. That is, he wasn't imagining that the email would be front-page news someday. I wonder if you're suggesting that he wrote the email later. This would make the email a forgery. This would be quite dramatic, if true. I don't think this happened, but I wouldn't rule it out. Assuming that one has control of various machines involved, forging an email is not a big deal. Here's what the motive would be. On account of Viveca and other reasons, Rove is realizing he made a mistake by lying about the conversation (failing to disclose it). He realizes he needs to recant, but he needs an excuse to "remember" the conversation. Suddenly this email is discovered, that mysteriously had not been found in previous efforts to respond to Fitz's discovery orders. This becomes an explanation for why Rove suddenly remembers something he had previously forgotten. Of course he would be taking a very big chance of digging himself a much bigger hole. So I think it's unlikely, but possible. I tend to think that Fitz has taken steps to authenticate the email. It would leave a trail of electrons in various places. It becomes a question of whether Fitz's technical people are smarter than Rove's technical people. My money would be on Fitz, in this matchup. One reason is that Rove would be very motivated to greatly limit the number of people he involved in his conspiracy to forge an email. "there is a world of difference between being a confirming source for Cooper and being an original source" There's a difference. I'm not sure it's a world of difference. Anyway, that seems to be a red herring. It's not the issue. The welfare reform angle doesn't bear on this question. There seems be no disputing that Rove was an original source for Cooper. Luskin's spin nibbles in other directions. Luskin is essentially saying, yes, Rove told Cooper about Plame, but Rove was not doing this in a deliberate effort to out an agent. Rove was simply trying to set the record straight ("Plame sent him, not Cheney"). It seems to me that the welfare reform angle is raised by Rove defenders simply to try to undermine Cooper's credibility, in general. This doesn't get them very far. One reason is that Cooper's email documents the heart of the matter: Rove told Cooper about Plame.

    jukeboxgrad - you make some good points. I confess that I'm speculating about Rove's state of mind when he wrote the email. He might well have been simply coordinating with Hadley (I've said elsewhere that I like Hadley for R. Novak's original source, and some coordination appears to have taken place; witness the similar stories told by Libby and Rove). But whatever he thought when he wrote the email, the subsequent spin on the conversation is at least as likely to have come from Rove as from Luskin. The language of the email does give Rove a basis for saying that the purpose of the call was to discuss welfare reform. This is important for someone attempting to show he was not part of a coordinated effort to undermine Wilson. It also gives Rove an excuse for forgetting to mention the call earlier. Finally, as you suggest, the email also provides a convenient trigger for Rove's "recovered memory." I don't buy that the email was fabricated afterward. It's just too easy to get caught, particularly if Rove needed to bring in technical experts to help him do it. There may have been some obstruction in the failure to produce the email earlier, but even that may have an innocent explanation. On the other hand, I'm quite willing to believe that Rove was aware of the email, and was feeling pretty smug when he realized that the White House document clerks had overlooked it in responding to the prosecutor's discovery requests. Finally, I do place a great deal of weight on the substantive differences in versions of that conversation as described by Rove/Luskin on the one hand, and Cooper on the other. Rove didn't even acknowledge the conversation until it was evident that it would be exposed. Then, in his third grand jury testimony, Rove corrected his faulty memory, and allowed as how the subject of Wilson's wife might have come up in passing. Finally, after Cooper testified at length, Rove returned to the grand jury for a fourth time. We don't know what he said, but he was most likely grilled about the inconsistencies between Cooper's testimony (supported by detailed notes) and his own. My guess is that Rove spend four hours dodging and weaving, and not remembering. He certainly set himself up for a perjury charge. Why would he have taken these risks when, early on, he readily admitted being a confirming source to R. Novak? I submit that he was much more worried about admitting to being an original source than a confirming source, because he was afraid that being an original source would make him liable under the Espionage Act or the IIPA. This is not surprising. I would venture to guess that in most successful prosecutions for perjury, the defendent is attempting to hide his guilt for the underlying crime.

    "the subsequent spin on the conversation is at least as likely to have come from Rove as from Luskin" Right, I don't mean to suggest otherwise. I guess the interesting missing piece is what Rove said to Fitz. Hopefully before too long we'll find out. My prediction is that what Rove said to Fitz is close to what Rove's email said, and not that close to what Luskin has been spinning. This doesn't mean that Luskin is going over Rove's head; on the contrary, I assume that Luskin is Rove's puppet. It just means that Rove is willing to play games with the spin he currently feeds to the press, but maybe not so willing to play games with what he is now telling Fitz. Later on if differences appear between what Luskin has said recently, as compared with what Rove actually said (in the end) to Fitz, Rove will simply suggest that Luskin made a mistake or was misunderstood. I think a big part of Rove's strategy (in this and other situations) is to kick problems down the road as much as possible, and hope that something will come along (another war? an attack on us?) to make the story lose its power. "This is important for someone attempting to show he was not part of a coordinated effort to undermine Wilson." Good point. I agree that this is where the welfare reform angle is helpful to Rove. I haven't mentioned this. You're right that this is one of the major defensive talking points: "I was just speaking casually, not making a coordinated effort to out an agent." From this perspective, now I do see the logic of your claim that Rove wrote the email with this kind of defense in mind. I didn't see this before, but now that you've explained it again, I see what you mean. Thanks for explaining it again. "It's just too easy to get caught" Absolutely. I was just taking the liberty to be wildly speculative. Anyway, I still am interested in paying close attention to information about how the email was missed earlier, and then magically was found at the right time. Maybe it was deliberately overlooked. I'm sure Fitz is giving that angle lots of thought. "I'm quite willing to believe that Rove was aware of the email, and was feeling pretty smug ... " Exactly. I think that's the most likely scenario (or some close variation of that). "I submit that he was much more worried about admitting to being an original source than a confirming source" A lot of Rove defenders are claiming that being a confirming source means next to nothing, but I'm not sure I agree (legally and morally). Anyway, here's an entirely different explanation for why Rove readily owned up to the Novak conversation, and tried to hide the Cooper conversation. It seems to me that Novak spilled his guts to Fitz right at the very start. Everyone's been wondering why Fitz never tried to throw Novak in jail. The answer is that Novak was a quick snitch on his BushCo pals. Rove knew this. That's why he didn't try to hide his conversation with Novak. Novak had already told Fitz all about this conversation. Cooper was a different story. I think out of principle, he was committed to protecting Rove. Rove knew this. Rove thought he could get away with it. Rove assumed that Fitz would never crack Time/Cooper. Rove was almost right.