People close to Fitzgerald say the special prosecutor has long believed that Rove's story concerning his role in the Plame case, as well as what he knew and when he knew it, is filled with holes. One thing Fitzgerald has been struggling with for months now, these people say, is whether to believe Rove hid or destroyed evidence that would have incriminated him and proven that he was a source for at least two reporters who unmasked Plame Wilson's identity and covert status, lawyers close to the case said.
Fitzgerald's suspicions about the possibility of evidence destruction arose just a few weeks after he took over the probe in early 2004. By then, he had already believed Rove and Vice President Dick Cheney's then-chief of staff I. Lewis "Scooter" Libby - who was indicted on five counts of perjury and obstruction of justice as a result of his failure to disclose to the first grand jury his true role in the Plame Wilson leak - were hindering his investigation, lawyers close to the case said.
His suspicions may have been right: An email Rove sent to then-Deputy National Security Adviser Stephen Hadley in early July 2003 later proved Rove had spoken to Time magazine reporter Matthew Cooper about Plame - a fact that Rove omitted when he was first interviewed by the FBI and during his first grand jury testimony in February 2004.
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."
The same day Fitzgerald received the response letter from Comey, the White House faced a deadline of turning over administration contacts with 25 journalists to the grand jury investigating the leak. One of the journalists cited in the subpoena was Cooper, who had been called to the White House on January 22, 2004. Three months earlier, in late 2003, then-White House counsel Alberto Gonzales enjoined all White House staff to turn over any communication about Valerie Plame Wilson and her husband, former ambassador, Joseph Wilson, a vocal critic of the Iraq war who accused the Bush administration of twisting pre-war Iraq intelligence. Gonzales's directive came 12 hours after senior White House officials had been told of the pending investigation. The email Rove sent to Hadley, which specifically cited "Matt Cooper from Time," never turned up in that initial request either, people close to the investigation said.
It's unknown whether Hadley, who was also required to comply with the subpoena and the Gonzales order, turned over the email to Fitzgerald or to Justice Department and FBI investigators some three months earlier. If he did, Fitzgerald knew of its existence all along even while Rove, for nearly a year, was not being forthcoming with Fitzgerald or the grand jury. If, in addition to Rove, Hadley also failed to locate and turn over the email, it raises more questions about his own role in the matter. Hadley was interviewed by investigators to determine if he was involved in the leak, but has so far not entertained questions about his role, if any.
Besides Cooper, other journalists cited in the January 22, 2004 subpoena include: Robert Novak, who was first to publish Plame Wilson's name and undercover CIA status in his column, and who counted Rove as one of his two anonymous sources regarding Plame Wilson; Knut Royce and Timothy M. Phelps from Newsday; Walter Pincus, Richard Leiby, Mike Allen, Dana Priest and Glenn Kessler from The Washington Post; John Dickerson, Massimo Calabresi, Michael Duffy and James Carney from Time magazine; Evan Thomas from Newsweek; Andrea Mitchell from NBC's "Meet the Press;" Chris Matthews from MSNBC's "Hardball;" Tim Russert and Campbell Brown from NBC; Nicholas D. Kristof, David E. Sanger and Judith Miller from The New York Times; Greg Hitt and Paul Gigot from The Wall Street Journal; John Solomon from The Associated Press; and Jeff Gannon from Talon News.
Neither Hadley nor Rove's attorney, Robert Luskin, responded to repeated requests for comment.
The weeks leading up to Rove's February 2004 grand jury testimony - the time frame when Fitzgerald became increasingly concerned about officials possibly trying to obstruct his probe - has turned out to be crucial for Rove, and may be the deciding factor in whether or not he is indicted, lawyers close to the case said.
When Rove testified before Fitzgerald's grand jury that month he did not reveal that he had been a source for Cooper and Robert Novak, both of whom wrote stories on Plame Wilson on July 14, and July 17, 2003, respectively. Instead, Rove said he had shared information about Plame Wilson with other journalists - including Chris Matthews, the host of MSNBC's "Hardball" - but only after her name had appeared in Novak's column, people familiar with his grand jury testimony said.
In a bid to keep Rove out of Fitzgerald's crosshairs, Robert Luskin, Rove's attorney, stepped up recently and told Fitzgerald that Rove had truly forgotten about his conversation with Cooper, but Luskin jogged his memory thanks to a tip he says he received from Cooper's Time colleague, Viveca Novak (no relation to the conservative columnist Robert Novak). Hours before Libby's indictment in October, Luskin told Fitzgerald that he had gone for drinks with Novak in February 2004 - to be exact - and she had inadvertently revealed that the buzz inside Time magazine was that Rove had been a source for Matt Cooper's story on Plame Wilson.
Luskin told Fitzgerald that Novak's tip prompted him and Rove to conduct an exhaustive search for documentary evidence to determine if Rove had spoken with Cooper. That's when the Hadley email was found, which Luskin said he promptly turned over to Fitzgerald, and which led Rove to change his testimony and disclose that he did speak with Cooper. Luskin won't say exactly when he turned that email over, or why it took Rove until October 15, 2004 to testify about his conversation with Cooper.
Luskin's story forced Fitzgerald to depose him on December 2, 2004. He testified under oath that he had gone for drinks with Novak 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.
Novak, however, who testified a week later, has a different story. She testified that she met Luskin in either March or May 2004, lawyers close to the case said. This discrepancy is at the crux of what Fitzgerald is investigating.
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