Friday, October 7, 2005
The AP reports (here) that special prosecutor Patrick Fitzgerald has accepted Bush aide Karl Rove's offer to testify a fourth time before the grand jury investigating the leak of the identity of CIA operative Valerie Plame. While Rove made the offer back in July, which is when Time reporter Matthew Cooper testified before the grand jury about his conversations with Rove regarding Plame, Fitzgerald only accepted the offer last Friday, the day that New York Times reporter Judith Miller finally testified before the grand jury. Is there a contradiction in there that Rove (or Fitzgerald) wants to clarify?
More ominously, it appears that Fitzgerald's acceptance of the offer did not provide any assurance that Rove will not be indicted. Rove's attorney, Robert Luskin, had emphasized repeatedly that Rove has not received a "target letter" from prosecutors, but the absence of a letter does not mean that the special prosecutor's office does not have targets, and Rove may have been notified orally of his status in the investigation. Moreover, these letters usually are sent in the final stages of an investigation and "invite" the person to testify before the grand jury (without their attorney being present, of course) despite the prosecutor's statement that there is substantial evidence of the person's involvement in criminal activity. As part of the "dance" between prosecutors and defense counsel, the target letter can serve a useful purpose to move along negotiations toward a resolution of the case, but in this situation is it unlikely that Fitzgerald's office needs to issue such a letter for that purpose when an oral notification would be sufficient. The targets of the investigation, including other senior administration officials, may well know where they stand, so assertions regarding the lack of official notification of target status are mostly a smokescreen.
Why would Rove agree to testify before a grand jury that may well be asked to return an indictment against him? Assertion of the Fifth Amendment at this point, after three prior trips to the grand jury, would be equally dangerous for someone in a position like Rove's because it would be tantamount to an admission of guilt. Look what happens in business when a corporate officer refuses to testify or cooperate in an investigation, and while the President softened his position earlier this year by stating that anyone convicted of a crime would lose his position in the administration, taking the Fifth would create enormous pressure to dismiss the person. Unlike most cases, in which it is almost foolhardy to appear before the grand jury when there is a reasonable chance it will be asked to indict the witness, in political cases the need to avoid an indictment is particularly strong. Those in the political arena often have good communication skills, so they think they can persuade a grand jury not to indict. Thinking back almost twenty years, then-Virginia Senator Chuck Robb appeared before a grand jury investigating him for corruption, and shortly thereafter the grand jury returned a "no bill" and refused to indict him. While it is a gamble to appear before a grand jury, it may be one worth taking in this case if there is at least the chance of heading off an indictment. If the indictment is inevitable, then the harm is not that great for a person who has appeared three times already. (ph)