On September 29, 2003, three days after it became known that the CIA had asked the Justice Department to investigate who leaked the name of covert CIA officer Valerie Plame, columnist Robert Novak telephoned White House senior adviser Karl Rove to assure Rove that he would protect him from being harmed by the investigation, according to people with firsthand knowledge of the federal grand jury testimony of both men.
In the early days of the CIA leak probe, then-Attorney General John Ashcroft was briefed on a crucial conversation between Robert Novak and Karl Rove.
Suspicious that Rove and Novak might have devised a cover story during that conversation to protect Rove, federal investigators briefed then-Attorney General John Ashcroft on the matter in the early stages of the investigation in fall 2003, according to officials with direct knowledge of those briefings.
Ashcroft oversaw the CIA-Plame leak probe for three months until he recused himself and allowed Special Prosecutor Patrick Fitzgerald to be named to take over the investigation on December 30, 2003. Ashcroft received routine briefings about the status of the investigation from October to December of that year.
Sources said that Ashcroft received a special briefing on the highly sensitive issue of the September 29 conversation between Novak and Rove because of the concerns of federal investigators that a well-known journalist might have been involved in an effort to not only protect a source but also work in tandem with the president's chief political adviser to stymie the FBI.
Rove testified to the grand jury that during his telephone call with Novak, the columnist said words to the effect: "You are not going to get burned" and "I don't give up my sources," according to people familiar with his testimony. Rove had been one of the "two senior administration" officials who had been sources for the July 14, 2003, column in which Novak outed Plame as an "agency operative." Rove and Novak had talked about Plame on July 9, five days before Novak's column was published.
Rove also told the grand jury, according to sources, that in the September 29 conversation, Novak referred to a 1992 incident in which Rove had been fired from the Texas arm of President George H.W. Bush's re-election effort; Rove lost his job because the Bush campaign believed that he had been the source for a Novak column that criticized the campaign's internal workings.
Rove told the grand jury that during the September 29 call, Novak said he would make sure that nothing similar would happen to Rove in the CIA-Plame leak probe. Rove has testified that he recalled Novak saying something like, "I'm not going to let that happen to you again," according to those familiar with the testimony. Rove told the grand jury that the inference he took away from the conversation was that Novak would say that Rove was not a source of information for the column about Plame. Rove further testified that he believed he might not have been the source because when Novak mentioned to Rove that Plame worked for the CIA, Rove simply responded that he had heard the same information.
Asked during his grand jury appearance his reaction to the telephone call, Rove characterized it as a "curious conversation" and didn't know what to make of it, according to people familiar with his testimony.
James Hamilton, an attorney for Novak, said he could not comment on the ongoing CIA leak probe. Ashcroft, now in private practice, did not respond through a spokesperson to inquiries for this article. A spokesman for Fitzgerald said that the special prosecutor's office would not comment on the matter.
A spokesman for Rove, Mark Corallo, said, "Karl Rove has never urged anyone directly or indirectly to withhold information from the special counsel or testify falsely."
Rove, according to attorneys involved in the case, volunteered the information about the September 29 call during his initial interview with FBI agents in the fall of 2003.
Neither Rove nor Novak has been charged in the leak case, and legal sources say that Fitzgerald faces an especially high legal hurdle in bringing charges involving a private conversation between two people.
Foremost among the reasons that federal investigators harbored suspicions about the September 29 conversation was its timing. Three days earlier, NBC broke the news that the CIA had asked the Justice Department to launch a probe into the leaking of Plame's identity. During the noon news briefing at the White House on September 29, various reporters asked spokesman Scott McClellan repeatedly whether Justice was indeed investigating the Plame leak.
"If someone leaked classified information of the nature that has been reported, absolutely, the president would want it to be looked into," McClellan responded. "And the Justice Department would be the appropriate agency to do so."
In fact, Justice was already preparing to announce such a criminal probe, and the department made the formal announcement the following day, September 30.
Stanley Brand, a Washington lawyer who has represented numerous clients in several special-prosecutor investigations, said in an interview: "It is the better part of wisdom and standing instruction that witnesses to an investigation do not talk to other witnesses about the case when the case is still pending. It raises the inference that they are comparing each other's recollections and altering or shaping each other's testimony."
Brand has advised his clients not to talk to other witnesses in federal criminal investigations, he said, because there is a "thin line between refreshing each other's recollections ... and suborning someone to lie under oath."
