Sunday, February 5, 2006
The Washington Post reports here on the DC Circuit Court of Appeal's Order releasing previously undisclosed grand jury material related to the Libby case. The actual court Order releasing the information is here. The court states that the release of part of this previously undisclosed document came about because:
"Now that the grand jury has returned an indictment against I. Lewis Libby for perjury, obstruction of justice, and making false statements to federal investigators, amicus curiae Dow Jones & Company moves to unseal the eight pages—or, failing that, portions thereof relating to matters that are now public."
The rationale for the release of some of this information now is explained as follows by the court:
"to prevent the unauthorized disclosure of a matter occurring before a grand jury.' Fed. R. Crim. P. 6(e)(6) (emphasis added); cf. Dow Jones, 142 F.3d at 502 (explaining that identical language in Rule 6(e)(5) requires courts to open judicial hearings ancillary to grand jury affairs to the public whenever consistent with grand jury secrecy). Our case law, moreover, reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public."Grand jury secrecy is not unyielding, however. Judicial materials describing grand jury information must remain secret only 'to the extent and as long as necessary
But not everything will be released. As stated by the court:
"That the special counsel’s investigation is ongoing only heightens the need for maintaining grand jury secrecy, for the special counsel is entitled to conduct his investigation out of the public eye and with the full cooperation of witnesses who have no fear their role in the investigation will lightly be disclosed."
The previously redacted Order that now has portions disclosed can be found on the Wall Street Journal website here. But the more interesting question is what is on pages 34-37 of Judge Tatel's concurring opinion. It starts by saying "Regarding Cooper" and is then redacted. It sounds like Special Prosecutor Fitzgerald is still working on this case.
Wednesday, January 25, 2006
While prosecutors in New York are dealing with the first skirmishes in the 19-defendant KPMG tax shelter prosecution, they are also looking at the enablers of the shelter sales by investigating three tax lawyers from Jenkens & Gilchrist. The lawyers, Paul Daugerdas, Erwin Mayer, and Donna Guerin, provided opinion letters used to support the tax shelters sold by KMPG to a number of wealthy individuals. A New York Times article (here) states that a grand jury in the Southern District of New York is investigating the opinion letters provided by the firm that most likely will focus on whether they were simply cookie-cutter documents that were not adequately supported while designed to mislead the IRS on the appropriateness of the tax treatment of income and capital gains. The Times article notes that Daugerdas earned $93 million in fees in from 1999 to 2003 from the issuance of the letters, while Mayer earned $28 million and Guerin $4 million over the same period. Jenkens & Gilchrist received $267 million in fees from the tax shelter business, although not all of that was generated by the issuance of the opinion letters. The firm has already agreed to an $81 million settlement with individuals who purchased tax shelters from KPMG supported by the firm's opinion letters (see earlier post here). In addition, Daugerdas and Meyer are no longer with the firm and Guerin is no long an equity partner. It will be interesting to see if any of the lawyers will agree to cooperate with the government and agree to testify in the pending KPMG tax shelter prosecution. (ph)
Sunday, January 15, 2006
Grand Jury Abuse has been the subject of much concern. (See Commission Report to Reform the Grand Jury Process here). So it is not surprising to see this issue arising in the white collar case against Lynchburg Mayor Carl Hutcherson, who faces charges of "mail fraud, Social Security fraud, lying to federal officials and obstruction of justice." Conor Reilly of the News Advance has a wonderful article here detailing the allegations of grand jury abuse being alleged in this particular case. The article quotes Professor Darryl Brown at Washington & Lee on the incredible prosecutorial discretion provided to prosecutors in presenting items in a grand jury. Every time I teach the case of United States v. Williams, 504 U.S. 36 (1992) I am reminded of the incredible unchecked power that prosecutors have in the grand jury process. It is important to stress to students that even though abuses in the grand jury may be overlooked on review, it does not mean that they should be tolerated. One would hope that the Office of Professional Responsibility of the Attorney General would monitor the abuses that occur.
