Karl Rove Escapes Prosecution

Published on Tuesday, June 13, 2006 by The Nation
by David Corn

Early this morning, Robert Luskin, Karl Rove's lawyer, told reporters that special counsel Patrick Fitzgerald had sent him a letter stating that Rove would not be indicted in the CIA leak case. In a statement, Luskin declared, "We believe that the Special Counsel's decision should put an end to the baseless speculation about Mr. Rove's conduct."

Bush administration (and Rove) advocates will spin this news as vindication for the mastermind of George W. Bush's presidential campaigns. But there is no need for baseless speculation to conclude that Rove was involved in the leak and that the White House misled the public about his participation and broke a pledge to fire anyone who had leaked information about Valerie Wilson, the CIA officer married to former ambassador Joseph Wilson, a critic of the administration.
Here is what is known about Rove and the leak.

On July 9, 2003--three days after Joe Wilson published a New York Times op-ed piece disclosing that he had been sent to Niger by the CIA to check out the allegation that Iraq had been seeking to purchase uranium there and had reported back that such a transaction was highly unlikely--Rove confirmed to columnist Robert Novak that Joe Wilson's wife worked at the CIA. By this point in time, the White House--particularly Dick Cheney's office and Scooter Libby--had been gathering information on Wilson, his wife, and his trip for weeks. (In May and June, stories had appeared in the media quoting an unnamed ambassador who had gone to Niger and found nothing to substantiate the uranium-buying charge, which Bush had alleged in his 2003 State of the Union address.) And when Rove spoke to Novak--who had first heard about Valerie Wilson from another administration official--the White House was engaged in an effort to discredit Wilson. Cheney and others believed that if Wilson's mission to Niger could be depicted as a junket or boondoggle arranged by Wilson's wife, Wilson and his findings would be undermined. Spending a week in one of the poorest countries in the world for no pay would hardly qualify as a junket, but the White House was trying to use whatever they could.

Two days after Rove spoke to Novak and gave the columnist the confirmation he needed to proceed with a piece that would out Valerie Wilson as an undercover CIA officer working on weapons of mass destruction, Rove spoke to Matt Cooper of Time. According to an email Cooper wrote immediately after this conversation, Rove told him that Joe Wilson's wife worked at the CIA and had sent Wilson to Niger. This conversation occurred three days before the Novak article appeared.

So Rove spoke to two reporters about Valerie Wilson. Her employment status at the CIA was classified. Rove was not merely gossiping, he was disseminating secret information, whether he realized it or not.

After the leak appeared in Novak's column on July 14, 2003, Scott McClellan, who had just taken over as White House press secretary, said of the leak, "That is not the way this President or this White House operates."

He was wrong. It was precisely how the White House had operated. Scooter Libby--according to Fitzgerald's legal filings, Cooper's account, and the account of New York Times reporter Judy Miller--had also discussed Valerie Wilson's CIA connection with Cooper and Miller before the Novak column was published.

After the news broke in late September 2003 that the CIA had asked the Justice Department to launch a criminal investigation of the leak, McClellan declared that he had spoken to Rove and that "he was not involved" in the leak. McClellan also asserted that the vice president's office had not leaked the information about Valerie Wilson. He noted, "If anyone in this administration was involved in it, they would no longer be in this administration." Bush affirmed that Rove was uninvolved and said, "If somebody did leak classified information, I'd like to know it, and we'll take the appropriate action."

Rove--with or without the knowledge of the president and other White House aides--kept his leading role in the leak a secret for almost two years. In the summer of 2005, Newsweek revealed the Cooper email. And Fitzgerald's indictment of Libby months later disclosed that Rove had told Libby that he had spoken to Novak about Joe Wilson's wife.

The White House responded to these revelations by stonewalling, claiming that it could not answer any questions about Rove and the leak while a criminal investigation was underway. And it maintained that it could not even explain its previous--and false--statements about Rove and Libby.

McClellan's promise--made on behalf of the president--that anyone involved in the leak would be booted from the administration--was not honored. Nor was Bush's statement that action would be taken against anyone who leaked classified information. The evidence was clear. Rove had conveyed classified information about Valerie Wilson to two reporters as part of a White House effort to undercut Joe Wilson.

Fitzgerald had a high burden of proof in the Rove case. To win a prosecution under the Intelligence Identities Protection Act--which makes it a felony to disclose identifying information about a covert officer--Fitzgerald would have had to prove that Rove definitely knew that Valerie Wilson was not just a CIA employee but an undercover CIA employee. If Rove could raise doubt about his state of knowledge on that point, he would be able to mount an effective defense.

Fitzgerald had kept Rove in the crosshairs for so long because he suspected that Rove had lied to FBI agents and his grand jury when Rove said at first that he had not spoken with Cooper about Valerie Wilson. It was only after a Rove email emerged--under somewhat puzzling circumstances--that noted that he had talked to Cooper that Rove acknowledged that he had a conversation with Cooper (though he still said he did not recall it).

Fitzgerald spent over a year-and-a-half trying to determine if he could prosecute Rove for perjury or obstruction of justice, as Rove's lawyer tried mightily to explain the delay in producing that one email. In the end, Fitzgerald concluded his case was not strong enough. Given his pursuit of Libby and the time he kept Rove hanging, it's reasonable to assume that Fitzgerald rendered a good-faith judgment based on the law and the facts he had in hand.

Which brings us back to the Democrats' early mistake. From the start, they called for a special counsel--as if that would get to the bottom of the controversy. But Fitzgerald's mission was to investigate possible crimes and then mount prosecutions if he had the evidence to do so. His job was not to be a fact-finder for the public. He is not compelled to release any report detailing what he discovered about the leak and the White House role. Independent counsels in the past were required to write public reports. But the law establishing independent counsels expired years ago, with the consent of Democrats angry at Kenneth Starr. A special counsel has no obligation to report on what he or she discovered. Congress was the body that should have investigated the leak--not as a criminal matter but as an issue of White House conduct--and it did not. Senior congressional Democrats did not push that point when they had the chance.

That means now that the whole story of the leak has yet to be disclosed. And it may never be--in an official sense. (Stay tuned for a book I am writing that will be out in the fall.) But several essentials are well-established: Rove leaked classified information that may have harmed national security; the White House said he hadn't and that leakers would be fired; Rove remains at the president's side today.
Not all wrongdoing--not all lying--in Washington is illegal. Rove escaped prosecution. But the episode has revealed the way the Bush White House really operates.

David Corn, the Washington editor of The Nation magazine, has spent years analyzing the policies and pursuing the lies that spew out of the nation's capital. He is a novelist, biographer, and television and radio commentator who is able to both decipher and scrutinize Washington.