No Easy Answers


Monday, April 10, 2006

Libby Motion to Compel Discovery - Reporters [Doc 29-1]


Case 1:05-cr-00394-RBW          Document 29-1   Filed 01/26/2006      Page 1 of 27



                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA                        )
                                                )
       v.                                       )        CR. NO. 05-394 (RBW)
                                                )
I. LEWIS LIBBY,                                 )        Oral Argument Requested
      also known as "Scooter Libby,"            )
      Defendant.                                )




MOTION OF I. LEWIS LIBBY TO COMPEL DISCOVERY OF INFORMATION
      REGARDING NEWS REPORTERS AND ORGANIZATIONS




Theodore V. Wells, Jr.                    William H. Jeffress, Jr.
James L. Brochin                          Alex Bourelly
Paul, Weiss, Rifkind, Wharton             Baker Botts LLP
 & Garrison LLP                           1299 Pennsylvania Ave., NW
1285 Avenue of the Americas               Washington, DC 20004
New York, NY 10019-6064                   (202) 639-7751
(212) 373-3089

Joseph A. Tate                            John D. Cline
Dechert LLP                               Jones Day
2929 Arch Street                          555 California Street, 26th Floor
Cira Centre                               San Francisco, CA 94104
Philadelphia, PA 19104                    Tel: (415) 626-3939
                                          Fax: (415) 875-5700




January 26, 2006



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                                           TABLE OF CONTENTS

                                                                                Page(s)

TABLE OF AUTHORITIES................................................................iii

BACKGROUND .......................................................................... 1

          A.        The Indictment Alleges That Mr. Libby Lied About
                    Conversations with Three Reporters............................... 1

          B.        Mr. Libby's Requests for Production of Relevant Materials
                    Pertaining to News Reporters and Organizations Have Been Denied . 2

          C.        The Information Sought by This Motion ........................... 4

ARGUMENT............................................................................. 6

          A.        Courts In This Circuit Interpret Rule 16 Broadly................. 6

          B.        The Discovery Mr. Libby Has Requested is Material to
                    the Preparation of His Defense .................................. 8

                    1.         The Indictment Places News Reporters' Knowledge
                               About Ms. Wilson's Employment Status Squarely at Issue 8

                               a.   Allegations Concerning Tim Russert............... 9

                               b.    Allegations Concerning Matthew Cooper
                                        and Judith Miller........................... 11

                    2.         Information About News Reporters' Sources Is
                               Material to the Preparation of Mr. Libby's Defense .. 12

                    3.         The Defense Needs the Requested Discovery To Investigate
                               Whether There Was a Plan to "Punish" Mr. Wilson by Leaking
                               Information about Ms. Wilson to the Press ........... 14

                    4.         The Requested Discovery is Material to the Defense's
                               Investigation of Whether Ms. Wilson's Affiliation With
                               the CIA Was Known Outside the Intelligence Community
                               and Whether Such Information Was Regarded as Classified . 16

          C.        The Government's Cramped Reading of Rule 16 is Wrong
                    As a Matter of Law ............................................. 18

          D.        Much of the Information Mr. Libby Has Requested Is
                    Discoverable Under Brady ....................................... 20



                                                i



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                                                                                  Page(s)

          E.        The Government's Disclosure Obligations Extend to Subpoenas
                    and Agreements to Limit the Scope of Documents or Testimony
                    by Reporters.................................................... 22

CONCLUSION.......................................................................... 23




                                              ii



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                                   TABLE OF AUTHORITIES

                                          CASES

                                                                                 Page(s)

Brady v. Maryland, 373 U.S. 83 (1963)............................................... 20

Giglio v. United States, 405 U.S. 150 (1972)........................................ 20

In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887 (D.C. Cir. 1999) ... 20

United States v. Bagley, 473 U.S. 667 (1985)........................................ 20

United States v. Edwards, 191 F. Supp. 2d 88 (D.D.C. 2002).......................... 22

