Wed Jun 21st, 2006 at 06:42:38 PM EDT ::

Sorry for the confusion, yes Jason Leopold categorically denies identifying himself as Joe Lauria. Other hysterias will no doubt evolve by morning and we’ll do our best to address them as they surface. Good night folks.On Sunday, The Washington Post published an article titled, “My Unwitting Role in the Rove ‘Scoop’” by Joe Lauria. It’s a hit piece, plain and simple.

For the record, Jason Leopold is not acting alone on the Rove indictment story. All of TO’s senior editors are participating in interviewing sources, verifying facts and vetting every sentence published before the story goes live.

We find it curious that The Washington Post has taken such a keen interest in Jason Leopold and TO. The Lauria piece is only the latest in a series of pieces published by Post editors attacking – in a very personal manner – Jason Leopold and TO. But there has been no critical assessment of the facts we have reported. Why? Who is directing this smear campaign at the Post and why?

A Rather Backhanded Assault

The Post published Lauria’s article as an opinion piece, but Lauria used that platform to present fact – fact without documentation. In reference to our report that a grand jury has returned an indictment of Karl Rove (a report that we do stand by), Lauria writes, “The report set off hysteria on the Internet, and the mainstream media scrambled to nail it down. Only … it wasn’t true.” He is stating – as a fact – a premise that he does not even attempt to document or substantiate, and the Post is a willing host.

The basis for Lauria’s complaint is that Jason Leopold reportedly used Lauria’s name to get Karl Rove’s spokesman Mark Corallo on the phone … according to, you guessed it, Corallo. For the record, I think Mark Corallo is doing a brilliant job of representing Karl Rove’s best interests as his interface with the media. I also think it’s fair to say that The Washington Post is being way too cooperative – unless they, too, are beholden to Mr. Rove? Everybody hold your breaths waiting for a response from the Post’s ombudsman on that one.

For the record, since the entire basis for Lauria’s story is a poorly defined, and factually uncorroborated version of events promulgated by Karl Rove’s public relations contractor, I think Lauria’s getting a free ride to notoriety from the Post. Apparently Lauria recognized that there was a hot market for hit pieces on Jason Leopold and TO. The Washington Post was buying, and Lauria was all to happy to cash in.

We urge The Post and Lauria to meet the same standard that we have been held to these past weeks – account for your statements, please.

… In a statement, Mr. Luskin said, “On June 12, 2006, Special … Mr. Fitzgerald’s spokesman, Randall Samborn, said he would not comment on Mr. Rove’s status. …

But when you click through to the story you will not find that quote. It appears to have been edited out.

Mr. Fitzgerald’s spokesman, Randall Samborn, had no comment.

Courtesy of Citizen Spook

That’s not the big one, but it does raise questions many bloggers and reporters have begun asking today. If Rove is no longer a target or subject in the Plame leak case, why doesn’t Samborn or Fitzgerald just tell the people the simple truth?

It appears that the truth is not simple.

RANDAL SAMBORN DOES AN ABOUT FACE

OK, here it is, and most of you have probably come across it, so please suspend judgment until we go back a few months for the punchline:

Fitzgerald met with chief U.S. District Judge Thomas Hogan before he notified Rove. Hogan has been overseeing the grand juries in the CIA leak case. Fitzgerald’s spokesman,

Randall Samborn, declined comment. Asked if the CIA leak investigation is still continuing, Samborn said, “I’m not commenting on that as well at this time.”

This is a blockbuster quote. You would think that if Fitzgerald were still investigating the Plame leak, his press officer would tell the public this is an ongoing investigation. And if Fitz had completed his investigation, one would expect Samborn to say that the investigation is complete.

After all, the investigation must be open or closed, right? I’ve never heard of an investigation that’s neither open nor closed. Have you?

That quote by Samborn certainly seemed strange to me and I mentioned it in my speculative report yesterday (more on that below). But yesterday, I downplayed it in my mind because it’s Samborn’s standard pat response, No comment.

NOT!

