Rove's return to the grand jury: A "stunning" and "ominous" sign

Legal experts say that you don't go back to the grand jury unless you think you're in serious trouble already.

Published October 6, 2005 8:50PM (EDT)

So Karl Rove is returning to testify before the grand jury investigating the outing of Valerie Plame, and he's doing so without any guarantee that Patrick Fitzgerald won't prosecute him. How big of a development is this? "Stunning," a former federal prosecutor tells us. "There is no reason for Rove to make this appearance unless he and his counsel believe he is at serious risk of indictment. None."

It's always risky to go before a grand jury. You can't take your lawyer into the room with you, and you don't know what the grand jury knows or doesn't know. It's especially risky if you've already testified once -- or, in the case of Rove, three times -- before: The odds of introducing inconsistencies into your testimony increase each time you give it. That's why, the former prosecutor tells us, a defense lawyer would advise his client to make a return appearance before the grand jury only in extreme circumstances.

New York University law professor Stephen Gillers offers a similar assessment to the Associated Press. He calls Rove's return trip to the grand jury room an "ominous sign" that suggests Fitzgerald "has learned new information that is tightening the noose" around Rove's neck. "It shows Fitzgerald now, perhaps after [Judith] Miller's testimony, suspects Rove may be in some way implicated in the revelation of Plame's identity or that Fitzgerald is investigating various people for obstruction of justice, false statements or perjury. That is the menu of risk for Rove."

It's possible, of course, that Rove is returning to the grand jury in the hope of saving someone other than himself. Conversely, it's also possible that he's testifying in the hope of implicating someone other than himself.

But what's clear, either way, is that Rove himself is now at risk of prosecution. According to the AP, Fitzgerald has sent Rove's legal team a letter in connection with his upcoming testimony in which the prosecutor says he can't guarantee that Rove won't be charged with a crime. The U.S. Attorneys Manual requires federal prosecutors to issue such a warning before anyone they consider a "target" or a "subject" of an investigation appears before a grand jury. As the manual explains, "target" is "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant." A "subject" is "a person whose conduct is within the scope of the grand jury's investigation."

So is Rove a "target" or at least a "subject" now? We don't know for sure, but the fact that Fitzgerald felt compelled to give him a warning suggests that he might be.

But isn't Rove's lawyer still insisting that his client hasn't been told he's a target? Not exactly. Back in July, Robert Luskin told the Los Angeles Times that prosecutors had told him previously that Rove was not a target and that he had been "advised recently that his status has not changed." But when the AP asked Luskin about Rove's status today, he answered the question more narrowly. "I can say categorically that Karl has not received a target letter from the special counsel," he said.

Got that? "Karl has not received a target letter." Has his attorney received such a letter -- or has Rove or his attorney been informed in some other way that Rove is now a target? Luskin's previous statements on the matter would have swept away such possibilities. His narrow words today do not.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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