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The Penitent

Penitent.jpgVivaca Novak’s article is up at Time. There are a number of aspects about the article that I find troubling and puzzling, not the least of which is the substantial lack of any solid factual detail on precise dates and items discussed.

In my mind a reporter actively working a story, even when speaking with a friend who is also a source, might want to pick up a handy device I like to call a microcassette recorder and log in a few thoughts after meetings, just to be certain that factual detail is accurate for later reporting. Call me crazy.

Also, wouldn’t it have been decent of Viv to let the rest of us know what Luskin told her about the timing of his turning over the Hadley e-mail to Fitz? I mean, so long as she’s spilling the beans, just a general time frame bit of information sure would have been a swell gesture. We still don’t have a solid date on this — and whether or not Rove is in perjury jeopardy could hinge on some of the timing of all of this.

For what it’s worth, I don’t see much of this as helpful for Rover. Here is why: Vivak says that she spoke with Luskin on five occasions, somewhere between October of 2003 and May of 2004. (At least, that is the timeframe disclosed in her article.)

Fitz appears to be concentrating on the March, 2004, area, at least according to Vivak. Which says to me that Fitz and his crew have uncovered a bit of information — either directly from some representation made by Luskin, backing things up from the time in which the e-mail was turned over to him, or from direct statements or testimony from a cooperating witness that the reveal of the Rove/Cooper connection happened around this time.

How? Perhaps from Susan Ralston saying something to Fitz regarding when she and the rest of the staff started scrambling back through their e-mail trail on Rove/Luskin’s orders. Perhaps from some other witness who spoke with Rove around the March conversation time frame, someone who was uncovered when Rove may have been scrambling to either refresh his recollection (the good faith argument) or trying to see how many other people knew about the Cooper call (the covering his ass argument), who couldn’t be assumed to be a person who wouldn’t disclose the conversation.

But Fitz wouldn’t be asking about a specific date area, tipping his hand with a potential witness who was likely to report the questioning, without having something in hand that supported what he was asking. And my guess is that something has come from testimony from someone inside, who had some particular piece of evidentiary information that raised just the right questions for piecing some aspect of this puzzle together for Fitz and his team.

However Fitz has learned about the March conversation, it clearly didn’t come from Vivak — who can’t search her Covey planner for anything that occurs before 8 am. Are people in DC just naturally document challenged?

How does this present issues for perjury charges for Rove? Well, there are a lot of good faith dominoes that have to fall in order for a clear path to occur. Rove has to have genuinely forgotten about the conversation with Cooper; his and Libby’s conversation(s) about it and Libby’s follow-up call to confirm information for Cooper; Rove and Hadley have to genuinely have missed the e-mail in their individual searches, as well as the WH staffers who may have performed the searches having missed it as well (because, you know, who would think to search for "Wilson" *cough*); and when Rove spoke with his attorney, he just didn’t tell Luskin about all of this because he just forgot.

Oh, and that matter of Rove having a photographic memory? Well, gee, anyone could just space an e-mail with a photographic memory, right? Erm…

Okay, so assuming all of that, the second that Luskin heard about the Rove/Cooper connection, let’s say he ran straight to Rover and said, "Oh, crap. I think we have a problem. Did you talk with Matt Cooper at Time?" (Overlooking the fact here that Vivak was more loyal to Luskin than she was to Cooper and her colleagues at Time because she didn’t bother to tell any of them about this, apparently, until it started becoming public in other media outlets around November 20th, 2005, even with the Booby Woodward lesson right in front of her.) And Rove and Luskin immediately began looking for some confirmation of whether or not Vivak was being honest with them or yanking their chain.

And that they immediately notified Pat Fitzgerald that their might be a problem. Because if they didn’t, it reads to me like Rover trying to cover his pasty ass instead of truly trying to come clean with the prosecutor. Coming clean is essential for a recantation defense to work — because anything short of a genuine mistake and trying not to cover your ass or not coming clean until you are sure that the Prosecutor is going to find out anyway doesn’t give you an out. One prong of recantation is that you have to bring the error to the prosecutor’s attention and/or the grand jury before you know the lie will be exposed — if you are trying to cover your butt instead of come clean, it doesn’t fly.

That’s where I think our boy Karl may have a problem. Because any way I’ve read through all of the information that has been made public, I keep coming back to this information coming out around the time that it was clear that Matt Cooper’s efforts to quash his subpoena were coming to naught in October. And if Luskin and Rove found out in March of 2004 (or even May of 2004, depending on Vivak’s faulty memory reporting inferences), if Fitz only heard about this months afterward — say in September or October, my prosecutor antennae would be sitting straight up and taking names because I’d be sensing an effort to stonewall me and cover Rover’s ass. We don’t know a date certain on this — but I have this nagging hunch that Luskin and Rove sat on this information, or Rove would have been cleared on this a long time ago.

None of this explains why Vivak kept quiet about this with her editors so long, other than she was thinking more about access than reporting, I suppose. Nor why Luskin kept this quiet until the last hour — other than the fact that it is, I suspect, a true hail mary, last ditch effort.

The question is, though, whether or not Fitz is going to buy all this penitence? Without knowing what Fitz has for that March timeframe, it is tough to say — reading tea leaves, even a whole truck full, can be difficult fromt he outside. But my money is on Fitz not buying it, at least on this first pass, and I look for more grand jury activity in the weeks to come. Fitz wouldn’t have brought them back for just a social visit.

(Painting of The Penitent Magdalene by Georges de la Tour, c. 1638-1643., In the Metropolitan Museum of Art, NYC. Image Source: Web Gallery of Art)

UPDATE: Greg Mitchell at E&P has more. As does Jeralyn. And Atrios. And emptywheel at Next Hurrah.

UPDATE #2: Ooops. Thanks much to reader Shrink in SF for pointing out to me that I had clipped the wrong de la Tour. I’ve changed the painting above to the Magdalene. The prior painting was indeed the nightlight. Good eye! And that’s what I get for choosing article artwork while trying to keep my toddler from smearing yogurt in her hair.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com