Friday, June 16, 2006

Rove: Imposed Immunity?

Kathleen said...
I think there is a scenario where Leopold and his sources were acting in good faith. I don 't know how Jeralyn can say that Rove testified with no 5th ammendment and no safety net. How would she know that?

If Rove was a reluctant witness and was claiming his 5th ammendment rights, and they were arguing different kinds of immunity, say during the 15 hour session, then Fitz could impose immunity on him and completely eliminate Rove's need to invoke his 5th ammendment rights. His status is unclear because it remains to be seen if he obstructs justice even with immunity. Just because Luskins says Rove's been cooperating doesn't mean it's so.

I think the threat of indictment was imminent and Fitz decided to grant Rove immunity even without Rove requesting it, to force him to testify or face obstruction charges. It's called imposed immunity. I love it.
Think about it. If Rove was cleared, wouldn't Fitz have held a press conference? His letter said he doesn't anticipate indicting Rove "at this time". This means he might consider it at a later date. Why would Sanborn refuse to comment on Rove's status, if he got an all clear? I think Fitz was forced to say something by Judge Walton in the Libby case because he wanted clarification on the investigation, most likely because Rove is going to have to testify and if he's constantly taking the 5th, it'll obstruct the trial.

Take heart, Rove's a small fry in this scheme.
I believe I am correct when I say that Judge Walton, hearing the Libby Case, just this past Monday requested clarification of the status of the Plame investigation, no doubt to determine who would be called to testify.

My guess is that Fitz, in response to Judge Walton's request, wrote a letter to Rove, whose testimony he needs in the Libby case. To guarantee that Rove will testify and not take the 5th, I beleive that Fitz imposed immunity on Rove to force him to answer questions, or be indicted for obstruction of justice. He may not be indicated for leaking Plame's name, but he could be inidicted for conspiracy to defraud Congress and the people.

By taking away the legal need for Rove taking the 5th, Fitz boxes him into giving up the whole goddamned WHIG or be indicted for obstruction.

I checked the link to read up on transactional and use immunity and read further, where I discovered 'Imposed Immunity". I said, Ah, hah. I love this concept because it does not require Rove to request it. Rove has no choice. He's forced to take it. YESSSSS!!!! I love the idea of Rove not calling the shots, and not having any say about it but being told what he FUCKING HAS to do, or be FUCKED HIMSELF.
P.S. Think about the timing of this. Dopey and Darth and, it looks like most of the WHIG group, books it to Camp David to hide when they know Fitz has to go back into Court for a Hearing this past Monday, then upstages the whole show buy spiriting off to Iraq, to drown out the headlines and give journalists too much to discuss to ask to see "The Letter". If Luskin got a letter exonerating Rove, wouldn't he have plastered it all over the place?

Instead we had Commander Codpiece, dashing in and out of the Green Zone for a Photo Op and bop back to the Rose Garden to play Alpha Male with a blind man. Boy, talk about Freudian. What if we all took off our shades?

I think they were expecting the worst. But Fitz has gone for the slow fuse. The Big Bang is just around the corner. I can wait till the 4th of July.

i hope she's right

update: kathleen:
"There was really nothing Fitz could do if Rove just took the 5th, and refused to accept a deal, except impose immunity. If Rove can't take the 5th and still refuses to give up the facts, Fitz can still indict him for obstruction of justice."
ftr - here's the article she is referring to, particularly this:
"If you take the Fifth, you won’t have to say so more than a few times. Once you’ve exercised your right to remain silent in response to several questions, and it’s clear that you’re not going to give any further answers, you’ll be excused. However, there’s a hitch. Sometimes, the prosecutor grants immunity to a witness who’s exercising her right to remain silent, to try to force her to testify. It doesn’t matter whether or not you’ve requested immunity. The prosecutor or judge can just impose immunity on you—and then you’re no longer entitled to the protection of the Fifth Amendment (because if you’re immune, what you say can’t be used against you)."
(via don)


noise said...

Excellent analysis by Kathleen.

There are so many problems with this's involvement, Ashcroft and Gonzales's possible obstruction, not knowing all this time later what the Plame outing is really about, etc.

Correct me if I'm off base but I still think that when Cheney's hand written notes on a Wilson op-ed are introduced as evidence...things are NOT what they seem. That alone is a huge red flag.

Add in the Niger forgeries too. Very good discussion somewhere in the blog between Luke and Simon. IMO, both Unger and Corn have added good information to the discussion. Unger puts the entire episode in context and Corn keys in on just how amateurish the forgeries were. The thing I took from the Unger piece was just how pointless Wilson's visit really was. There was no reason for him to go.

Kathleen said...

Not only was Wilson's trip uneccessary, it could have resulted in exactly what it did, a refutation of something Dopey and Darth wanted to use.

Call me ultra cyniucal, but since Plame was working WMD's in Iran, could they have wanted an excuse to put her out of business?

And then we have that computer glitch James Risen mentioned in his State of War, which outed the entire covert CIA team on WMD's in Iran. Still have to recheck that to see when it happened and who got punished for it, etc., now that we're cranking up the Iran stuff.

Kathleen said...

P.S. on Rove/Fitz, I've heard of a pig in a blanket, but now we have a pig in a box, tied up with a blue ribbon.

Anonymous said...

No, a prosecutor cannot impose immunity. Only a judge can do that. The prosecutor's role is to request that the judge grant immunity in order to make the 5th Amendment privilege inapplicable. a prosecutor can (and they frequently do) make an immunity agreement with a targget (or defendant) but that requires consent from the target (or defendant).