United States v. George, 786 F. Supp. 11 (D.D.C. 1991)............................... 7

United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993)................................ 7

*United States v. Marshall, 132 F.3d 63 (D.C. Cir. 1998) ...................... 6-8, 16

United States v. Paxson, 861 F.2d 730 (D.C. Cir. 1988) ............................. 21

United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989)......................... 7

*United States v. Safavian, No. Crim. 05-0375 (PLF), --- F.R.D. ---,
       2005 WL 3529834 (D.D.C. Dec. 23, 2005)....................................passim

United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D.Cal. 1999) ..................... 21

                                         RULES

Fed. R. Crim. P. 16 .............................................................passim

Fed. R. Crim. P. 17 ............................................................. 6, 22

Fed. R. Crim. P. 26.2............................................................... 23




                                                 iii



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                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA                              )
                                                      )
       v.                                             )         CR. NO. 05-394 (RBW)
                                                      )
I. LEWIS LIBBY,                                       )         Oral Argument Requested
      also known as "Scooter Libby,"                  )
      Defendant.                                      )

MOTION OF I. LEWIS LIBBY TO COMPEL DISCOVERY OF INFORMATION
      REGARDING NEWS REPORTERS AND ORGANIZATIONS


               Defendant I. Lewis Libby, through his counsel, hereby moves for an order

compelling the government to produce information in its possession obtained from or

relating to certain news reporters and organizations that is (a) material to the preparation

of the defense under Fed. R. Crim. P. 16, and/or (b) exculpatory or impeachment

information discoverable under the Brady doctrine. The information that is the subject of

this motion has been requested by the defense from the Office of Special Counsel, but the

request has been denied.

                                     BACKGROUND


       A.      The Indictment Alleges That Mr. Libby Lied About Conversations
               with Three Reporters

               The government's investigation in this case began in the wake of the July

14, 2003 publication of a Robert Novak column identifying Valerie Plame as a CIA

employee. A "major focus" of the investigation "was to determine which government

officials had disclosed to the media prior to July 14, 2003 information concerning the



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affiliation of Valerie Wilson with the CIA, and the nature, timing, extent, and purpose of

such disclosures." (Indictment, Count One at ¶ 28.)

               The indictment in this case charges Mr. Libby with obstruction of justice,

false statements, and perjury based upon statements he made during FBI interviews and

before a grand jury about his conversations with three reporters. Specifically, the charges

against Mr. Libby focus on his testimony concerning conversations prior to July 14, 2003

with: (1) Tim Russert of NBC News, (2) Matthew Cooper of Time magazine, and (3)

Judith Miller of The New York Times.

               The indictment alleges that Mr. Libby lied when he testified that Tim

Russert asked him if he "knew that [Joseph] Wilson's wife worked for the CIA," and Mr.

Russert told him that "all the reporters knew it." (Id. at ¶ 32(a)(i).) According to the

indictment, Mr. Russert did not make such statements to Mr. Libby.

               The indictment also alleges that Mr. Libby lied when he testified that he

told Matthew Cooper and Judith Miller "that he had heard that other reporters were

saying that Wilson's wife worked for the CIA." (Id. at ¶ 32(b), (c).) In addition, the

indictment alleges that prior to July 14, 2003 Ms. Wilson's employment by the CIA was

classified and not common knowledge outside the intelligence community. (Id. at ¶ 1(f).)

       B.      Mr. Libby's Requests for Production of Relevant Materials Pertaining
               to News Reporters and Organizations Have Been Denied

               Mr. Libby has made numerous discovery requests to the government

under Rule 16 and the Brady doctrine. This motion concerns the defense's request for

production of documents and information regarding three important issues in this case:

what did the press know prior to July 14, 2003 about whether Valerie Plame Wilson



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worked at the CIA, from whom did they learn it, and with whom did they discuss it. This

information is important for a number of reasons. Most significantly, it relates directly to

the truth or falsity of two alleged false statements by Mr. Libby: (1) that Mr. Russert said

"all the reporters knew" about Ms. Wilson's employment status; and (2) that Mr. Libby

"had heard that other reporters were saying that Wilson's wife worked for the CIA."

