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Viveca Novak Takes Leave of Absence From Time

By Jeralyn, Section Valerie Plame Leak Case
Posted on Sun Dec 11, 2005 at 09:35:55 AM EST
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Viveca Novak's first person account of what transpired between her and Karl Rove's lawyer is up (free link) at Time. It's a biggie. Shorter version (my interpretation): If Karl Rove doesn't get indicted for perjury, it will be because of Viveca Novak. Viveca tipped Luskin off that Karl Rove had talked to Matthew Cooper in either March or May, 2004, after his February grand jury appearance. That sent Luskin on the hunt for documentation, and when he found the Hadley e-mail, he turned it over to Fitz.

What's astonishing about the article is that Viveca didn't tell Time Magazine editors what she had done until after she had hired her own lawyer and debriefed with Fitzgerald. She didn't tell them until she got a formal subpoena. She's now on a "mutually agreed upon" leave of absence from the magazine.

Not only that, but she kept writing about the case. Her article on Bob Woodward's surprise involvement in the case was written after she debriefed with Fitzgerald.

Here's Viveca in her own words:

Here's what happened. Toward the end of one of our meetings, I remember Luskin looking at me and saying something to the effect of "Karl doesn't have a Cooper problem. He was not a source for Matt." I responded instinctively, thinking he was trying to spin me, and said something like, "Are you sure about that? That's not what I hear around TIME." He looked surprised and very serious....Luskin walked me to my car and said something like, "Thank you. This is important."

It appears Luskin told Fitzgerald the date of their meeting was March, 2004. Viveca initially could only remember meetings with Luskin in January and May, 2004, although she says they met about five times since October, 2003:

Fitzgerald had asked that I check a couple of dates in my calendar for meetings with Luskin. One of them, March 1, 2004, checked out. I hadn't found that one in my first search because I had erroneously entered it as occurring at 5 a.m., not 5 p.m.

The problem with the new March date was that now I was even more confused--previously I had to try to remember if the key conversation had occurred in January or May, and I thought it was more likely May. But March was close enough to May that I really didn't know. "I don't remember" is an answer that prosecutors are used to hearing, but I was mortified about how little I could recall of what occurred when.

Here's Vivan's mea culpa:

I hadn't intended to tip Luskin off to anything. I was supposed to be the information gatherer. It's true that reporters and sources often trade information, but that's not what this was about. If I could have a do-over, I would have kept my mouth shut; since I didn't, I wish I had told my bureau chief about the exchange.

Bottom line: Karl Rove's chances of escaping a charge of perjury before the grand jury increase. But, I believe he's still on the hook for lying to federal investigators before the grand jury was convened in October, 2003 when he failed to tell them about his July 8, telephone conference with reporter Bob Novak when he reportedly said, after Novak told him all about Wilson's wife, "I heard that too."

Fitzgerald wants to know where he heard it and from whom. Was it from Libby? Was it from someone who had seen the June 10 memo? If so, then he lied to investigators when he told them he first learned about Wilson's wife from a reporter. Fitzgerald is trying to determine if there was there a plan to discredit Joseph Wilson by claiming to reporters that spousal nepotism was involved in choosing him to go to Africa to check on the Iraq-uranium story. It doesn't seem to me that Rove is cleared of this charge just because he didn't know Valerie Plame Wilson's name.

I'll stand on my prior predictions. The best Karl Rove can hope for is a false statement charge. He's not getting a pass, and Viveca only helps him avoid a perjury and possibly an obstruction charge.

Other takes: Reddhedd at Firedoglake; Atrios; Tom Maguire at Just One Minute;Empty Wheel; Needlenose.

Some remaining questions:

Luskin was representing Rove in October, 2003. Was he with Rove when Rove was interviewed that month by FBI investigators?

When did Luskin find and turn over the Hadley e-mail to Fitzgerald? Had Hadley already turned it over or disclosed it?

When did Rove disclose his July 8 conversation with Bob Novak? Does he dispute or acknowledge telling him "I heard that too"?

