It's unclear when Fitzgerald sent the target letter to Rove's attorney, Robert Luskin. Sources close to the two-year-old leak investigation said when Rove's attorney received the letter Rove volunteered to appear before the grand jury for an unprecedented fifth time to explain why he did not previously disclose conversations he had with the media about covert CIA operative Valerie Plame and her husband, former Ambassador Joseph Wilson, who criticized the Bush administration's use of pre-war Iraq intelligence.
A federal grand jury target letter is sent to a person in a criminal investigation who is likely to be indicted. In a prepared statement Wednesday, Luskin said Fitzgerald indicated that Rove is not a "target" of the investigation. A "target" of a grand jury investigation is a person who a prosecutor has substantial evidence to link to a crime.
Last week, Rove was stripped of some of his policy duties in a White House shakeup orchestrated by incoming Chief of Staff Joshua Bolten. The White House insisted that Rove was not demoted, but insiders said the executive branch is bracing for a possible indictment against Rove.
In an interview last week, Luskin confirmed that Rove was a "subject" of Fitzgerald's probe. In a previous interview, Luskin asserted that Rove would not be indicted by Fitzgerald, but he was unwilling to make that same prediction again during an interview last week.
"Mr. Fitzgerald hasn't made any decision on the charges and I can't speculate what the outcome will be," Luskin said in an interview last week. "Mr. Rove has cooperated completely with the investigation."
People close to the case said that Fitzgerald has presented additional evidence to the grand jury in the past week that shows Rove lied to federal investigators and a grand jury eight out of the nine times he was asked about his knowledge of the leak since October 2003.
Should Wednesday's court appearance by Rove provide the grand jury with answers to lingering questions, Rove may not be charged with obstruction of justice, but will likely be indicted for perjury and lying to investigators, sources close to the case said.
For one, according to the sources close to the investigation, the likelihood that Rove will be charged with perjury centers on the fact that Rove has testified at least three times that he first discovered that Plame worked for the CIA after her name was printed in a July 2003 newspaper report by conservative columnist Robert Novak. Evidence has since surfaced that shows Rove spoke to Novak about Plame prior to Novak's published report in which Novak outed the undercover CIA officer.
Moreover, Rove did not disclose that he had also been a source for a story about Plame written by Time magazine reporter Matthew Cooper, and Rove testified that he was not involved in a campaign to discredit or attack the credibility of Plame's husband, Ambassador Wilson, when at least two dozen witnesses have testified before the grand jury that Rove was in fact instrumental in the smear campaign on Wilson.
Rove's grand jury appearance Wednesday is crucial in determining whether he will face a charge of obstruction of justice for not turning over an explosive email that was written moments after his July 2003 conversation with Time's Cooper. Rove volunteered to testify before the grand jury Wednesday to explain why he did not disclose and locate the email for more than a year, sources close to the case said.
Rove's story began to unravel when Fitzgerald discovered the existence of an email Rove sent to then-Deputy National Security Adviser Stephen Hadley after he spoke with Cooper on July 11, 2003, which Hadley and Rove did not disclose to the special prosecutor or hand over to his probe, sources close to the case said.
"I didn't take the bait," Rove wrote in the email to Hadley immediately following his conversation with Cooper. "Matt Cooper called to give me a heads-up that he's got a welfare reform story coming. When he finished his brief heads-up he immediately launched into Niger. Isn't this damaging? Hasn't the president been hurt? I didn't take the bait, but I said if I were him I wouldn't get Time far out in front on this."