Prior to being "charged" -- and without a "deal" -- it appears Karl Rove plead guilty to making a "false statement".
[UPDATED 6.24.06 5:45AM PST Updates appear in red. Please note that citizenspook will be leaving this post to linger until their is an official response from the Rove defense team as to whether Rove plead guilty.]
The public record and other statements of parties with special knowledge of Patrick Fitzgerald’s Special Counsel investigation support this report.
It appears Luskin's consistent insistence that Rove has never been "charged" or "indicted" is true. Luskin has surgically parsed his words to create a false impression that Rove was not guilty of any legal infractions.
It appears Rove plead guilty to making at least one false statement before “charges” were ever filed and without a “5K deal" or any other deal that I have been made aware of.
However, no "deal" was required for Rove to receive a statutory reduction of the “pending” sentence according to 3E1.1(a) of the Federal sentencing guidelines which provide for a "two level" reduction of sentence where a person has plead guilty and “accepted responsibility” for his actions
The 3E1.1(a) sentence level reduction is triggered by statute -- not the prosecutor – when a guilty party pleads guilty thereby “accepting responsibility” for his actions. The earlier the plea is entered, the more likely 3E1.1(a) will be triggered. There is no requirement that the person pleading guilty assist the prosecution as against any other defendant.
ANALYSIS OF LAWS, FACTS AND STATEMENTS
Chapter 3 Part E - ACCEPTANCE OF RESPONSIBILITY
§3E1.1. Acceptance of Responsibility
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a) , the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
[Making false statements carries a base offense level of 6, so only 3e1.1(a) would apply to a plea of guilty for that offense. This would bring the base offense level down from 6 to 4 and I don't see how Rove would get more than probation at that level.]
Please take note that the two level sentence reduction does not require the guilty party to provide the prosecution with any information as to other possible defendants. The sentence is statutorily reduced by two levels simply for "accepting responsibility" in a timely manner so as to save the prosecution the trouble of preparing for a trial. Unlike a "5K" plea agreement which requires cooperation with -- and a motion from -- the prosecutor, the 3E1.1(a) two level sentence reduction only requires the guilty party to "accept responsibility" for his own actions by pleading guilty.
If the Prosecution agrees that the guilty party has properly "accepted responsibility", he may make a 3E1.1(b) motion for a third level of sentence reduction. Statutory and case law do not require that the guilty party cooperate with the prosecutor in the prosecution and conviction of any other defendant(s). But this only applies to offense with a base level of 16 or higher.
A 3E1.1(b) reduction, like the 3E1.1(a) statutory sentence reduction only requires the prosecutor to agree that the guilty party has accepted responsibility.
For a detailed analysis of the application of these statutes please see UNITED STATES OF AMERICA v. MIGUEL MORENO-TREVINO, United States District Court for the District of Utah (D.C. No. 2:04-CR-00051-DKW).
Jeralyn Merrit of talkleft.com almost nailed this down back on October 26, 2005, when she reported that Federal law allowed Rove to correct any perjury he might have committed before the grand jury and that Rove had probably done just that by willingly appearing before the grand jury for a fourth time:
Rove may have successfully cleared himself of a perjury charge regarding his conversation with Matt Cooper during his fourth grand jury appearance. The applicable perjury statute allows him to do this:
(d) Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration
to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.
Merrit followed up on October 28, 2006 with a report titled, ">Does Rove Have a Secret Plea Deal? where she just barely missed being accurate as she postulated that Rove might have avoided “indictment” by pleading guilty to an “Information” – a charge brought by the prosecution by drafting a pleading of probable cause which is only done when the target waves indictment by a grand jury:
If they reached a deal, an Indictment is not necessary. A defendant can waive the right to be charged by Indictment and plead to an Information, which is filed by the prosecutor. It's an ordinary occurrence in my district.
The problem with the “Information” theory became evident last week when Luskin informed Merritt that there were never any “charges” against Rove. Since an http://www.co.rock-island.il.us/SAO.asp?id=376">“Information” is a “charge”, and Merritt was convinced that Luskin was speaking accurately, this theory was shot down.
Luskin also strongly insisted that there never was any “deal” at any time and that Rove cooperated from the very start with Fitzgerald.
On June 13, 2006 Merrit published a retraction of her prior theories featuring the following headline, EXCLUSIVE: No Deal for Karl Rove, wherein she reported:
Sometimes people just don't know when to cry "uncle." I do. I asked Robert Luskin this morning if Karl Rove has made a deal with Fitzgerald. His response:
There has never, ever been any discussion of a deal in any way, shape or
Which is exactly what Luskin told me weeks ago. It's over, folks. Karl Rove will not be charged with a crime. He's cooperated with Fitzgerald by testifying to the grand jury five times and providing whatever information he had without a safety net. Without a 5k. Without assurances he would not be indicted. That's a hell of a risk, but Luskin pulled it off. My hat's off to Luskin.
I opined repeatedly on TalkLeft and HuffPo that Karl Rove would be charged at least with making a false statement to investigators in the fall of 2003 before a grand jury was convened -- the Martha Stewart crime. That was wrong.
I'm ready to put this to bed. Karl Rove walked. He's one of the rare subjects of an investigation who was able to talk his way out of an Indictment.
The problem with Merrit’s current analysis – as well as the similar analysis of the entire main stream media and major blogs – is that they failed to consider Rove might have “plead guilty” prior to any “charges” having been filed and without the safety net of a 5K deal, or any other plea bargain arrangement.
Merrit is an experienced attorney who is all too familiar with the fact that a person can plead guilty to breaking the law before any charges are ever filed.
