Prosecutors say silence in CIA leak case may signal Rove indictment coming

Published: Wednesday May 24, 2006

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MSNBC's coverage of the CIA leak case continued Wednesday with new suggestions that presidential adviser Karl Rove may yet be indicted. The indictment of 'Bush's Brain' seemed imminent after reports from MSNBC and the Washington Post indicating that the Rove camp expected a decision earlier this month -- but it has now been 28 days since Rove testified for a fifth time before the grand jury investigating the outing of CIA officer Valerie Plame.

MSNBC's David Shuster says former federal prosecutors believe the silence from Special Prosecutor Patrick Fitzgerald doesn't bode well for Rove.

"Fitzgerald's office refuses to comment," Shuster said. "But former federal prosecutors describe the following procedure when considering an indictment: First, a prosecution team would review the evidence. Then, they would examine case law on the relevant criminal statutes. And finally, the prosecutors would decide whether a reasonable jury would convict at trial."

Here's the video -- the transcript follows.

The relevant transcript from Wednesday's Hardball follows.


CHRIS MATTHEWS, MSNBC ANCHOR: The grand jury investigating the CIA leak case met again today at the courthouse. But prosecutors from Patrick Fitzgerald's office were not there... and there was no sign the grand jury received evidence on presidential advisor Karl Rove. Rove's attorneys are waiting for a decision from Fitzgerald on whether Rove will be charged or cleared.

So the question now is, what's the procedure for deciding if a crime has been committed? Hardball correspondent David Shuster has been talking with former federal prosecutors who were once in a similar position and he has this report.

DAVID SHUSTER, MSNBC CORRESPONDENT. (voiceover): It was exactly four weeks ago today when Presidential advisor Karl Rove testified for the fifth time in the CIA leak investigation. 28 days later, the man known as Bush's brain still has not been cleared. Rove's lawyers say they've heard nothing from prosecutor Patrick Fitzgerald and believe Rove remains under investigation for testimony related to a conversation with Time magazine reporter Matt Cooper about CIA operative Valerie Wilson.

Fitzgerald's office refuses to comment. But former federal prosecutors describe the following procedure when considering an indictment: First, a prosecution team would review the evidence. Then, they would examine case law on the relevant criminal statutes. And finally, the prosecutors would decide whether a reasonable jury would convict at trial.

If prosecutors believe they would win a conviction, then they would prepare to seek a grand jury indictment.

One former federal prosecutor says the timing now for Rove is not in his favor.

DAVID SCHERTLER, former federal prosecutor: "If Patrick Fitzgerald had in fact reached a decision not to indict, he would have announced that and he would have told Karl Rove and his attorneys. The fact that he hasn't announced it makes you believe that he might be headed towards an indictment and might be tightening up all the loose ends at this point in anticipation of presenting the indictment."

SHUSTER: There are no justice department guidelines that say prosecutors should rely on a higher burden of proof, or re-check all of the evidence, when considering a charge against a public official. But in most cases, say former prosecutors, the scrutiny in a high profile case becomes part of the equation.

DAVID SCHERTLER, former federal prosecutor: "I think that there's probably at least some personal motivation on the part of Patrick Fitzgerald to make sure that he does a thorough job and a good job and that when he does issue an indictment, if that's what he's going to do, that he is ready to go to trial and feels very confident that he can win at trial."

SHUSTER: Sol Wisenberg, who led the grand jury investigation of President Clinton, expects that Fitzgerald is busy analyzing transcripts of Rove and other grand jury witnesses... and is mapping out the evidence and considering every potential defense argument.

SOL WISENBERG, former deputy independent counsel: "Fitzgerald has carefully gone through time sequences and obviously has chronologies he is working with in his office."

SHUSTER: Some defense attorneys argue that a prosecutor should not indict a white house official unless there is a pattern of misconduct. That raises the question, would Fitzgerald hold back an indictment if he only found one instance of lying to a grand jury? The former prosecutors point to Fitzgerald's public statements last fall.

PATRICK FITZGERALD, CIA leak investigation special counsel: "The truth is the engine of our judicial system. And if you compromise the truth, the whole process is lost."

SOL WISENBERG, former deputy independent counsel: "If he's only got one count on Karl Rove but he believes Rove is guilty and he believes he can convince a reasonable jury that Rove is guilty, I don't believe he's going to withhold indictment because he's only got one count."

SHUSTER: When it comes to the timing of Fitzgerald's decision on indicting Rove or letting Rove knew he has been cleared, attorneys say there is a very simple issue that might be affecting Fitzgerald's schedule. Compared to other special counsel investigations, Fitzgerald's staff is small. Attorneys note he only has four prosecutors working on the CIA leak case. And as Fitzgerald said last year about his team and top investigator,

PATRICK FITZGERALD, CIA leak investigation special counsel: "I've got a full-time job. Jack has a full-time job in Philadelphia. My full-time job is in Chicago. Everyone working on this case has another full-time job."

SHUSTER: According to one lawyer representing a witness in the CIA leak case, Fitzgerald didn't want to leave Chicago this winter because he was so busy with the corruption trial of former Illinois Governor George Ryan. And since then, the Fitzgerald team considering Karl Rove has been busy filing or responding to pre-trial motions in the Scooter Libby case.

SOL WISENBERG, former deputy independent counsel: "Washington is an impatient town. 28 days is nothing to a prosecutor and really I think that it's one thing to keep somebody hanging for years. But 28 days after the last grand jury appearance is no big deal from his perspective."

SHUSTER (on-camera): A spokesman who is being paid by Karl Rove says the presidential advisor did nothing wrong and is confident he will be cleared. But according to lawyers for other witnesses in the case, the only thing certain right now is that the investigation and focus on Rove continues.

I'm David Shuster, for Hardball, in Washington.