The Abrams Report

Guests: Kendall Coffey, Andrew McCarthy, Frank DeSalvo, Joseph Bruno, John Barnett, Joyce Barber, Jeffrey Pocaro, Joseph D‘Onofrio, Jr., Emerson Newton-John

DAN ABRAMS, HOST:  Coming up, Karl Rove testifies for four hours before the grand jury investigating the leak of a CIA‘s officer‘s name.

ABRAMS:  Hi everyone.  First up on the docket tonight, President Bush‘s top advisor, Karl Rove, spent four and a half hours today testifying before a federal grand jury investigating the leak of a CIA officer‘s identity to the press.  The question, could he really, really get indicted?  This is Rove‘s fourth appearance and likely his last before the jury decides whether to indict him. 

They‘ve gotten until October the 28^th.  His lawyer released this statement. 

Quote—“The Special Counsel has not advised Mr. Rove that he‘s a target of the investigation and affirmed that he has made no decision concerning charges.  The Special Counsel has indicated that he does not anticipate the need for Mr. Rove‘s further cooperation.”

Rove was expected to answer questions specifically about a July 11, 2003 conversation that he had with “TIME” magazine reporter Matt Cooper.  Cooper claims it was Rove who told him during that conversation that the wife of former ambassador Joe Wilson was a CIA agent. 

UNIDENTIFIED MALE:  For the record, the first time you learned that Joe Wilson‘s wife worked for the CIA was from Karl Rove? 

UNIDENTIFIED MALE:  That‘s correct. 

ABRAMS:  Cooper acknowledges that Rove didn‘t use the woman‘s name.  But Rove‘s problem is once the leak investigation started, he didn‘t tell investigators about that conversation and he apparently didn‘t tell the grand jury during his first appearance either.  According to this week‘s “Newsweek”, Rove only acknowledged he‘d spoken to Cooper after his lawyer says they located an e-mail Rove had written just after the phone conversation confirming that he just talked to Cooper. 

So let‘s talk turkey here and figure out whether he really will be charged and if so with what.  Former U.S. Attorney Kendall Coffey joins us now, and former assistant U.S. Attorney Andrew McCarthy as well.

All right, before we get into the sort of the nitty gritty of this, let me ask each of you, bottom line, Kendall Coffey, do you think he‘s going to get indicted on something? 

KENDALL COFFEY, FORMER U.S. ATTORNEY:  I think he‘s—it‘s still probably too close to call.  If you pin me to wall, I‘d say probably indicted on something.

ABRAMS:  Andrew McCarthy.

ANDREW MCCARTHY, FORMER ASST. U.S. ATTORNEY:  I think we are missing a big aspect of this, which is that unlike a normal prosecutor, a special prosecutor really has a special obligation to figure out what happened here and a lot of what might be going on here may be just that...

(CROSSTALK)

MCCARTHY:  ... bottom of a complicated set of facts.

ABRAMS:  So you think he probably won‘t be indicted? 

MCCARTHY:  I think my good friend Pat Fitzgerald has done this about as appropriately as you can, which is to say we don‘t know because we don‘t have most of the information in this investigation. 

ABRAMS:  So you are not going to guess? 

MCCARTHY:  No. 

ABRAMS:  OK.  All right, look, I—the truth is, I think we have most of what he has in the investigation.  I‘m sure there are some elements that we don‘t have, but the bottom line...

MCCARTHY:  You think he spent four hours today talking about one conversation? 

ABRAMS:  I think—I‘m sure that conversation took a long time to discuss. 

MCCARTHY:  Four hours? 

ABRAMS:  Maybe not four hours, but...

MCCARTHY:  Three hours?

ABRAMS:  ... I‘ll bet that we could sit here and guess what the other topics were.  As you know...

MCCARTHY:  That‘s what we have been doing...

(CROSSTALK)

MCCARTHY:  We‘re guessing.

ABRAMS:  What—I mean is this some effort to like say whatever Fitzgerald does it‘s absolutely right.  I mean look, the bottom line is he‘s going to indict or he‘s not going to indict.  No one is saying that he is not doing a thorough investigation here...

