By Carol D. Leonnig and Jim VandeHei
Washington Post Staff Writers
Friday, October 7, 2005
White House Deputy Chief of Staff Karl Rove will again testify to a grand jury that is in the final stages of investigating whether senior Bush administration officials illegally leaked the identity of covert CIA operative Valerie Plame to the media more than two years ago, a source familiar with the arrangement said yesterday.
Special prosecutor Patrick J. Fitzgerald contacted Rove last week to seek his fourth appearance before the grand jury -- but warned Rove's lawyer that he could not assure that Rove would not be indicted, according to the source. Rove could appear as early as today, when the grand jury is next scheduled to meet.
Fitzgerald's request -- which comes just weeks before the grand jury term is set to expire on Oct. 28 -- suggests that new information has come to light in other witness testimony, or other questions remain that Rove needs to address, according to lawyers who have been involved in the case.
Rove's lawyer, Robert Luskin, said in an interview yesterday that Rove has not been notified that he is a target of the investigation, and does not fear testifying despite Fitzgerald's warning. Luskin declined to say whether he knows the topics Fitzgerald wants to question Rove about.
"Mr. Fitzgerald has affirmed to me that he has made no charging decisions, that he believes Karl continues to cooperate fully with the investigation, but beyond that, I don't want to comment at all about any communications with Mr. Fitzgerald's office," Luskin said.
A source close to Rove said Bush's chief political adviser and his legal team are now genuinely concerned he could face charges. But, the source said, his lawyers are hoping that Fitzgerald's warning of the chance of indictment is simply the move of a conservative, by-the-book prosecutor wrapping up a high-profile investigation. Prosecutorial guidelines require prosecutors to warn witnesses before they appear before a grand jury if there is a chance they could face criminal charges.
For the past 22 months, Fitzgerald has been investigating whether any Bush administration officials knowingly revealed Plame's identity in July 2003 as retaliation for public criticism by her husband, former ambassador Joseph C. Wilson IV, of the government's case for war in Iraq.
On July 6, Wilson contended in an opinion piece that administration claims that Iraq was trying to obtain nuclear materials in Niger were false. Wilson had been sent to the African nation by the CIA to investigate the claims. Eight days later, on July 14, Plame's name and CIA employment appeared in a syndicated column by Robert D. Novak.
Rove has testified that he talked with two reporters about Plame in that time period, but only referred to her as Wilson's wife and never supplied information about her status as an undercover CIA operative. Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, also testified that he discussed Plame with at least two reporters but said that he, too, never mentioned her name or her covert status, according to lawyers in the case.
The news of Rove's upcoming testimony comes at one of the more difficult moments of the Bush presidency. In recent months, Bush has faced steady criticism for his handling of Iraq, gas prices and Hurricane Katrina. Most recently, a number of prominent conservatives who have backed Bush since 2000 have been sharply critical of his nomination of Harriet Miers to the Supreme Court.
Bush spokesman Scott McClellan said the White House would not comment on the probe.
"That's an ongoing investigation . . . and the president directed that we cooperate fully with that investigation," he said. "As part of cooperating fully, that means not commenting on it from here."
As recently as a week ago, people familiar with Rove's role in the affair said they believed he was in the clear because, after Time magazine reporter Matt Cooper testified in July about his conversation with Rove, Rove had not heard back from Fitzgerald.
Rove offered then to come back and answer any questions that might arise from Cooper's testimony, Luskin has said.
It is highly unusual for a person who has any risk of being indicted in a white-collar case to offer to go before the grand jury, say veteran defense lawyers and former prosecutors. But the rare exceptions, they say, are almost always high-profile figures and politicians. Public figures can expect that an indictment will end their careers, and that refusing to cooperate in an investigation could do the same, criminal lawyers said.
A witness who has already appeared several times may be recalled to explain why earlier answers appear to conflict with accounts of other witnesses, said two former prosecutors. Or the prosecutor may simply want to inquire about new topics that have arisen in the investigation.
Under Justice Department guidelines, prosecutors must provide witnesses the opportunity to testify again if they want to recant previous testimony that may have been false. That does not necessarily prevent a prosecutor from bringing charges but can be part of that person's defense.
Besides Cooper, at least two other people have testified before the grand jury since Rove last answered questions: New York Times reporter Judith Miller, who was questioned after initially refusing to appear and serving 85 days in jail, and Rove's secretary.
Under an agreement with Fitzgerald, Miller's testimony last Friday focused on her conversations with Libby. Libby's lawyer, Joseph Tate, did not return telephone calls seeking comment yesterday.
Rove's secretary was questioned about why a phone call from Cooper to Rove in 2003 was not recorded in White House phone logs, according to sources familiar with the probe. She reportedly explained that Cooper called the main switchboard and his call was not logged because it was rerouted to Rove's office.
One apparent conflict between Rove's and Cooper's accounts centers on Rove telling the grand jury that he and Cooper talked primarily about welfare during their conversation, according to lawyers familiar with Rove's account. Cooper has said the grand jury asked him repeatedly about the welfare portion of his discussion with Rove, but Cooper said that, although he left a message for Rove about welfare reform, their conversation that day centered on Wilson.
Randall Eliason, former chief of public corruption prosecutions in the U.S. attorney's office in Washington, said it is difficult to speculate about Rove's possible exposure.
"Obviously, some more questions were raised since the last time he testified that Fitzgerald wants to answer," Eliason said. "It would be unusual for Rove to go back in if he felt he was going to be indicted."
A notable example of a public figure voluntarily going before a grand jury despite the risk of indictment is Sen. Charles S. Robb (D-Va.). He had been notified in 1992 that he was a target of an investigation into illegal wiretapping of a political opponent. When he learned the Justice Department had authorized bringing charges against him, his attorney pressed to let him reappear before the grand jury. He was not indicted.
Staff writers Walter Pincus and Susan Schmidt contributed to this report.