Today, Samborn’s refusal to confirm or deny whether the investigation remained open haunted me.

The question involves the status of a very public case where people in high Government positions are being accused of treasonous activity, espionage even. Recall that at Fitzgerald’s press conference after Libby’s indictment, Fitz indicated he was considering the Espionage Act to prosecute anybody found responsible for the Plame leak.

The standard Samborn no comment was not appropriate at all for the question asked. Do we have an investigation into who leaked Plame’s name or not? Even for Samborn, no comment seems far too elusive and incendiary. This is the kind of no comment which raises more questions and problems for the public than a simple answer to the question.

So I looked back in time to see if Samborn had ever been asked this question before to see what his response had been in the past. And what I found blew my mind.

Samborn was asked this question in the past, and his answer yesterday signifies a complete change, an about face has been documented. It now appears — based upon a thorough review of Samborn’s prior statements — that the Special Prosecutor’s Office does not know if the investigation will continue. The incredible questions this raises will be addressed below, but first we will examine Samborn’s prior official answers.

From a CBS News Report on October 28, 2005:

Rove’s lawyer said he was told by the prosecutor’s office that investigators had made no decision about whether or not to bring charges and would continue their probe into Rove’s conduct.

Fitzgerald’s spokesman, Randall Samborn, said the investigation will continue but with a new grand jury. The term of the current grand jury cannot be extended beyond today.

There you have it, back in October 2005, Samborn and Fitzgerald (at the Libby Indictment press conference) both unequivocally stated that the investigation was ongoing.

As of yesterday, the official word from Fitzgerald’s office – via Samborn — is:

Asked if the CIA leak investigation is still continuing, Samborn said, “I’m not commenting on that as well at this time.”

Samborn — and by proxy Fitzgerald — have made an official about face. The status of the investigation is now officially in limbo. And I submit to you that neither Samborn nor Fitzgerald are ignorant to the significance of this carefully worded reversal of stated policy pertaining to the status of the investigation.

It just gets stranger and stranger, doesn’t it. You have no idea.

Notice that the above quote taken from October 28, 2005 is attributed to CBS News but the link I’ve provided is to politicalforecast.net . I would love to have provided you a link to the actual CBS news quote. It was originally attributed to CBS News legal analyst Andrew Cohen.

This is the link provided for the original CBS New report by politicalforecast.net

But when you click through to it, you come to a two part article about the Libby indictment which does not include the quote by Samborn stating that the investigation will continue. That quote has been edited out of the article. Click through and you’ll see that the link to the second part of the two part article, dated October 29, 2005, does not contain the Samborn quote, the investigation will continue. When you click the link at the bottom of that page, it brings you to — not part one of the article you were reading — but rather a different article dated October 30, 2005.

Neither link includes the quote by Samborn, the investigation will continue.

It wasn’t just politicalforecast.net who quoted that Samborn statement. You can find reference to it at Think Progress

as well as Democratic Underground.

WHAT DOES IT ALL MEAN?

It means something very strange went down in May, 2006.

Let’s see what we know:

1. We know Fitzgerald’s Office has done an about face with regards to the ongoing status of this investigation.

2. We know that Fitzgerald has not confirmed or denied Luskin and Corallo’s statements concerning Rove being cleared.

3. We know Fitzgerald cannot comment about any activity by the Grand Jury which has been sealed by the court.

4. We know that within three business days of Friday, May 12th 2006 the Sealed vs. Sealed entry was added to the District Court’s Pacer system by Judge Reggie Walton who is presiding over the Libby indictment. According to some excellent detective work by Marie26 at the Democratic Underground discussion board, we know that Case No. 06-CR-128 was probably entered on May 16 or 17th. Since the 17th was a Wed. and the Grand Jury meets on Wed., that date is more likely than the 16th.
5. We know that Rove’s spokesperson, Mark Corallo, when he worked as a press officer for Ashcroft at DOJ, was no stranger to the use of Sealed vs Sealed

WHAT WE DON’T KNOW

1. We don’t’ know if Sealed vs. Sealed is a charge against Rove.
2. Truthout.org claims to have a reliable source informing them that Sealed vs. Sealed was an indictment returned by the Fitzgerald Grand Jury. I have no way of verifying that because there is no official information available about that case. It is completely sealed.
3. Since it carries the CR designation, it must be a criminal case, not a civil case or a motion regarding news sources like Cooper and Miller. Those carry different designations than CR.

