Fitzgerald Cited Missing Emails During Plame Probe
    By Jason Leopold

      Friday 13 April 2007

    In late January 2004, Patrick Fitzgerald, the US attorney appointed as special prosecutor to investigate whether White House officials knowingly leaked the identity of covert CIA operative Valerie Plame Wilson, sent a letter to then-acting Attorney General James Comey. Fitzgerald was seeking confirmation that he had the authority to investigate and prosecute suspects in the leak case for additional crimes, including evidence destruction.

The leak investigation had primarily been centered on an obscure law that made it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.

    Comey responded to Fitzgerald in writing on February 6, 2004, confirming that Fitzgerald had the authority to prosecute those crimes, including "perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."

    Fitzgerald wrote Comey in part because he had become suspicious that White House political adviser Karl Rove had either hidden or destroyed an important document tying him to the leak and the effort to discredit Plame's husband, Ambassador Joseph Wilson. The document Fitzgerald believed Rove had destroyed or withheld was an email Rove sent to Stephen Hadley, then deputy national security adviser, in early July 2003. That email proved Rove had a conversation with Time magazine reporter Matthew Cooper about issues related to the CIA leak. Rove did not disclose that conversation when he was first interviewed by the FBI three months after he had emailed Hadley.

    The same day that Fitzgerald received the written reply from Comey, the White House faced a deadline to turn over administration contacts with 25 journalists to the grand jury investigating the Plame Wilson leak. Cooper was one journalist cited in the subpoena sent to the White House on January 22, 2004. Curiously, the email Rove sent to Hadley did not show up during a search ordered by then-White House Counsel Alberto Gonzales in September 2003. Gonzales enjoined all White House staff members to turn over any communication pertaining to Plame Wilson and her husband, former Ambassador Joseph Wilson. Wilson, a vocal critic of the Iraq war, had accused the Bush administration of twisting prewar Iraq intelligence.

    The directive came 12 hours after senior White House officials had been told of the pending investigation.

    In light of the revelations Thursday that thousands of emails Rove sent over a four year period via an email account maintained by the Republican National Committee may have been destroyed, questions as to why an email Rove sent to Hadley was not initially found in the 10,000 pages of documents and emails turned over to the special counsel has resurfaced. Additionally, there are also questions about the veracity of statements Rove and his attorney, Robert Luskin, made to Fitzgerald more than two years ago regarding why that email to Hadley wasn't found.

    On Friday, Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, wrote a letter to Fitzgerald asking him to reopen his investigation.

    "It looks like Karl Rove may well have destroyed evidence that implicated him in the White House's orchestrated efforts to leak Valerie Plame Wilson's covert identity to the press in retaliation against her husband, former Ambassador Joseph Wilson," Sloan said. "Special Counsel Fitzgerald should immediately reopen his investigation into whether Rove took part in the leak, as well as whether he obstructed justice in the ensuing leak investigation."

    CREW, the nonprofit legal watchdog organization, serves as legal counsel to Joseph and Valerie Wilson in their civil suit against Rove, Vice President Dick Cheney, I. Lewis "Scooter" Libby and Richard Armitage. Libby was convicted of perjury and obstruction of justice earlier this year for his role in the leak of Plame's identity.

    Henry Waxman, chairman of the House Oversight and Governmental Reform Committee, has been investigating the use of unofficial email accounts by Bush administration officials. On Thursday, Waxman's staff met behind closed doors with RNC counsel Rob Kelner to discuss the issue. In a letter to Gonzales on Thursday, Waxman said that the RNC has email archives dating back to 2004 and "has apparently destroyed all email records from White House officials from 2001, 2002, and 2003."

    According to Waxman's letter, the RNC had special email procedures for Rove. According to Kelner, the RNC does not have any archived emails prior to 2005 for Rove. This, despite the reports that Rove uses his RNC account for the majority of his correspondence. Waxman said that Kelner "did not give any explanation for the emails missing from Mr. Rove's account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his emails from the RNC server." According to the letter, the RNC instituted a special policy for Rove's emails some time in 2005 that prevented him from being able to delete his emails from the RNC server.

    In a story first reported by Truthout last year, in a federal court document filed in January 2006 in US District Court in Washington, DC, Fitzgerald revealed that his investigative team "learned that not all email of the Office of the Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system." That document was filed during the discovery phase of the perjury and obstruction-of-justice trial against former vice presidential staffer I. Lewis "Scooter" Libby.

    Less than two weeks after Fitzgerald revealed that emails from the White House were missing, 250 pages of emails from President Bush and Vice President Dick Cheney's office were turned over to investigators working for the special prosecutor - more than two years after the investigation began.

    The White House offered no official explanation concerning the circumstances regarding the sudden reappearance of the emails it turned over to Fitzgerald on February 6, 2006 or if there was any truth to Fitzgerald's allegations that the emails were not automatically archived. At the time, a White House spokeswoman would only say that staffers "discovered" the batch of documents during a search.

    A number of theories emerged at the time in an attempt to explain why the emails had not been preserved. Media reports settled on the idea that White House computers simply broke down and failed to archive the emails.

    According to a report in Newsweek, FBI investigators did not initially find the email Rove sent to Hadley because "the right search words weren't used" three years ago.

    The Washington Post, citing an unnamed source, reported that Rove had sent the email to Hadley from his government account and it was "unclear" why the email did not turn up during a search in 2003.

    Whether Fitzgerald knew in late January or early February 2004 about the existence of Rove's email to Hadley is unknown. Neither Fitzgerald nor his spokesman would respond to questions about the leak investigation.

    During two of his five appearances before the grand jury investigating the Plame Wilson leak, Rove testified that the first time he discussed Valerie Plame with other journalists was after syndicated columnist Robert Novak revealed her identity and CIA status in July 2003. Rove did not disclose that he had actually been a source for Cooper, whose story about Plame's work for the CIA was published less than a week after Novak's column was published.

    When Fitzgerald applied pressure to Cooper to testify about the identity of the source who told him that Plame worked for the CIA, Rove's attorney Robert Luskin made a startling discovery: he had found the email Rove sent Hadley.

    Luskin told Fitzgerald that he had a conversation with Time Magazine reporter Viveca Novak in February 2004 and she inadvertently revealed that Rove had been a source for her colleague Matt Cooper.

    Following his meeting with Viveca Novak, Luskin met with Rove and told him that Novak said he was Cooper's source. Luskin and Rove then did an exhaustive search through White House phone logs and emails to find any evidence that Rove spoke with Cooper. That's when the email Rove sent to Hadley was discovered, Luskin said, which he promptly turned over to Fitzgerald and which led Rove to change his testimony.

    However, Luskin would not say when he turned it over, or why the email wasn't found when the White House was subpoenaed on January 22, 2004 or when White House counsel Alberto Gonzales ordered all White House staff in October 2003 to turn over emails and other documentary evidence that showed officials had spoken with journalists.

    Luskin testified on December 2, 2005 regarding his meeting with Viveca Novak. He said that he met with her in late January or early February 2004, the very month in which Fitzgerald had sought the authority to prosecute officials if they were found to have hindered his investigation into the leak.

    Viveca Novak (who bears no relation to the columnist Robert Novak), however, testified that she met Luskin in either March or May 2004. Still, Rove didn't reveal to the grand jury until October 15, 2004 that he had spoken with Cooper.

    Luskin has said that Rove did not intentionally withhold information from Fitzgerald or the grand jury about his conversation with Cooper. Rather, he said, Rove had simply forgotten about it, and Luskin's meeting with Novak had jogged his memory.