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    Viveca Novak Takes Leave of Absence From Time | 19 comments (19 topical)
    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:52 PM EST
    V novak said, "That's not what I heard at Time." Big screwup there Viv. What goes on at Time needs to stay at Time. Very questionable ethics Viv. You got played by "your friend" Luskin. In DC it's not about friends... it's about what I need from you. You have to stay alert and not get halfway into the wine and tell them what you know at Time. You had a duty to keep your mouth shut. Luskin had a duty to lull you into an alibi to get his client off the indictment list.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#2)
    by kmdala on Sat Dec 17, 2005 at 01:06:52 PM EST
    I believe that you have mistakenly put Robert Luskin's name where you should have put Karl Rove's in a sentence in this article?

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    kmdala, thanks, I meant to say when Karl Rove talked to Matthew Coooper, I fixed it. Good eye!

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    After looking at Redd's take on this at Firedog Lake I am less inclined to believe any of this is going to help Rove in any way.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#5)
    by jamesepowell on Sat Dec 17, 2005 at 01:06:53 PM EST
    As this affair plays out, it appears that Rove & Co. will get away with a crime committed in broad daylight. The sycophantic corporate press/media not only helped them commit the crime, they helped them get away with it.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    I just do not get the logic here. Are we supposed to accept that Rove talked with Cooper to push what they (VP office, and or WHIG) decided would be demeaning information about Wilson, than told his secretary to make sure that the phone call does not appear in the log, went on to send an e mail to Hadley whose content is designed to cover up what he just did? The next step is that Wilson somehow picks Rove as the person to blame for what took place. It is allover the news. Rove on the other hand goes on to forget that he was involved. His forgetfulness seems to extend to the point that the e mail he sent to Hadley, an e mail that contains the names Cooper and Wilson is not discovered. The reason given for this mishap was that the search used the wrong terms. Come on. Than we are to accept that Rove also forgot to tell Luskin about his conversation with Cooper. We also accept that he lied to the FBI about his conversation with Bob Novak. When Luskin hears from V. Novak that Rove was Cooper’s source he runs to Rove to remind him. No sorry wrong, he runs to the e mails and finds the e mail that professionals could not find. That found e mail reminds his client what the truth is which he rapidly runs to tell Fitz.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Hasn't Novak conspired to obstruct justice?