CONCLUSIONS

If Luskin and Corallo can quote the fax sent by Fitzgerald, than that document is not sealed and they are legally free to show it to the world. If that fax completely exonerated Rove with no legal implications against the story they have told the world, then one would expect them to print that important exculpatory document. The have refused to show the world and until they do, the entire scenario DESERVES to be examined.

We must examine it in light of Randal Samborn’s strange statements regarding the status of Rove and the entire investigation. If Rove’s people and Fitzgerald are on the same pages, we expect a communication from Fitzgerald to that effect. If Luskin has a document from Fitzgerald that he is legally allowed to quote from, then he is also allowed to show that document.

But he won’t. And Fitz won’t back up those statements.

And Samborn won’t even tell us if the investigation is ongoing. Adding this strange behavior to the existence of Sealed vs Sealed, we must assume there is something very unusual about the Plame investigation now that wasn’t strange before May 2006.

The scenario I speculated upon yesterday — a runaway Grand Jury may have returned charges without Fitzgerald having sought them or signed them — allows all of the parties to be telling the truth.

If that were the case then charges may actually exist and may be the pending case Luskin referred to.

The investigation may have been put on hold due to the unique Constitutional issue such charges would cause. And that might also explain Samborn’s inability to confirm whether the investigation is ongoing.

If the Grand Jury returned charges which were not requested by Fitzgerald, such charges would not be signed by him. In fact, according to Constitutional law, the Grand Jury could eject Fitz from the Court and bring whatever charges they like without him. Such charges might read:

Grand Jury for the District of Washington D.C. vs. Karl Rove

And in that case, the charges may have been sealed until Judge Walton decides how to handle this unique Constitutional exercise of citizen authority.

I have seen various commentary about yesterday’s Citizenspook report alleging that the runaway Grand Jury scenario is not possible since lower courts have held that a prosecution cannot move forward without the signature of a U.S. Attorney. I submit that any lower court ruling which states that is in direct contradiction with the Constitution.

Neither the Supreme Court nor Congress has ever removed the right of Grand Jurors to return charges without a US Attorney’s acquiescence. Far from it.

Please read my previous report on the Constitutional independent authority of Grand Jurors:

TREASONGATE: The Federal Grand Jury, FOURTH BRANCH of the US Government

Justice Scalia, delivering the opinion of the court, laid down the law of the land:

“‘[R]ooted in long centuries of Anglo-American history,” Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It “`is a constitutional fixture in its own right.’” United States v. Chanen, 549 F.2d 1306, 1312 (CA9 1977) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). ‘ ”

Furthermore,

Justice Powell, in United States v. Calandra, 414 U.S. 338, 343 (1974), stated:

“The institution of the grand jury is deeply rooted in Anglo-American history. [n3] The grand jury’s historic functions survive to this day. Its responsibilities continue to include both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions. Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972).”

Is it possible that Fitzgerald had the patriotic audacity to educate the Grand Jury as to their power to return indictments without his approval?

Is it possible that Fitzgerald anticipated interference by forces in the DOJ loyal to the people he is investigating?

Is it possible that behind the scenes the very fabric of our citizen powers to investigate the Government as Grand Jurors is under the final assault of a Government hell bent on destroying the safeguards of our delicate system of checks and balances?

Is it possible that Fitzgerald has spoken to us through Randall Samborn by sending an S.O.S. hidden in the simple quotation, No comment?

