The “Out to Lunch” Defense

Karl Rove’s story doesn’t make sense.

Rove: Shifting memories and BLTs

Another of my former Time magazine colleagues has talked to special counsel Patrick Fitzgerald. This time it’s Viveca Novak, with whom I worked on some stories about the Valerie Plame leak case. According to news reports, Karl Rove’s lawyer Robert Luskin has told Fitzgerald that a conversation he had with Novak led his client, Rove, to change his testimony to the grand jury in the CIA leak case.

I’m not buying it.

Rove first testified before the grand jury in February 2004. In that first visit, he said nothing about talking to Time’s Matt Cooper. He also didn’t mention Cooper in an earlier interview with the FBI. Then, eight months later, in October 2004, Rove returned to the grand jury to alter his earlier account and volunteered that he had talked to Cooper.

According to several witnesses who have been interviewed by Fitzgerald and who have talked to me about their testimony, he appears to be suspicious about that change in Rove’s narrative. The special counsel seems to think Rove remembered his conversation with Cooper all along but only testified about it when it became clear that Cooper was going to be forced to give up Rove as his source. If Fitzgerald thinks Rove willfully held back on him, it could be the basis for a perjury or obstruction of justice charge.

Rove’s lawyer says there’s an innocent explanation. He says it was Viveca Novak’s suggestion that Rove might have been her colleague Cooper’s source that sent Rove and his lawyer to re-examine Rove’s records. In their search, they found an e-mail Rove had sent, shortly after speaking with Cooper, to Stephen Hadley, then deputy national security adviser, telling Hadley about the conversation. After finding the e-mail, Rove revised his account to the grand jury.

But this doesn’t add up. For months before Luskin and Novak talked, the subject of whether Rove had spoken to reporters about Plame was the center of intense national fuss and grand jury scrutiny. Through all of that, Rove failed to remember his conversation with Cooper. Why would his lawyer’s conversation with Viveca Novak kick the recollection free?

Rove is relying on the “what I had for lunch” defense. Who among us, Rove defenders have argued to me, hasn’t had the experience on a busy day where we can’t remember what we had for lunch, or whether we had lunch at all? Bush’s top political adviser has a lot on his plate. Rove can’t reasonably be expected to remember conversations that may have had no special relevance in his mind at the time they took place with a reporter he was talking to for the first time. Scooter Libby seems likely to rely on a version of this defense, too, though, unlike Rove, he has to prove he forgot about many discussions.

It’s true. Karl Rove is a very busy man. He is never at rest even in his own office chair. He spins between multiple computers. His assistants know that in an instant he can be hovering over their shoulders making sure they have the formatting for a document just right. His portfolio seems to include everything but the thickness of the marzipan on the White House Christmas candies. Rove does have a reputation for extraordinary recall when it comes to political facts. But anyone as busy as he is might have forgotten a single conversation with a reporter.

But wouldn’t a man who has such a busy life filled with so many distractions have been extra careful to examine his memory and his files when the question of who revealed the identity of Joe Wilson’s wife started to become an issue? Lots of important people in Washington were asking, and some of them had subpoena power.

The first time Rove must have considered the question of whether he’d talked about Joe Wilson and his wife was on July 14, 2003, just three days after he spoke to Cooper. That’s when a story appeared by Bob Novak (no relation to Viveca) revealing that Wilson’s wife worked at the CIA. A source close to Rove confirmed to me the widely held speculation that Rove was one of Novak’s sources. The story caused a stir because it was a tantalizing new detail in the ongoing White House effort to undermine Wilson’s report. Inside the White House it created a little nervousness, because aides had been treating Plame’s identity very gingerly. When Bob Novak’s piece was printed, wouldn’t Rove have wondered whether he’d created a bit of a problem for himself not just by talking to Novak, but by talking to Cooper as well?

Rove’s conversation with Cooper hadn’t been a negligible interaction in his own mind. It was important enough that he wrote an e-mail message about it. “Matt Cooper called to give me a heads-up that he’s got a welfare reform story coming,” Rove wrote Stephen J. Hadley, who has since risen to become Bush’s national security adviser. “When he finished his brief heads-up he immediately launched into Niger. Isn’t this damaging? Hasn’t the president been hurt? I didn’t take the bait, but I said if I were him I wouldn’t get Time far out in front on this.”

Mightn’t Rove at least have checked to see if the country’s top newsmagazine took his advice or not about treating Wilson seriously? (In fact, it didn’t. Wilson’s claims led to a cover story, but the piece did not say anything about Wilson’s wife.) In subsequent days, Joe Wilson accused Rove of being the leaker, and President Bush had been asked specifically about Rove’s role. Those, too, would have been natural occasions for Rove to recall that he had, in fact, discussed the subject with more than one reporter.

Two months later, in September 2003, Rove had even more reason to ponder whom he might have talked to about Wilson. That’s when the Justice Department started investigating the leak of Plame’s name. Rove was a key suspect in the press and in the Washington chatter. In the White House briefing room, the press pounded administration spokesman Scott McClellan about whether Rove was involved in the leak. McClellan repeatedly asserted that Rove was not involved. Wouldn’t the very act of coming up with that denial make him think yet again about all the people he might have talked to on that very important topic?

In late January 2004, Fitzgerald subpoenaed White House records. At this point, Rove and anyone else who had forgotten Cooper’s name was presented with a request for all communications with Cooper and 24 other journalists. I know that at least some White House aides were able to search these names, because mine was one of them (presumably because I co-wrote the online article in which Cooper mentioned the White House leak). White House staffers searched for e-mails containing my name, and I know of at least two who handed over what they had to Fitzgerald. 

And if seeing Cooper’s name on the subpoena didn’t jog Rove’s memory, might not his upcoming grand jury appearance? After Rove’s first testimony in February 2004, the story only grew. In May 2004, Fitzgerald subpoenaed Cooper, and he became a household name. Over the next months it became clear that Cooper was facing jail time for protecting his administration source. If nothing else, shouldn’t that have caused Rove to ask, Hey, did I talk to that guy?

But none of it did. According to Luskin, it was his own conversation with Viveca Novak over drinks at Cafe Deluxe that prompted him to scrub Rove’s e-mails really hard to look for anything that mentioned Cooper. The other possibility, of course, is that once it started to look like Matt Cooper was going to talk to Fitzgerald, as he first did in August 2004 about his conversation with Scooter Libby, Rove and Luskin needed an explanation of why they hadn’t come forward earlier.