Mark Feldstein, the director of journalism programs at George Washington University, said that Novak apparently acted outside traditional journalistic standards by reaching out to Rove after he believed that a criminal investigation had commenced: "A journalist's natural instinct is to protect his source. Were there no criminal investigation, it would have been more than appropriate for a reporter to say to a source, 'Don't worry, I'm not going to out you.' But if there is a criminal investigation under way, you can't escape the inference that you are calling to coordinate your stories. You go very quickly from being a stand-up reporter to impairing a criminal investigation."
A second reason that federal investigators were suspicious, sources said, is that they believed that after the September 29 call, Novak shifted his account of his July 9, 2003, conversation with Rove to show that administration officials had a passive role in leaking Plame's identity.
On July 22, 2003 -- eight days after the publication of Novak's column on Plame -- Newsday reporters Timothy Phelps and Knut Royce quoted Novak as telling them in an interview that it was White House officials who encouraged him to write about Plame. "I didn't dig it out, it was given to me," Newsday quoted Novak as saying about Plame. "They thought it was significant. They gave me the name, and I used it."
If Novak's interview with Phelps and Royce was accurate, sources said, it suggests that Rove was actively involved in trying to expose Plame's CIA job.
Novak did not speak publicly on the matter again until September 29 -- later on the same day as his conversation with Rove in which he assured the president's chief political aide that he would protect him in the forthcoming Justice Department investigation. What Novak said publicly was different from the earlier account in Newsday:
"I have been beleaguered by television networks around the world, but I am reserving my say for Crossfire," Novak said on his own CNN program, which is no longer on the air. "Nobody in the Bush administration called me to leak this. In July, I was interviewing a senior administration official on Ambassador [Joseph C.] Wilson's report [on his Niger trip], when [the official] told me the trip was inspired by his wife, a CIA employee working on weapons of mass destruction. Another senior official told me the same thing.
"As a professional journalist with 46 years' experience in Washington, I do not reveal confidential sources. When I called the CIA in July, they confirmed Mrs. Wilson's involvement in a mission for her husband on a secondary basis, who is -- he is a former Clinton administration official. They asked me not to use her name, but never indicated it would endanger her or anybody else."
In explaining the discrepancy between what he told Newsday a week after he outed Plame and everything he said later regarding Plame, Novak has said that Phelps "badly misquoted" him. Phelps, who is Newsday's Washington bureau chief, denied that, saying he took accurate notes of his interview with Novak and reported exactly what Novak told him.
Novak's quotes in Newsday -- that administration officials had encouraged him to write that Plame worked for the CIA, and that she played some role in sending her husband, Wilson, to Niger to investigate claims that Iraq had tried to buy uranium from the African country -- were consistent with the later accounts of the other journalists who had spoken to White House officials for their stories on Plame. Those reporters included Judith Miller of The New York Times and Matthew Cooper of Time magazine. Government witnesses who have testified in Fitzgerald's investigation have consistently told that story, too, sources said.
Novak's disclosure of Plame's covert CIA job was part of a broader White House effort to discredit Wilson, who had alleged that the Bush administration had misrepresented intelligence information to make the case to go to war with Iraq.
To blunt Wilson's criticism, Rove; I. Lewis "Scooter" Libby, the then-chief of staff to Vice President Dick Cheney; and at least one other senior administration official mounted an intensive effort alleging, among other things, that Wilson's CIA-sponsored mission to Niger amounted to nepotism.
Rove, Libby, and at least a third administration official told Novak, Cooper, Miller, and Walter Pincus of The Washington Post about Plame's CIA job. Rove has said he discussed Plame with Novak and Cooper.
A third reason that investigators are said to be concerned about a possible cover story was the grand jury testimony of both Novak and Rove about their July 9, 2003, conversation. On that day, Novak was still reporting for his July 14 column.
Novak and Rove have testified that it was Novak, not Rove, who raised the subject of Plame's CIA job and Wilson's trip to Niger, according to people familiar with the testimony of both men.
Rove has testified that he simply told the columnist that he had heard much the same information about Plame, which perhaps was nothing more than an unsubstantiated rumor. Novak's account of the July 9 call matched Rove's. Investigators were suspicious that, if this version was true, the columnist would have relied on Rove as one of his two sources to out Plame as an "agency operative."
Ashcroft was advised during the briefing that investigators had strong reservations about the veracity of the Novak and Rove accounts of the July 9 conversation. If Rove had simply said that he heard the same information that Novak did, investigators wondered why Novak would have relied on such an offhand comment as the basis for writing the column. Investigators also wondered why Novak had not at least asked Rove about what else he knew about Plame, sources said.