There are other possibilities, but none of them allow for all of the players to be telling the truth. I don’t believe Luskin and Corallo would say anything to the public which Fitzgerald could slam them on. Not a chance. Corallo is ex DOJ and Luskin is too skilled to do anything that stupid or unethical. So we MUST assume that Luskin and Corallo have parsed their words within the law and facts.

We don’t have to assume that Leopold and Truthout.org are telling the truth, but all things considered, I believe they have real sources or else they had to know they were committing professional suicide. Their sources could be misleading them, but we have the unique confirmation from major media reporters like David Schuster, and Chris Matthews who also believed Rove had been or was going to be indicted at about the same time Leopold first said that they were.

So if the Grand Jury acted on their own, without the signature of Fitzgerald, then Luskin’s statement that Fitzgerald doesn’t anticipate seeking charges could be true even though charges are pending against Rove. And if the pending case Luskin referred to is actually a charge against Rove, then his statement in this regard is also true.

THE PROBLEM WITH MY ANALYSIS

The problem then is what to do with Corallo and Luskin’s insistence that Rove has not been indicted which is a totally different animal then whether or not Fitz anticipates seeking charges. If the Grand Jury returned charges against Rove on their own volition, how can team Rove’s direct, unqualified insistence that Rove was never indicted square with my theory? An excellent question. Good thing I have the perfect answer. It’s called

PRESENTMENT

From TENNESSEE v. JEFFREY DWIGHT WHALEY:

The grand jury has the power to act independently of the court and the district attorney

General by instituting a criminal action by presentment. State v. Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994). In practice, the district attorney general is informed of the offense, prepares the appropriate charge, and delivers it to the grand jury where it is signed by all members of the grand jury. State v. Hudson, 487 S.W.2d 672, 675 (Tenn. Crim. App. 1972) (citing State v. Darnal, 20 Tenn. 290 (1839)). A bill of indictment, on the other hand, is sanctioned by the district attorney general and signed only by the foreperson and not the other members of the grand jury. State v. Davidson, 103 S.W.2d 22, 23-24 (Tenn. 1937).

Obviously, Tennessee law does not apply. I only cite the case to show the difference between INDICTMENTS and PRESENTMENTS. The Bill of Rights mentions both. And the Grand Jury has the Constitutional authority to return either, but as our system developed certain habits of procedure, charges brought exclusively by the Grand Jury became regularly classified as PRESENTMENTS as opposed to charges brought directly by the U.S. Attorney which are commonly referred to as INDICTMENTS.

Somebody with clout needs to ask Luskin if Rove is the subject of any PRESENTMENTS by the Fitzgerald Grand Jury. Because if the Grand Jury returned charges in the form of PRESENTMENTS, then Luskin and Corallo could steadfastly deny that any INDICTMENTS have been returned against Rove.

These people are professionals. If you give them wiggle room they will use it like a skilled Samba dancer.

PLEASE COPY LINK AND REPOST EVERYWHERE

TPM Muckraker

Responding to news that Karl Rove’s lawyers say they’ve been notified the Bush adviser won’t get charged in the Plame leak investigation, Reader AB asks, “is it reasonable for them to publish the letter from Fitzgerald to prove that their statement says is, in fact, true[?]”

We thought it was a good question — noting, however, that news reports conflict on whether Rove’s lawyer, Robert Luskin, received a letter from Fitzgerald. Luskin himself stated he was “formally advised,” but does not state how.

I called Luskin at his office and told him I was interested to know precisely how Fitzgerald had notified him of his decision. “I’m really not going to add anything to what’s in the statement,” Luskin told me.

Why not? I asked. “The reason is, that’s what we’ve decided to do.” (There’s a $500-an-hour answer for you.)

Luskin’s office sent me a copy of his earlier statement. It reads — in its entirety — as follows:

Washington, DC-Robert Luskin, Attorney for Karl Rove today released the following statement:”On June 12, 2006, Special Counsel Patrick Fitzgerald formally advised us that he does not anticipate seeking charges against Karl Rove.

“In deference to the pending case, we will not make any further public statements about the subject matter of the investigation. We believe that the Special Counsel’s decision should put an end to the baseless speculation about Mr. Rove’s conduct.”

