For those of you unfamiliar with the federal criminal system, here is some insight into what has transpired over the past few days. There are at least two significant things to take from what Rove's attorney said and did NOT say that suggest Rove has some serious criminal exposure:
First, Luskin claims that Fitzgerald told him that Rove was not a "target" of the investigation. In the context of a federal criminal investigation, a target is a term of art used very carefully by federal prosecutors and reserved only for those involved in an investigation that the prosecutor presently deems a "putative" defendant. It does not mean, as Luskin would have us believe, that his client is out of the woods (and he surely knows better).
Here is the official DOJ definition: "A 'target' is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." There are two other categories of persons in a grand jury investigation: "subjects" and "witnesses." A subject is someone who falls within the scope of the grand jury's investigation and may very well have criminal exposure, but the prosecutor cannot yet conclude that the person is a target. A witness is someone who the prosecutor is ready to rule out as a subject or target. It is CRITICAL that Fitzgerald apparently did not say that Rove was not a target OR a subject. If Rove was truly in the clear, Fitzgerald would have said so and designated him as a witness (and Luskin would surely have told us). This means that Rove is a subject of the investigation and could soon become a target depending on the information contained in Time's documents.
Second, Luskin claims that Rove never "knowingly" leaked classified information. Obviously, this is carefully parsed language and represents Karl's defense. Evidently, Rove was trying to discredit Wilson to the press by bringing up Wilson's CIA-employed wife, but Rove is apparently claiming that he did not KNOW that the information was classified and that Plame was undercover. Putting aside for a moment the gross negligence in a high-level White House aide even unknowingly disseminating classified information about a CIA operative (should be grounds for termination in and of itself), this would be a plausible defense to the underlying criminal charge.
So where is this going? We've heard that Rove has claimed that he didn't start talking about Plame until after the Novak story appeared. But if Cooper's notes suggest that Rove was spreading the Plame story BEFORE Novak's column, this would mean that Rove lied to the grand jury (and perhaps to the FBI) about when he started pushing the Plame story. Not only is lying about a crime a crime, but it is excellent evidence of the underlying crime itself. Thus, not only may Rove be on the hook for obstruction of justice, false statements and perjury, his lies could give Fitzgerald enough evidence to charge him with the underlying leak (or at least put enough heat on him to get to the original source of the classified information).
One more thought: the White House is renowned for its message discipline. Fitzgerald knows this. The White House doesn't put out a message without Rove approving it, or doing it himself. Remember "A Few Good Men"? The Marines don't just take it upon themselves to do a Code Red. Here, the White House wanted to give Joe Wilson a Code Red. Ari Fleischer or Scott McClellan wouldn't do that on their own without Colonel Karl giving the go ahead. He's the key and it looks like Fitzgerald may have it. And if it turns out that Rove didn't have access to the classified information about Plame, he got it from someone who did. And there's your conspiracy.