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Maybe you are right, but I don't buy your conclusion that: " The best Karl Rove can hope for is a false statement charge. He's not getting a pass, and Viveca only helps him avoid a perjury and possibly an obstruction charge." If his GJ testimony, at the end of the day, was truthful, and if Fitzgerald can not make a very strong csse that Rove does not have a valid recantation defense because he knew that ultimate discovery of the truth was inevitable, then there is no way Rove would be indicted for prior false statements to investigators. Yes, theoretically, he could, but having worked as a defense attorney in numerous white collar crime cases, I can't imagine a prosecutor bringing a false statement charge in these circumstances for a strong policy reason-- it would discourage defendants from ultimately telling the truth before the Grand Jury. For the DOJ, the GJ is the ultimate fact finding tool, and anything that weakens the incentive for witnesses to tell the truth is bad. I have had two clients who I let testify before a GJ that I otherwise would have told to take the Fifth for the simple reason that it gave them the only chance they had to correct misleading testimony they had given investigators when first interviewed by investigators. If Fitz brought a false statement chzrge in the face of a recantation defense he couldn't break, there isn't a defense lawyer in the country who would do anything other than keep his clients in the bunker in such circumstances.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#9)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Jeralyn, I posted the following comment over at Firedoglake. I hope it's ok to re-post it here. It includes some legal questions, and I'd love to get your reaction. It responds to your statement that Viveca's information could save Rove from a perjury charge: I'd like to look at this from the point of view of the prosecutor. Fitz would not indict Rove for perjury simply because something Rove said was untrue. Fitz needs, and probably has, evidence that Rove knew it was untrue. This evidence could include the Hadley email, testimony from Ralston, and perhaps testimony from others who spoke with Rove about his interview with Cooper. That's what it would take to bring a successful prosecution against Rove for perjury, whether or not Rove attempts to recant. Section 1623(d) operates as a bar, not a defense, to prosecution for perjury before the grand jury. That means that the conditions of section 1623(d) must be demonstrated before trial. Redd, please help me out here, but it is my understanding that Rove would first need to file a motion to dismiss the perjury count, and would then come forward with evidence to show that, at the time Rove offered to recant his false testimony, it had "not become manifest that the such falsity has been or will be exposed." It would be Rove's burden to show that this condition was met, probably by a preponderance of the evidence. A judge would decide whether to allow the count to stand, not a jury. If the count is allowed to stand, recantation would not be a defense against the perjury count, although it might go to the question of Rove's intent to deceive. One interesting point about section 1623(d): it speaks to the timing of the recantation, not the reasons for the recantation. In other words, the it is not enough to show that Rove had an innocent reason for recanting; it must be shown that, at the time he offered to recant (October 2004?), Cooper's source was not likely to be exposed. I haven't looked at any case law under this statute, so it it quite possible that the courts look at the reasons for the recantation as well as at the timing. So the question is, will any of this information about Viveca matter? Is it enough to cause a judge to throw out the charge of perjury before the grand jury? Is it really even evidence tending to show that, as of October 2004, Cooper's source was not going to be exposed? I don't see that happening, particularly in light of other evidence that may be forthcoming in a perjury trial. I do have one concern, however, that Fitz's decision to allow Rove to recant may itself bar the prosecution for perjury. The DOJ Criminal Resource Manual provides the following Practice Tip: "If, however, the prosecutor specifically allows a witness to "straighten out" testimony, the government may be estopped from challenging a witness's eligibility to recant. Normally, no perjury prosecution should be undertaken after a solicited recantation, even if the defendant was technically ineligible under Section 1623(d)." here If that tip is valid, it doesn't mean Fitz made a mistake. As I've said several times before, Fitz's goal is not to trap Rove in a lie, but to find the truth. He may have plenty of other evidence against Rove, so that he does not worry about recantation. It is more important to Fitz to get Rove to tell the truth so that the investigation can reach a just resolution. My caveat: although I am an attorney, I don't practice criminal law; I'm not even a litigator. This advice is worth what you paid for it.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#10)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    I seem to remember Judy Miller being taken to the wood shed because she and Scooter Libby shared a meal or something and that this somehow was not to be countinenced. Although it isn't clear why that is so, today we learn that a TIME reporter and Karl Rove's defense counsel are in this habit too. I'm sure this now requires housecleaning at TIME. Reporters should never be allowed to talk to people who have something to gain from conversation. Reporting should be about hurting the right people.