MCCARTHY:  It‘s not—Dan, it‘s not an effort to say that whatever Fitzgerald...

ABRAMS:  Sure it is...

(CROSSTALK)

ABRAMS:  By you saying I‘m not going to answer...

(CROSSTALK)

ABRAMS:  ... one way or the other because Pat Fitzgerald is just doing such a great job and he‘s a great guy and he‘s a great prosecutor...

MCCARTHY:  That‘s not what I‘m saying at all...

ABRAMS:  You are...

MCCARTHY:  What I‘m saying is that what you guys are doing is taking this much information in a news cycle where you have to fill 24 hours and churning it around and around...

ABRAMS:  Right...

MCCARTHY:  ... like you know what‘s going on...

ABRAMS:  ... and so we are...

MCCARTHY:  ... you don‘t.

ABRAMS:  So right—so    we are going to be stunned—when this comes to an end we‘re going to be stunned at what Pat Fitzgerald uncovered, right? 

MCCARTHY:  You may be stunned because you‘ll have to either backtrack or...

ABRAMS:  All right, I‘m going to make...

MCCARTHY:  ... a lot of speculation you‘ve done...

ABRAMS:  Right.  I‘m going to make...

(CROSSTALK)

ABRAMS:  Let me make some more speculation.  I‘m going to make a prediction.  I‘m going to predict whether he indicts or not, and I think that‘s a fair debate as to whether he‘s going to, whether he should, and there is going to be some information that we didn‘t know about.  I think that‘s fair to say.

I think it‘s also fair to say that we will have known the majority of the information that Fitzgerald knew about and was investigating in the grand jury.  So, we will see. 

(CROSSTALK)

ABRAMS:  Look I‘ll play it again when I‘m wrong.  I‘m wrong—I mean look, I‘d say more times than not when I make these predictions I‘m wrong.

All right, let‘s talk about the actual charges that he could face here.  Let‘s start with—at the beginning of this, we were always talking about the actual charge here of releasing the name and this crime that may have been committed.  And now it seems that other possible charges could be the issue, perjury, obstruction of justice, false statements, conspiracy. 

Let‘s start with the issue of perjury.  Kendall Coffey, to be convicted of perjury, someone has to have been under oath before a grand jury—we‘re talking about grand jury perjury here—and knowingly make a false declaration and the knowingly is what gets tricky. 

COFFEY:  Sure, it‘s always a tough part and Karl Rove‘s position would be look, I‘m Karl Rove.  I‘m not going to remember every conversation I had with a reporter even if reporters tend to remember in great detail the conversations they had with me.  What‘s the problem?  This was such a sensitive, high profile, hot button matter. 

He goes before FBI investigators, doesn‘t recall this critical discussion.  Then he gets in front of the grand jury, you‘ve got to figure he very well prepared by a lawyer, has certainly searched his memory exhaustibly, still doesn‘t seem to, by the way, remember this critical discussion with Matt Cooper.  It‘s only after, bam, there is a document that‘s going to confirm that he spoke to Matt Cooper on that date that all of a sudden his memory gets a whole lot better and he goes back before the grand jury...

(CROSSTALK)

COFFEY:  So I think there is a lot there that a grand jury and a prosecutor could get mighty, mighty skeptical about. 

ABRAMS:  Kendall, before I go back to Andrew on the issue of obstruction of justice.  Do you disagree with me that we probably know the majority of the issues, the vast majority of the issues that Fitzgerald is evaluating? 

COFFEY:  Well I disagree with you somewhat in the sense that we are just looking at leaks to try to figure out what‘s going on in the leak investigation, but I agree with you in terms of the core of this thing.  I think we‘ve got a very good idea as to what the single biggest discrepancies are.  I think...

ABRAMS:  But it‘s leaks from reporters.  I mean it‘s not—it‘s leaks from reporters.  It‘s not like we‘re talking about you know issues here where we are getting leaks of exactly what happened at the highest level of conversations in government.  We are talking about what did people say to reporters. 

