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.
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.
So, in late January 2004, Fitzgerald sent a letter to his boss, then-acting-Attorney General James Comey, seeking confirmation that he had the authority to investigate and prosecute individuals for additional crimes, including obstruction of justice, perjury and destroying evidence. The leak investigation had been centered up to that point on an obscure law making it a felony for any government official to knowingly disclose the identity of an undercover CIA officer.
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."
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'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.