No, really, it isn’t over

Rove’s lawyer, who should know, says Rove is still under the gun.

If the Libby indictment is the only indictment to come out of the Plame affair, I’d rate it something of a disappointment. Not enough to justify the triumphal tone of the reaction from the right wing — is it, after all, a small thing if a man with the title Counselor to the President revealed classified information revealing the identity of CIA officer, an then systematically lied about it under oath? — but still well short of the hopes some of us had entertained.

But I don’t think there’s any reason to believe that the case ends with Libby, or that the case against Libby ends with today’s charges. And there’s one strong reason to believe the opposite: Robert Luskin, Rove’s lawyer, is apparently telling reporters that Fitzgerald has told Luskin that the case isn’t over and Rove isn’t out of the woods.

The closest to bright news Friday for the White House was the word from Rove’s attorney that the presidential confidant was not being indicted along with Libby.

Fitzgerald has been looking for weeks at whether Rove gave false testimony during his four grand jury appearances. Rove’s lawyer waged a furious effort in recent weeks to convince the prosecutor that any misstatements were unintentional or were corrected.

The special counsel has advised Mr. Rove that he has made no decision about whether or not to bring charges,” attorney Robert Luskin said. “We are confident that when the special counsel finishes his work, he will conclude that Mr. Rove has done nothing wrong.”

Kevin Drum notes that Fitzgerald was at pains to downplay speculation about further indictments, and concludes (a) that this is it and therefore (b) Fitzgerald has concluded that giving reporters the information that Valerie Plame Wilson worked for the CIA wasn’t a crime. I disagree.

I read Fitzgerald’s caution about predicting future indictments as simply an extension of his general refusal to comment on anything outside the four corners of the indictment.

There was nothing to keep Fitzgerald from saying, had it been true, something like: “The investigative phase of this case is now over. The grand jury has indicted the only person we thought, on the evidence we now have, had provably committed a crime worthy of prosecution. Of course it’s possible that, in the course of the trial, new information might emerge that would implicate other people, and if that happened those people might be indicted. But as of now, we’re not investigating anything or anyone else, and my previous request that witnesses and lawyers not discuss the case with one another or with the press is therefore no longer in effect.”

And of course he might say that tomorrow or next week, in which case I will have to pay off on three bets: two that Rove would be indicted, and one that someone would be indicted on EA or IIPA charges.

But Fitzgerald didn’t say that today. He said he and his colleagues were eager to get back to doing their full-time jobs. He refused to say whether anyone was still a target.

So we know a lot more now than we did this morning about just how strong the evidence is against Libby, and (some of) how much Fitzgerald managed to learn about who told what to whom. But I don’t see any reason to think that the probability that Rove will eventually be indicted is any lower now than it was six hours ago.

Update John Dickerson of Slate reads the situation as I do. Of course, we could both be wrong.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com