COFFEY:  What we don‘t know is what Karl Rove really said in his...

ABRAMS:  Right.

COFFEY:  ... earlier grand jury testimony and that‘s critical. 

(CROSSTALK)

COFFEY:  He said no how, no way I didn‘t speak to anybody, didn‘t say anything about Wilson‘s wife.  He is going to get indicted.  If it was much more couched and careful than that, he may just dodge the bullet. 

ABRAMS:  All right...

(CROSSTALK)

ABRAMS:  Yes, go ahead. 

(CROSSTALK)

MCCARTHY:  I think you‘re right in terms of when you say that we know the core of what the case is about in the sense of what they are curious about.  But all these concepts that you started to talk about and I think you‘re going to continue to talk about like knowing and willfulness all go to things that may have happened outside the presence of the reporters, namely who talked to whom, was there a scheme, wasn‘t there a scheme. 

ABRAMS:  Right.  But...

MCCARTHY:  And I think that‘s—when I say that there‘s a lot here that we don‘t know, that‘s really what I‘m talking about. 

ABRAMS:  Well let‘s talk about one of those issues, obstruction of justice.  A witness must—quote—“obstruct, delay or prevent communication of information to a criminal investigator.”

Theoretically, Andrew, how could that apply here? 

MCCARTHY:  Well you know it can apply like it applies in any investigation.  If anybody did something in a way corruptly to try to influence the testimony of someone who is a relevant witness that‘s obstruction.  I would be surprised if that...

ABRAMS:  I would too.

MCCARTHY:  ... was the focus. 

ABRAMS:  I would too.

MCCARTHY:  I think that we‘re really—what we‘re really focusing in on here is the crime, if there was one, not the cover-up. 

ABRAMS:  What about false statement?  Witness must knowingly and willfully falsify, conceal or cover up a material fact or make a materially false, fictitious, or fraudulent statement in any manner within the jurisdiction of the executive, legislative or judicial branch.  That‘s one that could come up, right, Andrew? 

MCCARTHY:  Yes, that—I‘m sorry.

ABRAMS:  Yes, go ahead. 

MCCARTHY:  That‘s—I think Kendall will agree with me on this.  That‘s a somewhat easier proof for the government than perjury.  Perjury tends to be something that the courts look at very literally, whereas false statements to an investigator or the government generally has a little bit more leeway if people give misleading testimony...

(CROSSTALK)

MCCARTHY:  ... that‘s not necessarily literally false. 

ABRAMS:  That‘s what they got Martha on, right? 

MCCARTHY:  I believe that...

(CROSSTALK)

COFFEY:  ... Martha.  I agree, Dan, with Andy saying that‘s the biggest single exposure here...

ABRAMS:  Yes.

COFFEY:  ... and that‘s why Karl Rove went back.  He didn‘t have to go back.  He went back because he and his attorney thought things are serious and scary enough around here that we better take our shot.  It‘s mighty risky walking into a grand jury for a fourth time, but we‘ve got to take our shot at trying to come up with the explanations, come up with explaining the discrepancies, because if not, some mighty serious things could happen here in a hurry. 

ABRAMS:  The last one, conspiracy—we‘re out of time.  I‘ll just read it.

Witness must conspire either to commit an offense against the U.S., defraud.  One member of the conspiracy has to perform an act to further the conspiracy. 

You know look, that would just be a sort of a back doorway to get him on the underlying charge.  All right, you know Andrew McCarthy I wish that I had heard so many bad things about Fitzgerald where I could go after him.  The problem is I just keep hearing good things.  It‘s driving me crazy—he‘s such a good guy...

(CROSSTALK)

ABRAMS:  Such an honest prosecutor, all I hear about him is good stuff.  All right...

MCCARTHY:  How would you like to have sat next to him...

(LAUGHTER)

ABRAMS:  Kendall Coffey and Andrew McCarthy, thanks a lot.