Peter Zeidenberg, a Justice Department prosecutor working with Fitzgerald, called Levine that day to discuss a conversation Levine had with Rove on July 11, 2003, the day Rove spoke with Cooper, according to Daniel J. French, Levine's lawyer.

Levine, part of the White House communications team at the time of the leak, "was contacted as a witness," French said. Levine told Zeidenberg that he and Rove did not discuss Cooper in that conversation, according to a person familiar with the discussion.

It sounds like Rove is desperately trying to avoid a perjury charge and Fitzgerald is trying to give him every benefit of the doubt by satisfying himself that there are no witnesses, only the lone e-mail to Hadley, referring to Rove's talk with Cooper. Then he might accept that Rove simply forgot, as Rove reportedly later told the grand jury.

Yesterday I speculated that Fitzgerald might consider a recantation defense for Rove on any perjury charge, under the grand jury perjury statute 18 U.S.C. 1623(d).

(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed. (my emphasis)

A little legal research shows this defense likely will be unavailable to Rove, which may be why his lawyers are posturing his ommission as "I forgot" rather than as a knowing misstatement.

While there is a split among the circuits as to whether the language of this section of the statute, which uses the word "or," really means "and," unfortunately for Rove, the DC Circuit Court of Appeals has ruled in favor of the "and" interpretation. (For legal eagles out there, see U.S. v. Moore, 613 F.2d 1029 (1979).) This means any misstatement by Rove to the grand jury must not have "substantially affected the proceeding," AND that the recantation must occur befor it was obvious it was going to be exposed. From the opinion:

Normally, of course, "or" is to be accepted for its disjunctive connotation, and not as a word interchangeable with "and." n84 But this canon is not inexorable, for sometimes a strict grammatical construction will frustrate legislative intent. n85 That, we are convinced, is precisely what will occur here unless "or" is read as "and."

Recantation, for all its value in ultimately unveiling the truth, may well prove to be a disincentive to veracity in the first instance; to the extent that a perjurer can sidestep prosecution simply by recanting, he is hardly the more prompted to tell the truth in the beginning. n95 By the same token, the deterrent effect of any statute punishing perjury is weakened in the same measure that recantation holds out the promise of possible escape. And indisputably, maximum deterrence of perjury is necessarily inconsistent with maximum range for recantation.

We conclude that Congress did not countenance in Section 1623(d) the flagrant injustice that would result if a witness is permitted to lie to a judicial tribunal and then, upon only learning that he had been discovered, grudgingly to recant in order to bar prosecution. It has been held implicitly that the recantation provision is available to perjurers only if their previous false testimony has not substantially affected the proceeding And it has not become manifest that the falsity has been or will be exposed.

If Rove didn't turn over the Hadley e-mail until he knew Fitzgerald knew about it, or offer to go back to the grand jury until Fitzgerald knew he had spoken with Cooper, then it would be too late to avail himself of this escape clause. By that time, it was "manifest" that his misstatement would be disclosed.

If Rove does get indicted for perjury, he may wish it had been by the Arkansas Whitewater grand jury. The 8th Circuit (which includes Arkansas) seems to be about the only one that interprets the language as "or" instead of "and." (See, United States v. Smith, 35 F.3d 344, 1994 U.S. App. LEXIS 24487 (8th Cir. Ark. 1994)):

We conclude that to read "or" as "and" in the context of § 1623(d) would "contravene [the Supreme] Court's long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity." Id. Thus, we accord the word "or" its ordinary meaning, reading the statute as setting forth two alternative conditions, satisfaction of either of which will allow a declarant to employ the recantation defense to bar prosecution for perjury.

I disagree with the D.C. Circuit's interpretation. Whatever happened to the rule of lenity, which says that if a law is unclear, it should be interpreted against the party who drafted it and in favor of the person it is being used against? If Congress made a mistake in wording the law, the remedy is for Congress to rewrite the law, not for the Courts to supply their own meaning.

Maybe it's time for the Supreme Court to visit this conflict between circuits. I would think a non-activist Supreme Court like the one Bush is trying to establish that doesn't think Judges should make law might see it differently than the DC Circuit. I bet if Karl Rove is charged and convicted of perjury, that's one issue he'll ask the Supreme Court to review. I wonder how Harriet Miers would rule.

Meanwhile, negotiations may be ongoing. Mike Allen of the Washington Post said tonight on Hardball (quoted on Think Progress):

MIKE ALLEN: A lot of activity happening that we’re not seeing. A likely scenario for what happened today, Patrick Fitzgerald got some indictments from this grand jury. He is now able to go to the…

CHRIS MATTHEWS: You think they’re sealed right now?

MIKE ALLEN: Very possible. What I’m told is typically, in a case like this, he could get the indictments and now he can go to the targets and say, you can plead to these or I’ll go back Friday and get more. You have 12 to 24 hours to think about it.

CHRIS MATTHEWS: And he can give them a little Whitman Sampler of suggestions pleading to the charge of obstruction or perjury or…

MIKE ALLEN: I can add a bunch of counts. You can take a couple of counts or we can do a bunch more.

I do not think the Grand Jury will be extended. Although, Steve Clemons of the Washington Note reports that Fitzgerald signed a new lease for office space this week for the Special Counsel's office, so who knows?

Update: Jane at Firedoglake notes that Laura Rozen of War and Piece made a great observation about Levine back in 2004:

It's kind of interesting -- that Adam Levine's job was to book White House officials on TV news and talk shows. He doesn't sound like he's the kind of senior official or has the job description to have likely known in intimate detail who's who at the CIA. He would have no reason to know about Plame's role, except had he been told by his superiors to try to get his contacts say at NBC to follow this other side of the Wilson story.

Update: It appears that Rove did testify about the Hadley e-mail and his conversation with Cooper in his October, 2004 grand jury appearance.

The White House turned the e-mail over to prosecutors, and Rove told a grand jury about it last year during testimony in which he also acknowledged discussing Plame's covert work for the CIA with Cooper and syndicated columnist Robert Novak. Rove, however, told the grand jury he first learned of Plame's CIA work from journalists, not government sources.

Rove, Bush's closest adviser, told a grand jury the e-mail was consistent with his recollection that his intention in talking with Cooper wasn't to divulge Plame's identity but to caution the reporter against certain allegations Plame's husband was making, according to legal professionals familiar with Rove's testimony.