Geneva Overholser, a journalism professor at the University of Missouri, questioned the propriety of Novak's using Rove as a source on the Plame story if, in fact, Rove had passed along only unsubstantiated gossip.
"It's very hard for me to believe that any journalist would write a story of such importance based on someone making an offhand comment that 'I heard that too,'" Overholser, who is a former chair of the Pulitzer Prize board and a former editor of The Des Moines Register, said in an interview. "A comment like that could mean that it's just the gossip going around. That means something very different than an affirmation to go with a story. If that was the basis for Novak's story, it was the slimmest of reeds."
Weighing the Facts
Rove and Novak, investigators suspect, might have devised a cover story to protect Rove because the grand jury testimony of both men appears to support Rove's contentions about how he learned about Plame. Rove has testified that he did not learn that Plame was a CIA operative from classified information, that he was not part of a campaign with Libby or other White House officials to discredit Wilson or out Plame, and that any information that he provided Novak and Cooper about Plame's CIA job was only unsubstantiated gossip.
According to sources, Rove told the FBI and testified to the federal grand jury that he first heard that Plame worked for the CIA from a person whose name he could not remember. That person, he said, might have been a journalist, although he was not certain. Rove has also said that he could not recall whether the conversation took place in person or over the telephone.
Rove has testified that he heard more about Plame from Novak, who had originally called him on July 9 about an entirely different matter. It was only at the end of their conversation that Rove heard that Plame worked for the CIA and had some role in sending her husband on his CIA-sponsored trip to Niger, Rove has testified. Having been told this information by Novak, Rove told the FBI, he simply said he had heard the same thing.
Rove told the FBI that on July 11, 2003, two days after his conversation with Novak, he spoke privately with Libby at the end of a White House senior staff meeting. According to Rove's account, he told Libby of his conversation with Novak, whereupon Libby told him that he, too, had heard the same information from journalists who were writing about the Niger controversy.
Rove has testified that based on his conversation with the first person he had spoken to (whom he cannot identify), what Novak told him, and what Libby said, he had come to believe that Plame might have worked for the CIA.
The grand jury indicted Libby in the CIA leak case last October on five counts of making false statements, perjury, and obstruction of justice for attempting to conceal his own role in leaking information about Plame to the media. Central to those charges are allegations by Fitzgerald that Libby first learned that Plame worked for the CIA from Vice President Cheney and other government officials, not journalists.
On July 11, 2003, the same day Rove says he spoke to Libby, Rove told Time magazine's Cooper that Plame worked for the CIA. Although Rove has said he has little recollection of his conversation with Cooper, he has testified that similar to his conversation with Novak, he passed along to Cooper the same rumors about Plame he had originally heard from journalists.
Fitzgerald is still investigating Rove for possible perjury and obstruction of justice for Rove's failure to disclose in his initial FBI interview and his initial grand jury testimony that he had provided information about Plame to Cooper. Rove has said that his failure to disclose his conversation with Cooper was because of a faulty memory.
As Fitzgerald considers whether to bring charges against Rove, central to any final determination will be whether Rove's omissions were purposeful.
Dan Richman, a law school professor at Fordham University and a former federal prosecutor for the Southern District of New York, says that perjury and obstruction cases are difficult to bring. "In many instances, you almost have to literally take the jury inside a defendant's head to demonstrate their intent," he said.
As of now, it appears unlikely that Fitzgerald will bring charges related to the September 29 conversation, according to Richman and other legal experts. Even if the prosecutor and his investigative team conclude that Rove and Novak did indeed devise a cover story to protect Rove, it is simply too difficult to prove what happened in a private conversation between two people.
A longtime friend of Rove, who doesn't have firsthand knowledge of the CIA leak case but who knows both Rove and Novak well, doubts that Fitzgerald could get a conviction -- "as long as neither [Novak nor Rove] breaks, and there is no reason for them to, no matter how much evidence there is. These are two people who go way back, and they are going to look out for each other."
Richman says that a grand jury could consider circumstantial evidence in weighing whether to bring charges, so long as there is also other substantial evidence, and that the prosecutor can present that evidence at trial.
"It's possible that prosecutors would view their [September 29] conversation as the beginning of a conspiracy to obstruct justice, given that they had reason to believe that an investigation would soon be under way," says Richman. "It's even more likely that this conversation would help prosecutors shed light on Rove's motivations and intent when he later spoke to investigators."
-- Previous coverage of pre-war intelligence and the CIA leak investigation from Murray Waas.