(esp) (hat tip to Jack King at NACDL)
Wednesday, December 7, 2005
Prosecutor Patrick Fitzgerald began with a new grand today, according to the NYTimes here. Having a new grand jury in a white collar investigation is not unusual as the investigations can be long and very document intensive. And the newspapers are following every step they possibly can, considering that the grand jury is secret. The Washington Post has a lengthy story on Karl Rove's attorney, Robert Luskin here. One wonders in reading the story if the reporter was the superb writer or the person being written about was just feeding him everything to make it come out so fascinating.
Friday, November 25, 2005
The recent plea agreement of Michael Scanlon, a former partner of lobbyist Jack Abramoff, appears to be one part of a broader investigation of potentially corrupt campaign contributions and gifts to a number of elected officials and congressional staff. A Wall Street Journal article (here) notes that in addition to Reps. Tom DeLay and Bob Ney -- who was identified in the Scanlon plea documents as "Representative #1" -- Rep. James Doolittle of California and Montana Senator Conrad Burns are also involved in the investigation. In addition, upwards of 17 current and former staffers, including a number form Rep. DeLay's office, are also involved in the spreading probe.
An AP story (here) discusses a number of campaign contributions from Indian tribes who retained Abramoff as their lobbyist to Representatives and Senators near the time of congressional action that benefited the tribes. While none of the contributions appear to be illegal in themselves, their connection to legislative acts and contacts by the Congressmen with federal agencies related to tribal business raise questions about whether there was a quid pro quo arrangement. Based on the Scanlon plea, the investigation is being conducted by the Public Integrity and Fraud Sections of the Department of Justice, and the number of potential subjects (and targets) likely means the initial phase of the inquiry will take months. Given the number of potential witnesses and targets, the investigation will contribute to the already-booming employment of the District of Columbia's white collar crime bar. (ph)
Saturday, November 19, 2005
A Los Angeles Times story (here) about the government's ongoing investigation of possible kickbacks paid by plaintiff securities class action firm Milberg Weiss to lead plaintiffs in class action cases notes that leading partners Melvyn Weiss and David Bershad, along with now-former partner William Lerach, are targets of the investigation. The Times story discusses a 1995 class action, filed right before the PSLRA became effective, that may involve kickbacks to the lead plaintiffs, and that some participants in the case have been granted immunity, reportedly including Alan Schulman, a former Milberg Weiss partner who was lead counsel on the case.
It is not a great surprise that Lerach and Weiss are targets of the investigation because of their leading positions at the firm and heavy involvement in the plaintiffs class action bar. The statute of limitations issue remains a potential roadblock to a successful prosecution, however, because the adoption of the PSLRA in 1995 changed the rules for securities fraud class actions dramatically. The class action case being investigated settled in 1998, and any payments before the end of 2000 would fall outside the limitations period, although a conspiracy charge might be possible if there were overt acts in 2001 or later. The Legal Ethics Forum has an interesting post (here) on the investigation. (ph)
Monday, November 7, 2005
Ohio Representative Bob Ney has been subpoenaed to provide documents to a grand jury in Washington, D.C., investigating lobbyist Jack Abramoff, who has already been indicted in Florida on fraud charges. Abramoff has been the subject of an investigation by the Senate Indian Affairs Committee for his work on behalf of tribes on gambling issues, and his tribal clients paid for a golfing trip to Scotland for then House Majority Leader Tom DeLay and Rep. Ney in 2002 that may be involved in the grand jury investigation. Rep. Ney has pledged to cooperate fully in the investigation, although the issue will come to a head if prosecutors seek his testimony. Unlike a document subpoena, which can only be resisted on narrow Fifth Amendment grounds, testimony presents a much greater risk of incrimination that can trigger a Fifth Amendment privilege claim. Any inquiry into Rep. Ney's conduct on behalf of Abramoff will have to steer clear of the Speech or Debate Clause, a very delicate issue when a Congressman's actions that relate to the legislative process are the subject of an investigation. A story from The Hill (here) discusses the subpoena to Rep. Ney. (ph)
John Torkelsen worked extensively as an expert witness in class action suits brought by the Milberg Weiss firm, and his recent guilty plea to fraud charges has raised questions whether he will cooperate in the government's investigation of the firm's lawyers for making secret payments to named plaintiffs and perhaps others. Torkelsen pled guilty to making a false statement to the Small Business Administration in connection with a loan application, and prosecutors agreed to recommend a 70-month sentence. An article in The Recorder (available on Law.Com here) indicates that there is no specific reference to Torkelsen cooperating in any federal investigations, but that does not necessarily exclude the possibility that he will cooperate in the probe by a Los Angeles grand jury into the conduct of Milberg Weiss and one of its former partners, William Lerach, who split off from the firm in 2004. Torkelsen's plea hearing before U.S. District Judge Reggie Walton took place right before the arraignment of I. Lewis Libby in the same courtroom.