               Accordingly, the defense asked the government to provide, for example,

all documents in its possession reflecting knowledge by any reporter or news

organization of Ms. Wilson's possible affiliation with the CIA prior to July 14, 2003. In

response, the prosecution invoked an extraordinarily narrow conception of its disclosure

obligations. The government has agreed to produce documents relating to news reporters

only to the extent that the documents reflect contact between Mr. Libby and reporters.

The government has refused to produce information in its possession about what

reporters learned from sources other than Mr. Libby about Ms. Wilson's employment

status prior to July 14, 2003 on the ground that such documents are not relevant to a

perjury and obstruction case. ^1

               The government's decision to withhold the requested materials from the

defense is based on a view of relevance that ignores its own indictment. The charges put

squarely at issue what "reporters knew" about Ms. Wilson's employment status. It is



1
    The government's refusal to provide any further documents or information
    concerning news reporters is indicative of what has been in general a narrow and
    overly restrictive view of its discovery obligations. For example, the prosecution has
    disclaimed its obligation to obtain and produce documents and information within the
    possession, custody or control of Executive Branch agencies other than the Office of
    Special Counsel and the FBI. The defense will address this issue in a separate
    motion.


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material to the preparation of the defense to determine the identity of all reporters who

knew that Ms. Wilson worked for the CIA, and to discover when they learned such

information, from whom they learned it, and whether they disclosed it further after

learning it. Such information will be useful not only for investigating the truth or falsity

of the indictment's allegations, but also for exploring the ways in which information

about Ms. Wilson's employment status circulated in Washington or reached Mr. Libby.

               There can be no information more material to the defense of a perjury case

than information tending to show that the alleged false statements are, in fact, true or that

they could be the result of mistake or confusion. The government should not be allowed

to charge Mr. Libby with lying about statements concerning what reporters knew about

Ms. Wilson's identity, and at the same time deny him information that may establish one

of these possible defenses. On this important point, Mr. Libby is entitled to know what

the government knows. Only with this information can the defense adequately

investigate the accuracy of the allegations in the indictment and begin to determine if

potential witnesses may have misremembered the conversations alleged in the

indictment.

       C.      The Information Sought by This Motion

               Because the government has failed to meet the disclosure mandates of

Rule 16 and Brady, this motion seeks to compel the government to produce:

               1.      All documents ^2 and other information reflecting knowledge by any

                       news reporter or employee of a news organization of Valerie


2
    As used herein the term "documents" includes all written or recorded materials of any
    kind, all e-mails and electronically stored information, and all video or audio
    recordings.


                                              4



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                       Plame Wilson's ^3 possible affiliation with the CIA or her role in
                       connection with Joseph Wilson's trip to Niger prior to July 14,
                       2003. ^4

               2.      All documents and other information reflecting any mention of
                       Valerie Plame Wilson in any communication between a news
                       reporter and a government official, another news reporter, an
                       employee of a news organization, or any other person prior to July
                       14, 2003.

               3.      Copies of subpoenas issued to reporters and news organizations
                       during the grand jury investigation, and any agreements by the FBI
                       or Office of Special Counsel to limit the scope of the information
                       supplied pursuant to those subpoenas. ^5

               The information requested by this motion is not the only information Mr.

