Dear Mr. Fitzgerald,
After watching you on C-Span Friday, I am prepared to start the North Idaho Chapter of your fan club. You were so good! You made me proud to be Irish, and proud to be a trial lawyer.
You did not mention Karl Rove yesterday, and you said your investigation was still open. But Rove's champions have been all over the news insinuating that you are thinking twice about charging him with perjury.
Now, I respect your judgment a lot, and I know you have to take a lot of things into account in making these decisions, but I just can't believe that you feel the evidence shows that Rove innocently forgot his conversation with Cooper. You are way too smart for that!
See, I am a trial lawyer too (though not as skilled a one as you, I am sure). And I know that you have to take a common sense look at the facts you have, and to consider how you will present them to a jury.And you have to think about whether defendant has a plausible story, and what inferences can reasonably be drawn from the evidence.
Using those tools, there is NO WAY a fact finder would buy the "I forgot" defense from Rove. Here's why Rove's "I forgot" defense is unreasonable and implausible.
- It is implausible that Rove did not recall his conversation with Cooper during that extended period when Cooper was threatened with jail for failing to reveal his administration sources. No one would believe that Rove sat through all the reports of arguments and court opinions during the whole reporters' privilege phase of your investigation wondering "gee I wonder who Cooper talked to?" Wouldn't all that argument about Cooper's privilege jog Rove's memory? Also, weren't there discussions about a waiver of confidentiality? I understand that, at the end, Cooper went off some public statement, but weren't there earlier discussions? It is simply implausible that Rove went through that whole period when Cooper's sources were at issue without remembering that he was one of them.
- Rove sent an email to Steven Hadley after his call to Cooper recounting the conversation. Rove found the conversation important enough to email someone in the NSA-- the NSA! -- to tell him he had talked to Cooper about Wilson, so it was not likely to have been something he immediately forgot.
- Rove lied in his email to Hadley. Rove told Hadley:
"Matt Cooper called to give me a heads-up that he's got a welfare reform story coming,"
Rove wrote Hadley, who has since risen to the top job of national security adviser.
According to Cooper, there was no "heads up" on a welfare reform story. Cooper said he was in the early stages of a piece on welfare reform and may have mentioned welfare reform in a phone message left earlier in the week. But he did not discuss welfare reform in the call to Hadley, so that part of the email was already a subterfuge.
- Rove displayed clear ill-will and malice toward Wilson and Plame after Novak's column, when he called around to media and told people that Plame's identity was "fair game". Is it reasonable to think that the person who was angrily seeking to advance the Plame story after the article simply forgot his role in trying to advance the story beforehand? Implausible. Implausible. The jurors would be rolling their eyes thinking about it.
- Rove probably concealed his involvement in the leak to others. He told McClellan that he was "not involved" in the leak. Now, even if he forgot Cooper, I never heard anyone say that he forgot Novak. So what he told McClellan was a falsehood. You can certainly argue that lying to one person about something is relevant and admissible to show that your false statement to another person about the same subject was intentional rather than inadvertent.
So, in the face of all that, Rove's lawyer would have to come up with some really compelling stuff to support his "I forgot" defense. The press reports that the thing Rove showed you that made you "take a step back" was an email he sent to another white house guy:
The e-mail exchange reviewed by prosecutors was between Rove and former White House media spokesman Adam Levine, and it focused on a topic unrelated to Plame or Wilson.
The exchange occurred several hours after Rove had talked to Time reporter Cooper. Prosecutors went back and interviewed Levine again this week, asking whether Rove had mentioned his conversations with Cooper. Rove did not initially tell investigators about his conversation with Cooper. In another session, Rove recalled that he had spoken with the reporter.
Levine told investigators that Rove had not brought up Plame or the Cooper conversation -- suggesting that the topics were not priorities for Rove at the time.
"Levine's acknowledgment that the Cooper conversation did not come up in my client's conversation with Rove seems to support a theory that it just wasn't that important to Rove and could therefore have been easily forgotten," said Daniel French, Levine's attorney.
Um, Mr. Fitzgerald? There are probably A LOT of people Mr. Rove did not tell about his communication with Mr. Cooper on the day of the conversation. He probably didn't tell the woman in the white house cafeteria, or the president. He may not have told them because he did not want them or need them to know. The fact he did not tell a particular person does not support the fact that he didn't consider the conversation important. You could argue that, if he did not tell anyone, that might suggest he did not find the conversation important. But HE DID TELL SOMEONE -- he told Hadley. So I simply can't believe that you would consider Levine's email significant proof of Rove's innocent memory lapse. Besides -- We know Rove thought the Wilson story was significant a few days later when he told folks wilson's wife was "fair game."
Mr. Fitzgerald, I have great respect for your ability, so I really have to think (1) you know something that Rove's lawyer isn't telling and that's why you won't indict; or (2) the statement that Rove is out of the woods is nothing more than wishful thinking on Karl's part. I hope it's the latter. But I trust your judgment.
Sincerely,
Sophie Brown