One indictment has already been returned in the case, naming a former named plaintiff in a number of Milberg Weiss cases who allegedly received undisclosed payments. None of the cases were filed after the mid-1990s, however, when Congress changed the procedures for appointment of the lead plaintiff and primary counsel in federal securities law class actions in the Private Securities Litigation Reform Act. If Torkelsen is cooperating, his contribution will have to come quickly because the statute of limitations is ticking away, unless the government has already obtained an indictment and it has been sealed for some reason. (ph)
Friday, October 28, 2005
A Travis County grand jury issued a subpoena to three associates of Rep. Tom DeLay, who were also charged in the conspiracy and money laundering indictments, seeking copies of e-mails sent in 2002. This is sure to draw a strongly-worded response from the defense side. It's interesting that the grand jury continues to investigate the same conduct that is the subject of the indictments, an investigation that is going into its third year. A CNN.Com story (here) discusses the subpoena. (ph)
Thursday, October 27, 2005
The latest AP report (here) has Special Counsel Patrick Fitzgerald meeting with Chief U.S. District Judge Thomas Hogan, who is responsible for (among other things) overseeing the grand jury and dealing with the administrative details for the courthouse, after a three hour grand jury session. Was Fitzgerald seeking an extension of the grand jury, or clearing procedures for returning a sealed indictment (and the resultant media circus that will attend an arraignment), or perhaps reviewing the Redskins smashing victory over the 49ers? FBI agents were out conducting interviews with neighbors of Valerie Plame and Joseph Wilson while the grand jury met with Fitzgerald and assistants from his office. As the legal adviser to the grand jurors, Fitzgerald most likely is explaining the law and discussing the evidence presented, and could even be working through a draft indictment (or two). We will know when we know -- no truer tautology than that. (ph)
Monday, October 24, 2005
On Meet the Press, in the context of discussing possible charges from the grand jury investigation of the leak of the status of Valerie Plame, Senator Kay Bailey Hutchison stated that a perjury charge would be a "technicality" and any such charge would be an attempt by Special Counsel Patrick Fitzgerald to justify a two-year investigation -- see the Reuters story here. As an earlier post (here) notes, this may well be the week in which Fitzgerald decides whether to seek a grand jury indictment. The Reuters article also notes that Fitzgerald may inform one or more officials in the administration that they are targets of the investigation, a final step toward seeking an indictment.
If a perjury (or Section 1001 or obstruction of justice) charge were to be returned by the grand jury, is that just a technicality, particularly if the underlying subject matter of the investigation -- whether there was a violation of federal law from the disclosure of Plame's position as a cover intelligence agent -- is not also charged? Lying is hardly a technical violation of the law, particularly when a person has sworn an oath to testify truthfully before a federal grand jury, and trying to diminish perjury as a "collateral" violation or otherwise unimportant denigrates the integrity of the investigative process. As the Eighth Circuit noted in U.S. v. Lasater, 535 F.2d 1041, 1049 (8th Cir. 1976): "The grand jury performs an important function in our judicial system, as the device by which criminal investigations are conducted and criminal proceedings instituted . . . Any false testimony before a grand jury, which tends to impede its investigation, should be diligently prosecuted." Interestingly, a claim of perjury was the basis for the first article of impeachment (here) against President Clinton, which stated:
[I]n violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that: On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury . . . .
That does not sound like a "technicality" to me. (ph)
Thursday, October 20, 2005
An AP report (here) discusses various conflicts in the testimony of Karl Rove and I. Lewis Libby that indicates Libby may have contacted reporters about the status of Valerie Plame as a CIA operative and not the other way around. Rove also testified that he may have learned about Plame from Libby, although as with everything else in this investigation, the recollection is hazy, at best.
Almost like the pieces of a giant puzzle, the information coming together points to some serious inconsistencies in the testimony of Libby, the chief of staff to Vice President Cheney, about his contacts with the press and the source of his knowledge of Plame. Whether they are enough to pull together into an indictment for false statements, perjury, or obstruction is a different matter, however. While contradictory statements are wonderful for cross-examining a witness, proving a person lied (as opposed to being nonresponsive) in the grand jury is much more difficult. "Might" and "may have" do not make for the types of falsehoods usually prosecuted. As more information leaks out about the grand jury testimony of witnesses, I wonder whether claims of prosecutorial violation of the secrecy requirements of Rule 6(e) will surface. (ph)
UPDATE: An extensive Washington Post story (here) discusses the role of various administration officials in the investigation. (ph)
The Ninth Circuit upheld a district court order quashing a federal grand jury subpoena to defense counsel because compliance would have effectively destroyed the attorney-client relationship. Federal Rule of Criminal Procedure 17(c) permits a court to quash a subpoena if it is "unreasonable or oppresive," a standard that is very difficult to meet under the analysis in United States v. R. Enterprises, 498 U.S. 292 (1991), that views grand jury subpoenas as presumptively reasonable. In United States v. Bergeson (here), the defense attorney, Nancy Bergeson, was subpoenaed to testify before a grand jury about her communication with her client, Michael Casey, about his trial date after Casey failed to appear. While Bergeson conceded her communication with Casey of the trial date was not privileged (apparently on the same basis that courts have held client identity and fee information is generally unprotected), the Ninth Circuit held that quashing the subpoena was proper because requiring her to testify against her client would interfere with the attorney-client relationship when the government had access to other sources of information to prove Casey's knowledge of the trial date (an element of the offense of bail-jumping).
The court stated: "That the government does not need the testimony bears on whether the subpoena is 'unreasonable,' and that it would destroy the attorney-client relationship bears on whether the subpoena is 'oppressive.'" The Ninth Circuit also noted that the U.S. Attorney's Manual, which states that all reasonable alternatives should be pursued before issuing a subpoena to an attorney to testify against a client, cut in favor of quashing the subpoena:
There were good reasons for the district court’s exercise of discretion. A client’s confidence in his lawyer, and continuity of the attorney-client relationship, are critical to our system of justice. The Justice Department restraints on issuing subpoenas to lawyers that we discussed in United States v. Perry and that the district court cited in this case are instructive on this point. Though these Justice Department directives are directions by an employer to its employees and not law, they demonstrate the recognition that the government has given to this fundamental interest. Issuing subpoenas to lawyers to compel them to testify against their clients invites all sorts of abuse.
Monday, October 17, 2005
One aspect of New York Times reporter Judith Miller's case, presented in great (although sometimes slippery) detail in the newspaper (here), includes some hotly disputed interchanges in 2004 between Joseph Tate, the lawyer for the Vice President's chief of staff, I. Lewis Libby, and Miller's then-lawyer, Floyd Abrams. According to the Times, Tate described to Abrams part of Libby's grand jury testimony in which Libby said he did not give Miller the name or status of Valerie Plame as a CIA operative. According to Miller, Abrams told her that when he told Tate that there could be no assurances that Miller's testimony would be consistent with Libby's, Tate allegedly responded "Don't go there, or, we don't want you there." Special prosecutor Patrick Fitzgerald ultimately examined Miller about whether she believed Libby wanted her to conform her testimony to his.