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#11)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Dan, I disagree. False statement cases are easier to prove than perjury and have no recantation defense available. Martha Stewart learned that the hard way. But the false statement I'm referring to has nothing to do with Matthew Cooper - which he later corrected. It has to do with where he told investigators he first learned of Valerie Plame Wilson. He reportedly told them he learned of her from a reporter after he read an account in the newspaper. If it turns out he learned of her in June, 2003 or prior to July 8, 2003, when he spoke with Bob Novak, I think he's in trouble. I think putting a client with criminal exposure who could take the 5th before the grand jury is taking a huge risk, but I don't know the facts of your case, so I'm certainly not criticizing your decision. But in this case it doesn't matter because the White House officials were all told they had to cooperate with Fitzgerald. I don't see how Fitzgerald can give Rove a pass if he lied to investigators about where he first learned of the information about Valerie Plame Wilson. I think he can get a sentencing reduction for his cooperation if he gave information about Libby and others, but I don't see how a prosecutor can not charge the offense at all.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Grampa, it's fine to post your comments in both places. You have had a great grasp of this case and I welcome you putting your thoughts here. More on your question later, unless someone else answers it first.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Talkleft:
    But the false statement I'm referring to has nothing to do with Matthew Cooper - which he later corrected. It has to do with where he told investigators he first learned of Valerie Plame Wilson. He reportedly told them he learned of her from a reporter after he read an account in the newspaper. If it turns out he learned of her in June, 2003 or prior to July 8, 2003, when he spoke with Bob Novak, I think he's in trouble.
    Well, he certainly could be. But I think there that Fitzgerald will have to show some kind of proof that Rove deliberately lied about how he learned about Plame - not merely prove that what he said was not true. Fitzgerald doesn't seem inclined to let people pass on false testimony he thinks he can prove. But unless he has new facts on Rove's testimony regarding how he found out about Plame, he probably would have already indicted him - why wait until now? Luskin's 11th hour conversation with Fitzgerald could not have rescued Rove from a deliberately false statement to the FBI. My feeling is that if Fitzgerald had the goods on a false statement charge, Rove would be a defendant already.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#14)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    I think this is the crux of the probable problem with your take: "I don't see how Fitzgerald can give Rove a pass if he lied to investigators about where he first learned of the information about Valerie Plame Wilson." "If he lied" is the key. An intnetional lie to an investigator is one thing, but something that can easily be construed as a lapse of memory, or an answer given before review of the papers by the defendant that even the investigators aren't in posession of, is something else. I've asked the question many times, "Witness, now that your recollection is refreshed...." when they have been blinsided by a document shown to them by, say, an IRS Special Agent, and no one has ever been prosecuted for a prior mis-statement. Is the agent happy? No. Anything he can do about it? No. Not the same situation, but the later finding of a document after a case has moved from an adminstrative investigation to a GJ investigation isn't that much different from a policy standpoint. And I think the excerpt from the manual cited by the commenter above might also be a problem-- Rove was given an opportunity by Fitzgerald to go back to the GJ-- which tells me that Fitzgerald is playing it straight by the rules, not playing "gotcha" and using the GJ to find as much of the truth as he can. Is there an estoppel problem as that post suggests there might be? Not strrictly speaking. I will repeat, and this was the real point of the above post, policy considerations encourage maintaining incentives for witnesses to tell the truth in front of GJ's. As you may or may not know, virtually all criminal tax fraud cases of any significance have to be finally signed off on by the Tax Division of the DOJ before an indictment can be brought. I have learned from my experience that at the top levels of the DOJ profesional staff, they recognize that GJ's have tremendous power, and are very concerned that the process not be abused or shown to be nothing but traps for the unwary. There is no question that Luskin talked to Fitz before he sent Rove back to the GJ. If this is the only issue, false statement in a case where Rove would have a valid recantation defense, that really would look like trickery to any defense attorney I know, and none of us would ever, under any circumstances, ahve a witness recant a prior false statement. That might lead to more prosecutions for false statements, but there would be less truth discovered by GJ's. Policywise, that is back asswards, and Fitz is bound by DOJ policy. (I'm told by attorney's he has dealt with tht he is as straight down the middle as it gets.) Oh, and as for the cases I mentioned, some times you get a client after they have already talked with an investigator. When you have the broom at the circus and they point you to the elephant, you don't have much choice but to sweep up the crap as best you can.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Bottom line, Fitz prepped a GJ, got a sworn deposition, and presented it to the GJ. He new what she was going to say. He didn't have her say it to tell the GJ, "here is the reason I'm not going to indict." More like, "here is their lame*** excuse." That he did present her testimony tells me that he will indict and on the charges that she was set up to refute. I can't wait for the "I guess Karl Rove just wasn't that smart after all" comments to start coming in.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#16)
    by ltgesq on Sat Dec 17, 2005 at 01:06:53 PM EST
