Man Without Qualities

Thursday, October 06, 2005

Rove Apparently Clear

Federal prosecutors have accepted an offer from presidential adviser Karl Rove to give 11th hour testimony .... The U.S. attorney's manual requires prosecutors not to bring witnesses before a grand jury if there is a possibility of future criminal charges unless they are notified in advance that their grand jury testimony can be used against them in a later indictment. .... "I can say categorically that Karl has not received a target letter from the special counsel. The special counsel has confirmed that he has not made any charging decisions in respect to Karl," [Karl Rove's attorney,] Luskin said.

The business in the linked article about the prosecutor not having made decisions to prosecute or giving any "guaranties" of no future indictments is just nonsense. Prosecutors are not in the guaranty business. But they are subject to Justice Department rules.

Link from DRUDGE.

UPDATE (via Kausfiles): Lawrence O'Donnell says: [B]ecause Fitzgerald is not subpoening Rove to testify, he has no obligation to send him a target letter.

Really? Here is what the Department of Justice grand jury guidelines say:

9-11.151 Advice of "Rights" of Grand Jury Witnesses

It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter.
A "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. ... Although the Court in Washington, supra, held that "targets" of the grand jury's investigation are entitled to no special warnings relative to their status as "potential defendant(s)," the Department of Justice continues its longstanding policy to advise witnesses who are known "targets" of the investigation that their conduct is being investigated for possible violation of Federal criminal law. ...

9-11.152 Requests by Subjects and Targets to Testify Before the Grand Jury

It is not altogether uncommon for subjects or targets of the grand jury's investigation, particularly in white-collar cases, to request or demand the opportunity to tell the grand jury their side of the story. ...[U]nder normal circumstances, where no burden upon the grand jury or delay of its proceedings is involved, reasonable requests by a "subject" or "target" of an investigation, as defined above, to testify personally before the grand jury ordinarily should be given favorable consideration, provided that such witness explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath. ...

9-11.153 Notification of Targets

When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.

If Karl Rove is testifying before that grand jury, is a "target," has not received a "target letter" and has not waived his unenforceable "right" to receive such a letter, the special prosecutor is almost certainly acting against many "encouragements" included in these guidelines.

FURTHER UPDATE: The New York Times says that it was the special prosecutor, not Karl Rove, who wanted Mr. Rove to testify again:
The special prosecutor in the C.I.A. leak case has summoned Karl Rove, the senior White House adviser, to return next week to testify to a federal grand jury in a step that could mean charges will be filed in the case, lawyers in the case said Thursday.
(emphasis added)

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