The role of the lawyers has been crucial in the investigation. Miller's new lawyer, Robert Bennett (former lawyer for President Bill Clinton in the infamous Paula Jones deposition), negotiated her release after Libby provided assurances of his waiver of confidentiality. Fitzgerald even played a key role in that process, sending a letter to Tate stating that any contact with Bennett regarding Miller testifying (or not) would not be viewed as being an obstruction of justice. But, could Miller's (and Abrams') recitation of the conduct of Tate -- who vehemently denies telling Abrams "Don't go there" or even implying that --constitute obstruction of justice? Interestingly, lawyers receive special treatment under the obstruction of justice statutes because legal counseling can often involve telling a client to do things that could be viewed as impeding an investigation. 18 U.S.C. Sec. 1515(c) (here) provides: "This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding." Tate's statement, if made to Abrams, would likely fall within the "safe harbor" as bona fide legal services. "Don't go there" is not a request that Miller change her testimony, and "we don't want you there" is even vaguer. Communicating with a lawyer, and not the witness, would likely take the conduct even further away from obstruction, unlike a case where a lawyer meets with a witness and suggests testimony.
In the hail of information on the investigation of the Plame leak, it is getting more difficult to separate out who said what to whom, and when. Ultimately, that's the challenge that Fitzgerald and his staff faces in deciding whether there has been any criminal conduct that can be proven. (ph)
Saturday, October 15, 2005
Karl Rove made his fourth appearance before the grand jury investigating the leak of Valeria Plame's identity as a CIA operative, and he appears to have spent a fairly significant amount of time answering questions. Rove arrived at the federal courthouse in Washington D.C. at 9:00 a.m. and didn't leave until after 1:00 p.m. Even if the entire time was not spent in the grand jury (and I hope they took at least one bathroom break), it appears that Rove's testimony took a great deal of time, at least as compared to other witnesses. With three prior grand jury sessions and interviews with FBI agents, there was a lot of ground to cover. Rove's attorney, Robert Luskin, stated that special prosecutor Patrick Fitzgerald would not need Rove to testify again -- no great surprise given the grand jury will expire in two weeks (unless extended another six months, which is a possibility if new evidence has emerged) and Rove has probably talked himself out at this point. Unless there are additional grand jury sessions next week, the issue now shifts to whether Fitzgerald's office will ask the grand jury to return an indictment or he decides not to pursue criminal charges. Watching a grand jury -- or more appropriately the building where it meets -- is just not all that interesting, however. Stories from the Washington Post (here) and AP (here) discuss Rove's testimony. (ph)
Thursday, October 13, 2005
New York Times report Judith Miller completed her second round of testimony before the grand jury investigating the leak of Valerie Plame's identity as a CIA operative, and now the focus has shifted to I. Lewis Libby, the Vice-President's chief of staff (see CNN.Com story here). Miller reportedly testified about a previously undisclosed meeting she had with Libby on June 23, 2003 [for those into high-level corruption trivia, on that date in 1972, Nixon and his chief of staff, Bob Haldeman, met to discuss covering-up the White House's involvement in the Watergate break-in]. Much has been made of the fact that Libby did not discuss this meeting during his interviews with FBI agents and testimony with the grand jury.
For those salivating about (or dreading) a possible indictment of Libby for perjury or false statement, the first question is whether he was ever asked about the meeting with Miller. The focus of the investigation seemingly has been on contacts between senior administration officials and reporters after Joseph Wilson's op-ed piece appeared on July 6, 2003, and not as much about what occurred before that date. The lesson from perjury cases like Bronston v. U.S. is that the question is just as important, and perhaps more so, than the answer. If no one asked Libby about the meeting, then his failure to volunteer the information may be disingenuous, but it would not necessarily be a lie, which is necessary for a perjury or false statement charge.
