The smoking gun

Why wasn’t Cooper’s call to Rove logged in? Looks like evidence of consciousness of guilt to me.

Talk about burying the lead!

Buried in the fifth paragraph of a story buried below the fold on page eighteen of the New York Times is this little land mine:

At one point, the aides were asked why Mr. Cooper’s call to Mr. Rove was not entered in Mr. Rove’s office telephone logs. There was no record of the call, the person who has been briefed said, because Mr. Cooper did not call Mr. Rove directly, but was transferred to his office from a White House switchboard.

If you believe that explanation, I’ll tell you another. Obviously, call logs aren’t of any value unless all calls are logged: the whole point is to allow someone to say, months later, “No, I know I didn’t talk to X on that date; I’ve checked my call logs.” This reads to me like strong evidence that Rove and his crew knew at the time they were doing something they didn’t want to get caught doing.

In prosecutorese, that’s called “evidence of consciousness of guilt,” and it’s extremely helpful in proving intent. We already know that Rove disclosed classified information to Cooper. The only remaining legally relevant question is whether he did so with the requisite criminal intent. The omission of the call from the log — if the “transferred call” explanation can be shown to be false — would be a powerful help to a prosecutor.

Update The Baseball Crank points out that Rove presumably doesn’t log his own calls. Duhhhh….of course not. That’s presumably why Fitzgerald subpoenaed Rove’s two assistants.

Tom Maguire says that since Rove sent Hadley an email about the call, he must not have wanted to keep it from the record. That’s a point. But Rove would have expected even a routine inquiry to look at the call logs, but not to search all his emails. Anyway, the fact that everyone ought to know that an email is forever doesn’t keep lots of people from being indiscreet.

I’m still looking for a non-silly explanation of why the call wasn’t logged. “It was transferred from the switchboard” makes no sense whatever.

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: