Having given this a lot of (obsessive) thought and having done a bit (numbed google fingers) of research, I can say with the utmost certainty that Rove will never, ever be named a target, that is, until he's indicted. Why? Because his attorney, Robert Luskin, will simply never, ever
admit that Rove is a target or that he has received a target letter. They are playing for time here, and it ain't no one-minute waltz. Without any grand jury expiration date pressing Fitzgerald to act one way or another, we have no idea when any move will be made. In the meantime, Luskin will pirouette like a ballet dancer gone mad until he simply moves into no comment mode which I believe will be at the point that the indictments are at hand.
By using the Scooter Libby indictment as an example, and past examples of Luskin's parsing, we can attempt to gauge how Luskin will juggle his terminology now and what it means when he shuts up.
In the days leading up to Libby's indictment, and following disclosures by Cooper, we consistently read of both Libby's and Rove's attorneys commenting that their clients are not "targets." They try often to avoid using the word "subject" entirely, but instead delight in using "not a target" not merely for the legal art of it, but for the confusion it creates in the public's mind who is more familiar with the common vernacular use of the word "target."
We can find "target" denials by Libby's attorney as late as the last day of September 2005, a mere 28 days before he was indicted.
First of all, a lawyer for the vice president's chief of staff, Scooter Libby, says he has no indication, no reason to believe that his client is the target of this investigation. Also, he says that it was more than a year ago when Scooter Libby signed that confidentiality waiver that Bob was talking about which should have effectively kept Judith Miller out of jail.
Of course, this was the same time that Judy Miller was finally let out of jail and was testifying and a full week before her second testimony complete with the newly located notes. After that Libby's attorney seemed to disappear from Plamegate articles. He's rarely noted other than this way from an article dated October 19th, just 9 days before he was indicted.
Libby's lawyer, Joseph Tate, did not return repeated phone calls this week seeking comment.
Now, just a couple of days before the indictment we do find target teasers such as this:
IS TODAY THE DAY? Indictments in the CIA leak investigation case are expected to be handed down by a grand jury on Wednesday, bringing to a head a criminal inquiry that threatens to disrupt seriously President George W. Bush's second term. On Tuesday night, news reports, supported by a source close to the lawyers involved in the case, said that target letters to those facing indictment were being issued, with sealed indictments to be filed on Wednesday and released by the end of the week.
Here is where I think Jeralyn's comments on Talk Left are very on target (pun-intended) and come in very handy in understanding the "target" issue. Here is her summary of what a target letter is (also read the link within the link for the full scope) and why if one comes it will be on the heels of indictment, as in Libby's case, the night before the indictments were filed.
I laid out the terminology of "target letters" earlier. It may be worth noting (as appellate whiz Peter G. pointed out in the comments to the post)that it is not not a legal requirement, only Justice Department policy, that target letters be sent to those whom the Government subpoenas to the grand jury while also intending to indict them.
Now, in Rove's case, we don't have knowledge of any new explosive testimony by other witnesses in the case at hand to place any pegs on the board for one side or another time frame-wise. Nor are we nearing a deadline for expiration of the grand jury. Therefore, Luskin actually has a freer hand than Libby's attorney did to shape public perception up until the point of no return.
However, what we do have is this fascinating tidbit I found which I think passed relatively unnoticed in some of its guiling and parsing ways because we were so damn bent on hearing that Rove had taken the step up from "witness" to "subject" at the time, which happened to be July 12, 2005, just after Cooper's testimony. It is probably the most telling thing Luskin has ever said in this regard. He was on friendly territory at the NRO with the administration's accomplice in truthiness, Byron York.
Luskin also addressed the question of whether Rove is a "subject" of the investigation. Luskin says Fitzgerald has told Rove he is not a "target" of the investigation, but, according to Luskin, Fitzgerald has also made it clear that virtually anyone whose conduct falls within the scope of the investigation, including Rove, is considered a "subject" of the probe. "'Target' is something we all understand, a very alarming term," Luskin says. On the other hand, Fitzgerald "has indicated to us that he takes a very broad view of what a subject is."
Think about this. It was the very first admission that I could find by Luskin that Rove was even a "subject" and yet he is already attempting to use the "not a target" terminology. Luskin is spinning Rove's "subject" status in an opposite direction by associating it with "anyone whose conduct falls within the scope of the investigation" implying that the term snares a lot of fish in its net and thus Rove is closer in status to being a witness.
However, the second quote is the silver bullet. York curiously interjects "On the other hand, Fitzgerald" before Luskin's next quote "has indicated to us that he takes a very broad view of what a subject is." I can't tell if either York or Luskin realized that "on the other hand" actually swings the term in quite the opposite direction. Knowing how things played out with Libby, it appears to me that Fitz's "broad definition" essentially means that one is a "subject" right up to the point of indictment wherein you'll get a target letter the night before we file indictments. Technically, one could say they only become a target upon indictment.
So what does this mean amidst all current speculation and reporting and couple of mentions of target letters? I think Luskin knows damn well that Rove is a target in the common versus legal vernacular, but he doesn't ever expect to receive such a designation until just a few days before indictment which is apparently not immediate yet given my conclusions, but could be at any moment and without warning for us. Luskin also knows that Fitzgerald will not come out and say that Rove is a target because he'll simply announce indictment a few days later. So Luskin can keep his top spinning in full-tilt boogey mode right up to days before an indictment. I'm certain Rove wants to buy as much time distance from the Whitehouse via his cha-cha move from policy to politics as he can. Not only that, if Fitzgerald makes no move before November, they'll have successfully kept Mr. Tubboat McLeaky from complete public association to crime during the campaign season.
So what can we expect if there is to be no mention of a target? Anything, at any time, but the moment that Luskin refuses comment or cannot be reached for comment, get ready to pop the cork and toss the confetti. I know I will.
Update before I even post. It seems MSNBC Hardball says the grand jury will be meeting tomorrow and are speculating on indictment time. Keep the above paragraph in mind and look for a tight-lipped Luskin or one playing the top-job in coming news stories for clues.