Monday, November 28, 2005

Leaking Lawyer Luskin

On Sunday Time reported that a second reporter from the magazine has been sucked into the Plame leak investigation:

Fitzgerald is still trying to tie up the loose ends on Karl Rove's involvement in the case. Rove spoke to Matthew Cooper of TIME about Mrs. Wilson in July 2003, and this past July, Rove gave Cooper a specific waiver of confidentiality to testify about what was discussed. Fitzgerald has now asked a second reporter in TIME's Washington bureau, Viveca Novak, to testify under oath about conversations she had with Robert Luskin, Rove's attorney, starting in May 2004, while she was covering the Plame inquiry for TIME. Novak, who is not related to columnist Robert Novak, who originally published Plame's name, is cooperating with the investigation.

So has Luskin graduated from being a supporting player to a leading role in the investigation?

Will Luskin need his own lawyer?

Pure speculation until more is released (or leaked) but it seems that Luskin has done more than just defend his client during the proceedings and in the press. A case can be made (and might be made) that Luskin has been part of the cover-up attempt.

In the winter of 2003 the Administration officials implicated (or inferred) in the affair apparently decided to adapt a clever strategy which would steer them through the investigation. The plan was to rely on journalists not to talk.

But at the same time that journalists (and stengographers) such as Matt Cooper and Judith Miller began to face the wrath of the "junkyard dog" prosecutor, Luskin talked to anyone who would listen sometimes with direct attribution and sometimes not.

But the thing about it is that Luskin often lied.

About a lot of things.

As firedoglake's Jane Hamsher shows it may have been Luskin's lies which urged Cooper to finally come clean (or as clean as he has so far):

And let's remember that Matt Cooper might be sitting in jail right now if it hadn't been for Luskin's comment to the press that "If Matt Cooper is going to jail to protect a source, it's not Karl he's protecting." Cooper and his lawyer lunged on that statement like Jonah Goldberg on a box of Ding-Dongs and the rest is history.

Lawrence O'Donnell, who outed Rove as Cooper's source on television, wrote about Luskin's leaks back in July (link) and theorized about the reasons why and who might really be calling the shots:

After getting a lot of embarrassing attention for trying to deny to the Washington Post that Rove was the person who finally gave Cooper a specific release to testify, Luskin has gone undercover and now rarely attaches his name to the defense briefs he dictates to reporters, all of whom would love to use a source other than Luskin but no one in the prosecutor's office is leaking, so they're stuck with Luskin. The Washington Post usually identifies him as a source familiar with Rove's grand jury testimony, but Luskin has managed to negotiate a more indirect label with the Times where he appears as a source who has "been briefed on the case." The Times always points out that the source is sympathetic to Rove. Today's Times piece says that Luskin's latest description about how Rove and Lewis Libby worked together (the prosecutor might say conspired) to respond to Joe Wilson's Op-Ed piece was leaked to the the Times "to demonstrate that Mr. Rove and Mr. Libby were not involved in an orchestrated scheme to discredit Mr. Wilson or disclose the undercover status of his wife, Valerie Wilson, but were intent on clarifying the use of intelligence in the president's [State of the Union] address."

That will be Rove and Libby's defense against a possible conspiracy count in the prosecutor's eventual indictment.

It is important for Luskin to get his defense started now because he knows that what one appeals court judge in the case called "the plot against Wilson" is going to become public when the prosecutor reveals everything he has already revealed only to the judges.

Rove is obviously in charge of the day-to-day strategy of what Luskin leaks to the press. Rove is stealing a page from the Clinton scandal management playbook. He is trying to set the stage for the day the prosecutor turns over his cards. Rove-Luskin will then call it all "old news."

Everything Rove-Luskin has leaked has been printed in a form most favorable to the Rove defense without a word of leaked input from the prosecutor. When the prosecutor tells his story, don't expect him to accept Rove's currently uncontested claim that he does not recall who told him that Wilson's wife was a CIA agent and don't expect the "old news" spin to work. When the prosecutor has his day, he is going to make new news.

Viveca Novak's first interesting article on the leak is from January of 2004 (though she wrote about it a few times in 2003), a web exclusive co-written by John F. Dickerson called The CIA Agent Flap: FBI Asks for Reporters to Talk. The most interesting thing about this article is that it spells out the nature of the attempted cover-up (counting on the press to keep quiet) as it relates to the releases that Bush Administration officials and White House employees were instructed to write up releasing reporters from their confidentiality aggreements:

It's plain that White House officials are under some pressure to sign the documents. "They can't refuse," said one individual who's familiar with the case. "The worst thing to be accused of here is not cooperating with the investigation." But reporters are not likely to feel the same pressure. Journalists rarely divulge the identities of confidential sources even when threatened with contempt citations so the releases may make little difference. Still, in a post-9/11 world, a case involving the disclosure of a covert agent's identity could be taken very seriously by a judge, who would have the power to jail a member of the press for refusing to cooperate with a grand jury.

For an administration that at times holds a very dim view of the press, the reputation of the Bush White House and the future of some of its officials may hang on the profession’s ethical standards.

Those ethical standards seem to be in limbo these days. Any day now another journalist will probably 'fess up to what he or she "learned" but didn't write about.

At Booman Tribune, Booman calls attention to a story that Viveca contributed to written by Massimo Calabresi called When They Knew published on July 31, 2005 that contained this line:

Rove has told investigators he believes he learned of her directly or indirectly from reporters, according to his lawyer.

But the Viveca Novak story that intrigues me the most was a Web exclusive that was published on October 15, 2004 called Rove Testifies in Wilson Leak which probably pissed off Fitzgerald the most:

Karl Rove, one of President Bush’s top White House aides, testified this morning before a federal grand jury investigating the leak of a CIA operative's name by administration sources. Prosecutor Patrick Fitzgerald questioned Rove about his contacts with journalists in what a source familiar with Rove's situation said was his third appearance before the grand jury. "My client appeared voluntarily before the grand jury and has cooperated with the investigation since it began," said Rove's attorney Robert Luskin. "He has been assured in writing as recently as this week that he is not a target of the investigation."

Whether or not Luskin becomes a leading player in the investigation, after everything is said, leaked or done, Luskin might just lose his license to practice law. Why did he think he could get away with claiming that he possessed something in writing which he clearly did not?

Maybe that last question can be explained in another Web exclusive Time story written by Viveca Novak and John Dickerson called Grand Jury Hears Plame Case which was published on January 22, 2004 (before the time period that Fitzgerald appears to be interested in).

This story contains an interesting take on what subpoenas signify attributed to "one lawyer familiar with the case" (most probably Ruskin):

Grand juries aren't always used in criminal probes, but they are the preferred way to go in cases with potential political fallout, if only to lend credibility to the result. One conclusion to be drawn from this latest step, said one lawyer familiar with the case, is that investigators clearly have a sense of how the case is shaping up. "They clearly have a sense of what's going on and can ask intelligent questions" to bring the grand jury up to speed. A grand jury is not a trial jury, but is used as an investigative tool and to decide whether to bring indictments in a case.

Anyone who's subpoenaed in the inquiry, noted the lawyer, can be almost certain that prosecutors aren't contemplating indicting him or her. Subpoenas are rarely sent to the targets of an investigation, and if they are, the recipients must be told in advance that they are considered targets—at which point they would almost certainly cite the 5th Amendment and refuse to answer questions.

But Rove testified in October of 2004 "voluntarily" not under subpoena so it remains a mystery why Luskin told Viveca Novak that he had an assurance in writing that his client wasn't a target.


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