There has also been some discussion in the media (see National Journal story here) that Libby may have obstructed justice by telling Miller that his waiver of confidentiality was coerced, thereby ensuring that she would not testify before the grand jury. Can a factual statement ("the waiver was not voluntary") that will likely cause a reporter to refuse to testify before a grand jury constitute obstruction? That seems to be a bit of a stretch, in light of the Supreme Court's recent statement in the Arthur Andersen case about lawful conduct that can have the effect of thwarting an investigation. Chief Justice Rehnquist's opinion notes: "Such restraint is particularly appropriate here, where the act underlying the conviction--'persua[sion]'--is by itself innocuous. Indeed, 'persuad[ing]' a person 'with intent to ... cause' that person to 'withhold' testimony or documents from a Government proceeding or Government official is not inherently malign. Consider, for instance, a mother who suggests to her son that he invoke his right against compelled self-incrimination, see U.S. Const., Amdt. 5, or a wife who persuades her husband not to disclose marital confidences . . . ." 125 S.Ct. 2125, 2134-2135.
Libby's failure to disclose his meeting with Miller is certainly cause for further inquiry by special prosecutor Patrick Fitzgerald, and I would not be surprised if he were "invited" to return to testify before the grand jury, just as Presidential aide Karl Rove will be doing (for the fourth time). Whether the non-disclosure is enough for a criminal prosecution depends on what he was asked as much as what he said. (ph)
Wednesday, October 12, 2005
Prosecutor Patrick Fitzgerald is facing a deadline (NYTImes reports it here as Oct. 28th) of an upcoming end to the grand jury that has been investigating the leak of a CIA agent. Although he can ask to continue, it looks like Fitzgerald is moving things along in the final stages of this investigation. He has Karl Rove reappearing before the grand jury (see post) and now NYTimes reporter Judith Miller, who is out of jail, also set to appear. According to the NYTimes, Judith Miller met with prosecutors in anticipation of her testimony today to the grand jury. (see here). Stay tuned.
Monday, October 10, 2005
To describe the attacks on Travis County District Attorney Ronnie Earle as vituperative is an understatement, and the latest round from former House Majority Leader Tom DeLay seeks the dismissal of the most recent money laundering indictment because of prosecutorial misconduct. After the first conspiracy indictment, Earle's office sought a second one, perhaps on more legally defensible grounds, but a Travis Country grand jury returned a "no bill," meaning a majority of the grand jurors voted not to indict DeLay. A few days later, a different grand jury in the county returned the money laundering indictment, which is presumptively valid. DeLay's attorney, Dick DeGuerin, has filed a motion to dismiss the indictment on the ground that the Travis County D.A.'s office tried to cover-up the earlier grand jury's refusal to indict. DeGuerin asserted that the prosecutor "engaged in an extraordinarily irregular and desperate attempt to contrive a viable charge" -- just like everything else in Texas, the rhetoric is bigger. While the money laundering charge may be questionable, at least in the eyes of the defense, the grand jury system permits a prosecutor to seek an indictment from different grand juries so long as a majority find probable cause that the defendant committed a crime, and a "no bill" from one grand jury does have any preclusive effect. This may be a fight best left for a trial on the merits. A CNN.Com story (here) discusses DeLay's latest filing. (ph)
Karl Rove's fourth appearance before the grand jury could involve inquiry into his discussion in with President Bush about the release of Valerie Plame's identity as a CIA operative. While it was known that the President asked Rove about the leak, recent media reports (AP story here and National Journal story here) indicates that the President questioned Rove specifically about his own role in any effort to engineer the disclosure of Plame's status with the CIA to the media to undermine the position of her husband, Joseph Wilson. Rove denied any involvement to the President, and that was later reflected in the statement of White House spokesman Scott McClellan to the press and the President's own statement in the investigation. As this blog noted back on Aug. 12 (here), a false statement to the President could be the basis for a Sec. 1001 charge because the President's inquiry is a matter within the jurisdiction of the Executive branch. The questioning of Rove could involve not only what he said to reporters who wrote about Plame, but whether he misled the President. (ph)
Addendum - Karl Rove's attorney denies that Rove circulated name "to punish [Valerie Plame's] husband." See CNN here. (esp)
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)