It's highly unlikely that is what happened here. Ordinarily, a target would not voluntarily waive his 5th Amendment privilege and testify before a grand jury without immunity. Of course, ordinarily the target is not a presidential advisor in a situation where news of his copping the 5th would have huge adverse political impact for him and his boss the President.

More likely, Rove made a calculated gamble that in the end Fitzgerald would elect not to seek an indictment because the case was tenuous (remember Luskin made sure the Cooper conversation Rove "forgot" was disclosed by Rove through counsel).

In reality, fittzgerald likely needs no formal agreement with Rove to compel his testimony in the Libby case. for the same political reasons he chose to testify before the grand jury he will almost certainly "voluntarily" testify in the Libby case.

People are making all this a lot more complex and mysterios and necessary.

As prosecutor's usually do, fitzgerald simply chose not gamble on a case where there was a high possibility he might lose. Rove is making political decisions as much as he is making "legal ones.

DOJJY said...

good post anon, that scenario is particularly likely since Fitzgerald as much Rove would like to be able to say there is no deal with Rove. If Rove testified under immunity it would make it much easier for Libby's lawyers to divert attention from the heart of the case against him and make it look like he was the set up to be the fall guy while the bigger fish skated.

Rove coming in with no deal removes a very effective weapon from Libby's lawyer's arsenal and will make Rove far more difficult to impeach.

lukery said...

thnx DOJJY and anon.

"Rove coming in with no deal removes a very effective weapon from Libby's lawyer's arsenal and will make Rove far more difficult to impeach."
i presume this argument is that Libby's lawyers can't call Karl a snitch, and argue that he's lying simply to save his skin - is that the beginning and end of it?
and if so, i can see how that would play out in normal cases with 'anonymous' strangers on trial / on the witness stand. does the same hold true in this case - where most people are likely to already be familiar with Rove?

Kathleen said...

Well damn!!! Can Judge Walton impose immunity during the Libby trial if that becomes a problem, then? Rove's in a bind if he snitches. This would make that part easier.

Kathleen said...

Okay guys, I'm not giving up my pig in a box. I don't care if he had to agree to get in the box, as long as that's where he stays.

If a 'deal' is accepting a lesser sentence in exchange for incrimninating evidence against another, and there was talk of the 15 hour session being about Rove refusing to accept a minimum of 5 years in the slammer, then okay, he did not accept a deal. He could take the 5th.

But what if, when Judge Walton asked Fitz to clarify the status of the investigation and who he was calling for witnesses, Fitz asked Walton then for immunity for Rove? That wouldn't be a deal and it might not technically be imposed, but, what the hell real choice would Rove have at that point? Could he really sit up there and take the 5th or rather say he was asked by the Court to accept it. If Fitz has other testimony, he's going to know if Rove lies under oath.

There was also all that chatter about Fitz indicting Luskin as an Officer of the Court because of his meetings with Viveka Novak. It could be considered subourning perjury. I think the two sealed indictments could have to do with these two, to prevent any further crap like that??? Fitz can always withdraw them, perhaps? What's to prevent them from colluding behind the scenes prior to and all during the trial?

Kathleen said...

Anon: I was thinking of immunity for his testimony in the Libby trial, not before the GJ because his answers in that trial could conceiably be incriminating in the leak case.

Given the spookiness of the reports, with no showing of the letter, technically, Luskin could say no indictments for now. Who is to know exactly, till Fitz says it or we can read the damned letter?

lukery said...

one thing i think we can agree on is that luskin's letter probably doesnt say only what he sez it sez

Anonymous said...

Yes, a judge can "grant" a witness immunity during a trial to compel his testimony, without the witness' consent. If a witness states (or indicates through counsel) that he will invoke his 5th amendment privilage against self-incrimination, the court can grant use immunity (meaning nothing truthful the witness states can be used against him and order him to testify.

If the witness still declines to testify he can be found to be in contempt of court and sanctioned -- commonly (think Miller) a witness will be ordered held in custody until he either changes his mind and agrees to testify or the issue becomes moot by resiolution of the case (think Susan MacDougal).

The point about the parties here "agreeing not to agree" wherby it was understood that Fitzgerald and Rove have no immunity agreement but that it was understood that Rove would plead the 5th and then Fitzgerald would ask the judge to grant it and make Rove testify is certainly possible, but it makes little sense for either side. Why would Rove want the torrent of criticism for taking the 5th initially if he knew he would o testify in any event? Why would Fitzgerald want to push one hi key witnesses into taking the 5th and becoming damaged goods? It makes a LOT more sense to think that it is all what it appears:

Fitzgerald chose not to indict Rove because of concerns he might lose the case and rove simply will testify in a manner fitzgerald is willing to accept (at least before the event) as truthfully without immunity.

One thing to bear in mind, is that the letter from Fitzgerald to Luskin (Rove's attorney) almost certainly does what Luskin says: formally notifies Rove that Fitzgerald will not seel an indictment at this time and does not anticipate doing so unless something changes. It probably also says nothing of substance more than that, meaning it does not say Fitzgerald believes Rove is innocent, that insufficient reliable evidence to convict exists, or that Fitzgerald won't seek an indictment if things change (lots of possibilities there: new evidence fromn sources other than Rove, Rove failing to cooperate as anticipated even though there is no "agreement;" Rove testifying inconsistently with what he has previousl said, or telling a "new" lie, etc.")

The ONLY things that I think have been established is that Rove was not indicted as claimed by Truthout and the Truthout has told many many lies since it initially published the story claiming there had been an indictment.