Libby seeks under Rule 16 and Brady. Further discovery motions will be necessary once

we closely review the government's recently received response to our latest written

requests and complete our review of the discovery we have received or have been

promised. The present motion is filed at this time because the government has informed

the defense that it will not fully disclose the information sought by the defense

concerning news reporters and media organizations voluntarily. Early resolution of this

dispute will enable the defense to determine the necessity and scope of pretrial subpoenas


3
    As used herein "Valerie Plame Wilson" means the wife of former Ambassador Joseph
    Wilson, whether referred to by name (including the names Valerie Plame, Valerie
    Wilson, Victoria Wilson, and Valerie Flame), or by other reference such as "Wilson's
    wife" or "wife" or initials where the reference is believed to concern Valerie Plame
    Wilson.
4
    We note that documents and information are responsive to the requests in this motion
    as long as they relate to events or communications that occurred prior to July 14,
    2003, even if they were generated after that date.
5
    The government has advised that it will provide the defense with copies of subpoenas
    and pertinent correspondence relating to reporters referenced in the indictment and/or
    whom the government expects to call at trial. However, the government is
    withholding subpoenas and correspondence relating to other reporters.


                                             5



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duces tecum to third parties ­ subpoenas that we anticipate may be resisted by some news

organizations and therefore lead to protracted legal proceedings.

                  To the extent that the information requested by this motion is already in

the possession of the government, obtaining the information from the government rather

than from reporters or news organizations may minimize prolonged litigation with those

parties. Such litigation may not be entirely avoidable, however, given that the

government may not possess all of the information relating to news reporters and

organizations that the defense needs to prepare for trial. But the government should not

be permitted to withhold the information sought by this motion and force the defense to

engage in protracted litigation with media organizations regarding the enforceability of

Rule 17(c) subpoenas simply to obtain information the government is obligated to

provide itself.

                                         ARGUMENT


        A.        Courts In This Circuit Interpret Rule 16 Broadly

                  Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure requires

the government to disclose to the defense all documents and other materials "within the

government's possession, custody, or control" that are "material to preparing the

defense." The D.C. Circuit has consistently taken an expansive view of what the term

"material" means in this context. Under the D.C. Circuit's approach, "evidence is

material under Rule 16 as long as there is a strong indication that it will play an important

role in uncovering admissible evidence, aiding witness preparation, corroborating

testimony, or assisting impeachment or rebuttal." United States v. Marshall, 132 F.3d




                                               6



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63, 68 (D.C. Cir. 1998) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir.

1993)) (internal quotation marks omitted).

                Courts in this jurisdiction interpret the scope of Rule 16 broadly to ensure

that the defense has a fair opportunity to prepare for trial. United States v. Poindexter,

727 F.Supp. 1470, 1473 (D.D.C. 1989) ("The language and the spirit of the Rule are

designed to provide to a criminal defendant, in the interest of fairness, the widest possible

opportunity to inspect and receive such materials in the possession of the government as

may aid him in presenting his side of the case."). Accordingly, the "materiality standard

normally is not a heavy burden." Lloyd, 992 F.2d at 351 (internal citation and quotation

marks omitted); United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991) (the

materiality hurdle "is not a high one").

                Two additional points bear mentioning here. First, Rule 16 focuses on the

preparation of the defense. Therefore, documents are material under Rule 16 and subject

to disclosure if they help the defense to ascertain the strengths and weaknesses of the

government's case. Marshall, 132 F.3d at 67-68. For that reason, the government is

required to disclose both inculpatory and exculpatory evidence under Rule 16. Id. at 67

("Inculpatory evidence . . . is just as likely to assist in `the preparation of the defendant's

defense' as exculpatory evidence"); United States v. Safavian, No. CRIM.05-0370 PLF,

 ---- F.R.D. ----, 2005 WL 3529834, *4 (D.D.C. Dec. 23, 2005) (Rule 16 "is not limited

to evidence that is favorable or helpful to the defense and does not immunize inculpatory

evidence from disclosure") (a copy of this opinion is attached as Ex. A). Understanding

the "true strength of the government's evidence" is critical, because such knowledge

allows the defense to prepare strategies to confront damaging evidence at trial, conduct


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investigations to discredit such evidence, or avoid presenting defenses that are undercut

by such evidence. Marshall, 132 F.3d at 68. That is precisely how Mr. Libby intends to

use the information sought from the government here.

