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On October 6, Fox News chief White House correspondent Carl Cameron twice falsely informed viewers that Department of Justice rules require the target of an investigation to be notified prior to an indictment. In both cases, Cameron made the claim while reporting on attorney Robert Luskin's assertion that his client, White House senior adviser Karl Rove, had not received a "target letter" from Patrick Fitzgerald, the special prosecutor investigating the CIA leak case. Cameron reported that Luskin's statement meant Rove "has not been notified in any way that he's a target" and, even more conclusively, that he is "not a target" of the investigation. But contrary to Cameron's assertion, Department of Justice guidelines indicate that such notification is not required.
During his announcement on October 6 that Rove had voluntarily opted to appear for a fourth time before the grand jury investigating the leak case, Luskin stated, "I can say categorically that Karl has not received a target letter from the special counsel. The special counsel has confirmed that he has not made any charging decisions in respect to Karl."
On that evening's edition of Fox News' Special Report with Brit Hume, Cameron reported that the Department of Justice requires the delivery of a target letter prior to an indictment and, because Rove had not received one, he was "not a target":
CAMERON: Well, first of all, there has never been any indication in his previous appearances before the grand jury that he couldn't possibly face indictment. However, today Mr. Rove's attorney, Bob Luskin, made it very clear that there has been no so-called target letter, which under Department of Justice rules is required before an indictment. So that Mr. Rove, as of this moment, is not a target.
During an appearance later that evening on Fox Report with Shepard Smith, Cameron again claimed that the government required such notification. Further, he shifted his characterization of Luskin's comments. Beyond reporting that Luskin said Rove had not received a target letter, Cameron reported that Luskin said Rove had "not been notified in any way that he's a target of this investigation":
CAMERON: Tomorrow will be Rove's fourth appearance before the grand jury. Rove's lawyer says there is no plan to revise testimony, and this has nothing to do with last week's testimony of New York Times reporter Judy Miller. His attorney says Rove has not been notified in any way that he's a target of the investigation into whether any White House official disclosed the name of the covert CIA operative. And that is important, because Justice Department rules require such notification before an indictment.
While the vast majority of news outlets reported that Luskin had specifically denied that Rove received a target letter, a Bloomberg article did quote Luskin as saying that his client "has not received any notification that he is a target of the grand jury investigation" [emphasis added]. Therefore, it is not entirely clear whether Luskin gave differing statements to different media outlets or whether Cameron and Bloomberg misreported the original statement quoted above.
The distinction may be important, because the section of the United States Attorney manual pertaining to target notification does not specify the form in which the notice is to be delivered. In other words, Luskin's assertion that Rove did not receive a target letter does not answer the broader question of whether Rove received notice of any kind.
But even if Luskin did, in fact, deny that Rove had received any notice, the lack of a target notice does not necessarily mean that Rove is not a target. Contrary to Cameron's assertion, the manual does not require that targets be notified before indictment; it simply states that the prosecutor is "encouraged" to notify targets before seeking an indictment against them:
When a target is not called to testify pursuant to USAM 9-11.150, and does not request to testify on his or her own motion (see USAM 9-11.152), the prosecutor, in appropriate cases, is encouraged to notify such person a reasonable time before seeking an indictment in order to afford him or her an opportunity to testify before the grand jury, subject to the conditions set forth in USAM 9-11.152. Notification would not be appropriate in routine clear cases or when such action might jeopardize the investigation or prosecution because of the likelihood of flight, destruction or fabrication of evidence, endangerment of other witnesses, undue delay or otherwise would be inconsistent with the ends of justice.
During an interview with MSNBC host Dan Abrams on the October 6 edition of The Abrams Report, former U.S. Attorney Solomon Wisenberg confirmed that target notification is "not an absolute requirement." Wisenberg served in the U.S. Attorney's Office for the Western District of Texas under presidents George H.W. Bush and Bill Clinton. He later investigated Clinton as deputy independent counsel during both the Whitewater and Lewinsky probes:
ABRAMS: What does that mean? I mean he's saying -- the lawyer is saying look, I haven't seen a target letter. And a target letter would mean -- this is a letter that tells you, you are the target of this grand jury investigation. He's saying I haven't seen any letter like that.
WISENBERG: Well, that's true. It's not an absolute requirement that a target letter be sent. Though, it usually would in an investigation like this.