So will Leopold out his sources now? Ed Schultz asked Leopold that question on his radio show this afternoon. Leopold said no. "This is a team effort, and I am not the only one working this," he said. "This is an effort by Truthout." Schultz cut Leopold off, saying that he and Truthout "may have some tough integrity and credibility issues down the road." "Yeah," Leopold said, "and we're actually working on that." Schultz asked Leopold why he'd want to protect his sources at this point. Leopold's response: "That's an excellent question. I've got to be honest, Ed. I don't have an answer at this moment."
It doesn't matter if the sealed indictment in case 128 is for Dick Cheney (and I'm not implying it is) or anyone else connected to the Plame investigation. Jason's article of May 13 said Karl Rove had been indicted. I agree with Tim Grieves who writes today:
The Truthout headline on Leopold's May 13, 2006, story said: "Karl Rove Indicted on Charges of Perjury, Obstruction of Justice." If Rove really was indicted sometime before May 13, 2006, even if something happened in the ensuing weeks to turn that indictment into a nonindictment, then the central premise of Leopold's story may not have been wrong. But if Karl Rove was never indicted in the first place, even if Fitzgerald planned to indict Rove before something changed his mind, then Leopold's report was wrong --"particularly wrong" -- no matter what may have happened in the meantime.
Jason and Truthout may be correct that case 128 pertains to the Valerie Plame investigation. And maybe not. The grand jury hears lots of cases from multiple investigations. This grand jury is not limited to the Plame investigation.
Bottom line: Truthout's Marc Ash is calling the shots now, not Jason. There could be costly legal ramifications to wrongly outing sources. I don't blame Marc Ash for wanting to be sure.
But Jason's article was specific about an Indictment of Karl Rove, not someone else, a meeting lasting into the wee hours at Patton Boggs, the Indictment being shown to Rove and Rove being given an ultimatum for a deal. If there never has been a Rove indictment, sealed case 128 is irrelevant to Jason's article. Jason's sources were wrong and should be outed.
Tim Grieves asks whether Ash and Leopold didn't confuse 128 with a different case, such as 06mc128, relating to Time Magazine's challenge of a subpoena in the Libby case. I don't think so. 06cr128 clearly a criminal case separate from the Time "mc" case. There's also a civil case with the number 128, 06cv128. Courts don't make those kind of designation errors and if they did, they'd correct it immediately and there would be no 06cr128 still on Pacer.
A note as to my research: When Jason first wrote Rove had been indicted, I methodically searched all of the cases that week on Pacer. As cases were unsealed, I read all the Government's motions to seal and unseal and the rest of the pleadings.
In addition to the sealed District Court case (128) there were also three magistrates' cases that were sealed that week. I checked those thinking that someone in Plamegate might have a deal to plead to a misdemeanor Information (rather than an Indictment) which could keep it out of District Court. There were a few that week between case numbers 208 and 213. As of yesterday, only case 212 appears to still be sealed.
So there remain two sealed cases, one in District Court and one in Magistrate court that could be for Joe Schmo or for someone connected to PlameGate.
Unless Case 128 was a Rove indictment that for some reason Fitz later moved to dismiss, which seems very unlikely given Fitzgerald's statement to Luskin that he doesn't anticipate charges to be brought and Luskin's unequivocal statement that there have been no deals or agreements, I think Jason's sources have now been proven wrong.
Fitzgerald's refusal to comment on Luskin's statements today that Rove will not be charged leads me to believe Luskin is telling the truth. I believe Fitzgerald would correct the record if it were not true.
As to secret deals or "gentlemen's agreements" between Karl Rove and Fitzgerald, I don't see it. If there was any kind of deal to dismiss an Indictment, and Rove was going to be a cooperating witness against him, Libby's lawyers would have to be told and Luskin would be a fool for publicly asserting otherwise.
One more item: As to Karl Rove's cooperation. I believe (as I've written many times) that he began cooperating in early 2004 with the Hadley e-mail, and has been cooperating ever since, providing whatever information Fitzgerald wanted about anyone connected to the leaks investigation. I think he really amped it up in October, 2005, before the Libby indictment. He may well have put the final nail in someone else's coffin. But, Fitzgerald and his lawyer were smart enough not to make the cooperation a quid pro quo -- so that Rove can continue to claim he cooperated as a civic duty, not for any personal gain. As I wrote here, that pretty much makes Rove an unimpeachable witness against Libby or whomever Fitz goes after next.
As to why Fitz would only say he doesn't anticipate indicting Rove rather than saying Rove has been cleared and never will be indicted, consider this. What if he publicly cleared him and Rove then testified for Libby's defense team and said something different than he told the grand jury? Fitz needs to remain free to charge Rove in that event. Also, if the investigation is continuing, new information could develop, particularly if Fitz continues to turn putative defendants. One might convince him Rove lied. Both of these situations are unlikely to occur, but Fitz needs to protect his ability to act against Rove if they did happen. That's what lawyers do, they try to cover all the bases.
Additional item: Why did all this come out today? I suspect it's because there was a hearing in the Libby case yesterday and Karl Rove's status came up. Fitz has refused to disclose information on Rove because the investigation was continuing. The Judge has set a January trial date and doesn't want a continuance.
I discussed much of this tonight with Sam Sedar on Air America Radio. Sam is a great host, he knows just what questions to ask. Don't forget to get his book, FUBAR.
I'll end where I began, with Jason, Truthout and Case 128. Based on what we know now, I think it's fair to say case 128 was not an Indictment of Karl Rove. Which means, Jason's sources were wrong. Truthout should authorize Jason to disclose their identify.
Update: Maybe I was too harsh on Truthout. As a compromise to outing their sources, if their sources in good faith relayed information they received from people they believed credible, Truthout should consider just retracting Jason's article based on Luskin's statement which has not been contradicted by Fitzgerald, and say they are retracting it because current information indicates it was wrong. They could also say they are not outing their sources because they are convinced their sources did not lie to them but may have received inaccurate information. If the sources didn't lie, but merely were wrong, perhaps Truthout is right not to out them. What is the journalistic code of ethics on this? Thoughts?