She has previously discussed this issue – regarding a different criminal matter – at her blog:
One more thing: These Arizona cops and agents pleaded guilty before charges were filed. That means they didn't wait for the benefit of court-ordered discovery -and any exculpatory evidence the Government would have been required to disclose. In other words, they knew, after seeing whatever limited information the Government felt like showing them, that their goose was cooked.
And here’s a link to another case where people plead guilty “before being charged”:
Eight other people were arrested last year and two others agreed to plead guilty before charges were filed against them…
Back in her report of October 26, 2005, she discussed the possibility that Rove plead to making false statements:
On to Plan B. If Rove is charged, it might be only for making a false statement to investigators in the earliest days of the investigation when he said he didn't speak to reporters about Joseph Wilson's wife until after Novak's article was published…
If this is all the grand jury charges him with, and if, as I have speculated frequently in the past few weeks, he has cooperated against others, he could plead guilty under a plea agreement in which Fitzgerald moves for a sentence reduction under 5K1.1 of the Sentencing Guidelines, possibly down to probation.
Rove would need that motion…
Patrick Fitzgerald, and only Patrick Fitzgerald, not the grand jury or the Court on its own motion, has the power to make that 5K1.1 motion, and ask that Rove not receive a jail sentence.
And that's how Karl Rove could walk.
Will it happen? Right now, only Fitzgerald knows for sure. As a devout critic of the Bush Administration, I bring it up because I don't like rats. If Karl Rove isn't indicted, or gets a sweetheart deal, I can't conceive of any reason why other than he sang his heart out.
So close, but yet so far. Unfortunately, she never mentioned http://www.ussc.gov/2003guid/3e1_1.htm>Rule 3E1.1> which – as explained above – requires no motion by the prosecutor or cooperation by the person pleading guilty to assist in the prosecution of others for the two level reduction to kick in.
When you study those Federal guidelines, it’s important to play close attention to Note 1(a):
Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a) . A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility;
So, no “deal” is necessary for the 3E1.1(a) two level reduction, nor is a “deal” necessary for the extra single reduction listed in 3E1.1(b) if the base offense level were greater than 16. Once again, making false statements is a level 6 offense so 3e1.1(b) would not apply.
RANDAL SAMBORN’S COMMENT TO RYAN LIZZA
Contrary to misleading reports by various blogs, Fitzgerald’s tight lipped spokesperson, Randall Samborn, has not always answered “no comment” to substantive questions pertaining to this investigation.
Back in October, at the time of the Libby indictment press conference, Samborn – in response to ">a question by Ryan Lizza of The New Republic as to whether there were any guilty pleas in the case – said there was no “public record” of such pleas:
Yesterday, I asked Fitzgerald spokesman Randall Samborn if there were any guilty pleas in the case. He told me there was no "public record" of such pleas. That sounded less than fully responsive, so I asked Preston Burton, a white collar criminal defense attorney, if there could be guilty pleas outside of the public record. Here's what he said:
Guilty pleas can be taken under seal--and often are--when the person entering
the plea is cooperating with the government and they do not want to tip off the
other targets or there is a safety concern. Also, plea agreements could have
already been reached but not formally entered in court.
Considering Samborn's cagey answer and the fact that we know Fitzgerald received high-level cooperation from several current and former administration officials, it is entirely possible that Libby is not the only Bushie who's been busted.
Another substantive answer given by Samborn back on October 28, 2006 was directed to the question of whether the investigation was ongoing to which ">Samborn responded, “the investigation will continue with a new grand jury.”
On June 13, 2006 Samborn changed his answer to this question by stating that he would not comment on the issue at this time.
The following District Court local ">rule states:
"With respect to a grand jury or other pending investigation of anycriminal matter, a lawyer participating in or associated with theinvestigation shall refrain from making any extrajudicial statementwhich a reasonable person would expect to be disseminated by meansof public communication, that goes beyond the public record or that isnot necessary to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, orotherwise to aid in the investigation."
This allows the prosecution to inform the public that an investigation is under way. It also allows the prosecution to inform the public about the general scope of the investigation. Everything that takes place before the grand jury, is, of course, secret, but the “existence” of a grand jury investigation is certainly a matter of public interest. Indeed, Fitzgerald’s office has kept the public informed of the status of the investigation up until June 13, 2006 when he, via Samborn, refused to comment on the status of the investigation.
The same Federal rule would apply to the statements in Luskin’s fax. If Fitzgerald informed Luskin he does not anticipate seeking charges then Rove would be out of the general scope of the investigation and both Fitzgerald and Luskin may freely publicize that statement to clear Rove’s name. Whether it be a phone call, letter or fax, the medium does not matter, it’s all about the communication. Since Luskin made the communication public, the medium – a fax – can also be made public.
If there’s things in the fax which are to be kept secret pursuant to various Federal secrecy laws – for example: statements in the fax which discuss a sealed plea agreement – then Luskin can redact them and show what’s left.
On June 13, 2006, Fitzgerald, via Samborn, refused to confirm Luskin’s comments.
I believe that when one carefully examines Luskin’s razor sharp parsing, the truth emerges. Luskin has consistently stated:
1. Rove was never “indicted” or “charged” with any crime.
2. Rove never took a deal.
3. Rove has cooperated from the start with Fitzgerald.
I am not aware of any public statements by Luskin denying that Rove plead guilty to a legal infraction pertaining to Fitzgerald’s Special Counsel investigation.
If Karl Rove has not plead guilty to making at least one false statement, then let's have an official denial from Luskin.
I have contacted Randall Samborn and asked him about the subject matter of this report. He hasn't responded to my questions at this time.
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