So what’s the deal? Is Luskin bluffing? If he got a letter, why won’t he say so, and release it?

We don’t know. It’s extremely unlikely Luskin would fake something like this — it would demand a wrathful retaliation from the prosecutor, something no defense lawyer in his right mind would do. Perhaps Fitzgerald sent a letter that, while letting Rove off the hook, catalogs a number of sins Luskin would rather not publicize. Perhaps Rove got the assurance as part of a cooperation deal. Who knows.

All we can say for sure is that for the moment, Rove’s apparently in the clear. And Luskin’s not talking.

Update: An earlier version of this post said that no news outlets had reported that Fitzgerald notified Luskin in writing; in fact, the New York Times reported Luskin received a letter from Fitzgerald, while others reported it was in a phone call.

Late Update: Rove’s not cooperating with anybody or anything, spokesman tells Prospect.

By Marc Ash,

Tue Jun 13th, 2006 at 10:48:36 AM EDT ::

Fitzgerald Investigation We are stunned by the magnitude of the reaction to the article we published yesterday morning. We have put our cards on the table. We invite Mr. Luskin to do the same.

To clarify: The entire basis for the information that “Rove has been cleared” comes from a verbal statement by Karl Rove’s attorney. No one else confirms that.

As Karl Rove’s attorney Robert Luskin is bound to act – in all regards – in Rove’s best interest. We question his motives.

Contact us by email.

Here’s a fork, a knife and a spoon – the crow has been boiling all week. You can kindly leave a gratuity for Jason by dropping a comment before you tip back and drink the last, tepid, vestige of gruel left in your bowl. For those who were unneccessarily nasty, don’t let the door hit you on the ass on the way out.

Thanks

The Chef

For the past few days, we have endured non-stop attacks on our credibility, and we have fought hard to defend our reputation. In addition, we have worked around the clock to provide additional information to our readership. People want to know more about this, and our job is to keep them informed. We take that responsibility seriously.

Here’s what we now know: I spoke personally yesterday with both Rove’s spokesman Mark Corallo and Rove’s attorney Robert Luskin. Both men categorically denied all key points of our recent reporting on this issue. Both said, “Rove is not a target,” “Rove did not inform the White House late last week that he would be indicted,” and “Rove has not been indicted.” Further, both Corallo and Luskin denied Leopold’s account of events at the offices of Patton Boggs, the law firm that represents Karl Rove. They specifically stated again that no such meeting ever occurred, that Fitzgerald was not there, that Rove was not there, and that a major meeting did not take place. Both men were unequivocal on that point.

We can now report, however, that we have additional, independent sources that refute those denials by Corallo and Luskin. While we had only our own sources to work with in the beginning, additional sources have now come forward and offered corroboration to us.

We have been contacted by at least three reporters from mainstream media – network level organizations – who shared with us off-the-record confirmation and moral support. When we asked why they were not going public with this information, in each case they expressed frustration with superiors who would not allow it.

We also learned the following: The events at the office building that houses the law firm of Patton Boggs were not in fact a very well-guarded secret. Despite denials by Corallo and Luskin, there was intense activity at the office building. In fact, the building was staked out by at least two major network news crews. Further, although Corallo and Luskin are not prepared to talk about what happened in the offices of Patton Boggs, others emerging from the building were, both on background and off-the-record. There were a lot of talkers, and they confirmed our accounts. We do have more information, but want additional confirmation before going public with it.

THE 24 HOUR THING

We reported that Patrick Fitzgerald had, “instructed one of the attorneys to tell Rove that he has 24 business hours to get his affairs in order….” That does not mean that at the end of that 24-hour period, Fitzgerald is obliged to hold a press conference and make an announcement. It just means that he has given Rove a 24-hour formal notification. Fitzgerald is not obliged to make an announcement at any point; he does so at his own discretion, and not if it compromises his case. So we’re all stuck waiting here. Grab some coffee.