Nolle prosequi

The headline today is, “Rove Won't Be Charged in CIA Leak Case.” As reported by Toni Locy, for AP,

“Presidential adviser Karl Rove won't be a criminal defendant in the CIA leak case, but he could still end up being grilled in court as a witness.”

This story appears to be based on a single source, to wit., Robert Luskin, attorney for Turd Blossom. Fitz is not talking.

There is only one way to put these facts together so that they make sense. Karl Rove has been given a grant of immunity.

Here’s the way it works. There are two kinds of immunity. One is “use immunity,” and people who receive it are forced to testify, but the prosecution is prevented from using their testimony against them.

The other kind of immunity is called “transactional immunity.” It means that the subject testifies, but having received immunity for the entire transaction, he or she is at no risk of prosecution, and therefore, has no Fifth Amendment privilege against self-incrimination.

In the Federal system, the rule is that to force testimony, the prosecutor must grant use immunity. I’m guessing that this is what happened yesterday.

As always, there is a catch. First, obviously, a grant of immunity is not a license to commit perjury. Karl Rove may have breathed a sigh of relief today because he is not going to be indicted, but he also must have soiled his skivvies, because he is going to testify. If he lies, there is going to be heavy pressure to indict him. He has testified five times, and it is hard to feature that he will testify without contradicting something that he has already said.

The other reason that there is not unmitigated joy in Karl Rove’s black and malignant heart* is that the letter that grants immunity usually includes some language to the effect that this grant of immunity is to be null and void if the defendant testifies falsely, or fails to cooperate fully with any interview by the FBI. If the letter Luskin received is typical of similar letters I have seen, it emphasizes that it is entirely up to the U.S. Attorney to determine whether or not he has testified falsely.

If I were Luskin, I would have some real fears that my client would be unable to restrain himself from lying. But he is not the only one nervous because of today’s news.

Usually, an immunity letter such as the one I am supposing was received by Luskin doesn’t just drop out of the sky. It is only given after the recipient has made what is called “a proffer.” Basically, a proffer is an offer of testimony that takes the form: “If granted immunity, I will testify that XYZ.”

Now, Patrick Fitzgerald is what is known in the trade as a “prosecutor.” He is not, generally speaking, called an “immunizer.” He does not pass out the “Get out of jail free” cards for nothing. Whatever XYZ was, it was something that Fitzgerald must have thought was worth something.

The general strategy for a prosecuting attorney is to go up the chain. It can be up the supply chain in a drug prosecution, or it can be up the chain of command in a fraud prosecution. With Karl Rove, the chain does not go very much further up.

And here’s why this is a big bummer for Karl Rove. If he offered XYZ, and XYZ is testimony against one or both of the people up the chain from him, it really cuts down the likelihood that one of them will be in a pardoning mood on January 19, 2009.

As Michelle Malkin said in a different context: “Boo-freakin’-hoo.”

“… and tell ’em Big Mitch sent ya!”

*P.S. "Black and malignant heart" is a legal term. Really.

CORRECTION: Upon further review:

18 U.S.C. § 6002. Immunity generally

Whenever a witness refuses, on the basis of his privilege against
self-incrimination, to testify or provide other information in a
proceeding before or ancillary to -
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of Congress, a joint committee of the two
Houses, or a committee or a subcommittee of either House,

and the person presiding over the proceeding communicates to the
witness an order issued under this title, the witness may not
refuse to comply with the order on the basis of his privilege
against self-incrimination; but no testimony or other information
compelled under the order (or any information directly or
indirectly derived from such testimony or other information) may be
used against the witness in any criminal case, except a prosecution
for perjury, giving a false statement, or otherwise failing to
comply with the order.

The blog above has been corrected.