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Just the Facts, Ma’am


Anyone who follows the Plame matter closely is accustomed to picking up an article or tuning into a news story and watching them get details of the story just plain wrong.  We do it too; it’s a complicated story and it’s hard to follow all the details.  But as someone who’s witnessed people getting really excited about rumors that never turn out to be true, I would like to take a moment to interject a bit of objectivity about the current expectations regarding Karl Rove floating around out there.  Scandal fatigue can be exhausting.

David Shuster is a great example to use because he is a very, very good reporter and his stuff is top-notch; it only goes down from there (and it does in fact go way down).   And Shuster may have many good sources who are telling him that Rove’s indictment is imminent, but if he is basing this assumption on the reasons he lists, I’m not sure I draw the same conclusion. 

Shuster from Hardball:

Now regarding Karl Rove, according to the latest documents, the first time Rove is now described as a subject in the overall case – a subject being a technical term meaning somebody is under investigation.

The "latest documents" Shuster is referring to (I believe) is the April 12 filing by Libby’s lawyers.  What it actually said was:

The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby’s conversations with Mr. Rove concerning reporters’ inquiries about Ms. Wilson, as expressly discussed in the indictment.  (Indictment, Count One, at p 21).  Documents from Mr. Rove’s files about the subjects outlines in the indictment are discoverable pursuant to Rule 16 because without them the defense cannnot effectively prepare for Mr. Rove’s examination.  As discussed above, Rule 16 compels disclosure of such documents even if Mr. Rove remains a subject of a continuing grand jury investigation

(emphasis mine, p. 18-19)

First of all, this came from Libby’s lawyers not Fitzgerald.  Team Libby has repeatedly used these filings to manipulate public opinion and distract from Libby’s crimes, most recently when they tried to hand Richard Armitage out to dry (something Fitzgerald quickly shut down.)  And the statement reads "even if Mr. Rove remains a subject of a continuing grand jury investigation."  This is a specific reference.  Team Libby’s extremely broad request for discovery in this case has sought access to everything Fitzgerald has learned over the course of his investigation, and Fitzgerald has repeatedly claimed that if something is not relevant to the charges Libby faces he has no right to go on a fishing expedition.  So the Libby lawyers are trying to anticipate what Fitzgerald’s objections to this particular request might be, and if the hungry press goes chasing after somebody else as a result, so much the better.

That having been said, I have no doubt that Karl Rove is — and has been — a subject of Fitzgerald’s investigation, and as Sidney Blumenthal explains, "subject" is a legal term:

In white-collar criminal investigations, individuals who fall under the gaze of a prosecutor fit into one of three categories: witness, subject or target. Rove’s attorney has suggested that Rove is simply a witness. But that is untrue. He is a subject. A subject is someone the prosecutor believes may have committed a crime and is under investigation. If the prosecutor decides he has accumulated sufficient evidence to prove guilt, he will change the designation of that person from subject to target and then indict him or her. 

Fitzgerald has never said Rove is a "subject."   But the story has now taken on a life of its own.  From the Chicago Tribune:

Libby faces charges of obstruction of justice in that investigation, while Chicago-based U.S. Atty. Patrick Fitzgerald has said Rove remains a subject of his ongoing inquiry in the case.

Again, you read something like that and your eyes roll — it’s just sloppy and it further muddies the waters. 

Fitzgerald has gone to great lengths to limit the information Libby is allowed to see — for obvious reasons.  He’s gone out of his way to say who he would not be calling, and put Libby in the position of having to call these witnesses himself.  Rove is one of those people.  When Team Libby then argued that they were entitled to anything Fitzgerald had about Rove, Fitzgerald countered by saying that they should not be allowed to fish through his files for information with which to impeach their own witness.  It seemed to me at the time not so much an indication of Rove’s status than a bit of a clever firewall; Fitzgerald still gets to cross-examine Rove but he doesn’t have to show his hand before doing so.  Could make for some interesting courtroom theatrics.

I did find this observation from Shuster interesting, however:

The reason prosecutors describe an official as an Official A is when there’s pejorative information about that person, and the person has not yet been indicted and had a chance to defend themselves. But we’ve looked at prosecutor Patrick Fitzgerald’s record as far as designating people as Official A or Official B, and in every single case we have found, Keith, that prosecutor Patrick Fitzgerald when he designates somebody as Official A in an indictment, that person eventually does get indicted themselves.

I would bet a whole lot of money that Fitzgerald will eventually indict Rove.  But this may be a long game, one that plays out over years and that frustrates a lot of people who want justice NOW.  Those frustrations are only exacerbated by people who try to feed public hunger for this case by printing dubiously sourced stories that consistently get the facts wrong. We don’t leap every time someone yells "boo" about this story, nor should you.

Update:  The Note reported today that the Grand Jury investigating the CIA leak case was scheduled to meet this morning at 9:30 am, although there is no indication that Fitzgerald was there (and Shuster indicated on Hardball that he had not been around the grand jury for quite some time).  Shuster did, however, mention that defense attorneys say the grand jury has been active with regard to the investigation again, a good sign. 

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Jane Hamsher

Jane Hamsher

Jane is the founder of Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.
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