    Speaking as a "blue collar" criminal lawyer, I can't get a grip on what these lawyers are trying to do with all the blabbing to the press. The only time you start putting stuff out is when the government has smeared your client. Otherwise, you keep your damn mouth shut. The first thing i tell my clients in a high profile cases, is that if you see my name or anything about your case in the paper, you should be nervous. I know a lot of lawyers that can't keep their mouths shut when they see a reporter, let alone when they drink with them in the middle of the day. But lets assume that perhaps Mr. Luskin hasn't been given any information from his client and happens to be finding out everything from his drinking buddies. It wouldn't be the first time that a lawyer was lied to and manipulated by his client. It would tend to answer the question of why Luskin was looking for information himself. He was looking for it because his client lied to him about it. Then, there is the "come to jesus" meeting, and you figure out how to fix the problem. So, to luskin he discovered the cooper issue after a few drinks with novak, and then creates with Rove the neww theory that this exchange "reminded" rove of the chat with cooper. Once luskin confronts rove about the lie on cooper, Rove has to create a new lie. There isn't enough money in the world for me to represent someone like Rove. He thinks he is brilliant, and he has powerful people as friends. It makes him entirely impossible to manage. Every criminal i have ever represented has thought they were smarter than they actually were. Rove is no different.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#17)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:53 PM EST
    Will the circle, be unbroken? Luskin is trying to hedge the one worm who can flip the bill. Bob Woodward. By using Novak to background coinciding vague feilures at recollection it leaves one person to verfiy this stuff. Now Fitz has statements of record contradicting evidence but probably cannot get full archival access due to Executive Privilege. Odds are one Bob Woodward was there to hear all of this in whole or part. He was probably used as a parallel "source" reference for anyone who came across the same conversations. Woowdard won't out sources, and vice versa, but imagine the use of Bob Woodward as a leak once the initial INTEL breach occurred and each compromised reporter then runs on an understanding not to out each other, clinging falsely to standards, and compromising the ethics and protections in so doing. Can they parse terms and consider Bob(Woodward) and (Viveca) Novak to be "Bob Novak" and thus mask timeline breach? Leave no stone unturned. Remember Bob Woodward has already made conflicting and misleading statements in regard to his role and assessments. You really think he wouldn't carry the water, given they hedged him with exclusive access, when so doing would not be disclosed and help him literally pad the page script? Think about it, he creates more references and background without any risk and still maintains essentially exclusive contact. They did the same with stories outside of the United State via the INC/Judith/Rendon as is being noted more on dkos at this time: http://www.dailykos.com/story/2005/12/11/232153/13 Why not use the same policy doemstically when one assumes that nobody would challenge Woodward? Bob Woodward's boss probably needs to meet Fitzgerald again.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:54 PM EST
    Ltgesq:
    t would tend to answer the question of why Luskin was looking for information himself. He was looking for it because his client lied to him about it. Then, there is the "come to jesus" meeting, and you figure out how to fix the problem.
    It's far from a slam dunk that Luskin was looking for information. Vivica seemed to think that she was pumping Luskin for information and using their little chats to stay on top of developments. Novak's column seems to suggest that the Cooper tip from Novak came from Novak trying to read too much into what Luskin said. Still, you could argue with some force that Luskin was fishing for just what he got, and Novak didn't just bite, she jumped in the boat. It would presume Novak was way more naive than a reporter on the Washington beat aught to be, but that is certainly not impossible. And who knows - maybe Luskin is just way sharper than Vivica - that's certainly not too much of a stretch. I have had drinks with attorneys who are friends of mine, and they have disclosed information to me about cases that I wondered if they should have. My experience is this sort of "innocent" conversation happens quite often, although I am admittedly not a member of the press corps. All I can say is that if Rove really deliberately lied to the Grand Jury and avoids a perjury rap, he needs to double Luskin's salary for coming up with a plausible explanation for that lie.

    Re: Viveca Novak Takes Leave of Absence From Time (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:55 PM EST
    Hate to be difficult, but I'm convinced Viveca Novak's account of her conversations with Luskin can only increase Rove's jeopardy. If the Novak/Luskin conversation took place before Rove's 1st grand jury appearance, it should be a lock to prove perjury and obstruction. Even if the Novak/Luskin tete-a-tete came after his 1st appearance, Rove had months and two subsequent appearances when he could have corrected his erroneous recollection. And didn't. Not until it became painfully obvious that Matt Cooper was going to be forced to testify. Most damningly, Rove sent a contemporaneous e-mail detailing his conversation with Matt Cooper to Stephen Hadley, and a primarily African-American jury in D.C. is not going to give fat wise-ass white boy a get out of jail free card based on a bad memory excuse. Rove and Luskin tried to get cute with Fitzgerald, and I can't believe that Luskin was naive enough to believe anything Rove told him. If he did, he may wind up being very sorry the day he took that first call from Turd Blossom.

    Viveca Novak Takes Leave of Absence From Time | 19 comments (19 topical)