               Second, the government is forbidden from "engag[ing] in gamesmanship

in discovery matters." Id. at 69. This prohibition means "the government cannot take a

narrow reading of the term `material' in making its decisions on what to disclose under

Rule 16." Safavian, 2005 WL 3529834 at *3. In that vein, the government is not

permitted to avoid its Rule 16 disclosure obligations by attempting to define or limit what

types of defenses are appropriate for the defendant to set forth to counter the charges in

an indictment. Id. (the government may not "put itself in the shoes of defense counsel in

attempting to predict the nature of what the defense may be or what may be material to its

preparation"). Yet, that is exactly what the government is attempting to do here.

       B.      The Discovery Mr. Libby Has Requested is Material to the Preparation
               of His Defense

               Applying these standards leads to the inexorable conclusion that the

documents requested by this motion, if in the possession of the United States, must be

disclosed to the defense.

               1.      The Indictment Places News Reporters' Knowledge About Ms.
                       Wilson's Employment Status Squarely at Issue

               The alleged false statements by Mr. Libby in the indictment consist largely

of characterizations of what journalists knew and were saying prior to the publication of

the Novak column on July 14, 2003 about Ms. Wilson's employment by the CIA.

Consequently, what reporters in fact knew about Ms. Wilson, when they knew such

information, from whom they learned it, and with whom they may have subsequently


                                             8



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discussed it is material to the preparation of the defense. And such evidence is no less

material if it fails to relate directly to a conversation between Mr. Libby and a news

reporter.

               a.      Allegations Concerning Tim Russert

               The indictment alleges that Mr. Libby falsely stated that Mr. Russert asked

him if he "knew that Wilson's wife worked for the CIA," and that Mr. Libby falsely

stated that Mr. Russert told him that "all the reporters knew" about Ms. Wilson's

employment status. Accordingly, critical questions for the defense in preparing its case

are whether, prior to July 14, 2003, Mr. Russert may have known ­ from whatever source

­ that Ms. Wilson was employed by the CIA, and whether it was true that other reporters

knew this information. The government's refusal to turn over the requested documents

undermines the ability of the defense to investigate fully the answers to these questions.

               The expected testimony of Mr. Russert illustrates precisely why the

information Mr. Libby seeks in this motion is material to the preparation of the defense

within the meaning of Rule 16. The government presumably expects to call Mr. Russert

at trial to testify that when he spoke with Mr. Libby on or about July 10, he did not ask

Mr. Libby if he "knew that Wilson's wife worked for the CIA," and did not tell Mr.

Libby "that all the reporters knew it." In response to that testimony Mr. Libby would

have the right, if he elected to do so, to produce testimony to the jury tending to show that

many reporters did know about Ms. Wilson's employment status and that Mr. Russert did

make the statement Mr. Libby allegedly attributed to him, but has forgotten about it.

Accordingly, in light of Mr. Russert's likely testimony, the materiality of the requested

information is indisputable.


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               Another issue concerning Mr. Russert's expected testimony which the

defense needs to investigate to examine him effectively at trial is whether any of the NBC

reporters who worked for him were aware of Ms. Wilson's identity prior to July 14,

2003. ^6 If any such NBC reporters knew this information before that time, the defense

would be entitled to gather that information to prepare its cross-examination of Mr.

Russert. Once the defense gets further information about the sources who disclosed Ms.

Wilson's employment status, we can investigate whether these sources were in

communication with any reporters in the NBC Washington bureau prior to July 14, 2003,

or if they talked to other individuals who might have passed this information on to NBC's

Washington reporters.

               In this vein, we note that on October 3, 2003, an NBC News reporter who

works with Mr. Russert stated on television that Ms. Wilson's employment by the CIA

was "widely known among those of us who cover the intelligence community." (Tr.

CNBC, "Capital Report," Oct. 3, 2003, attached as Ex. B.) Although in public statements

made two years later, she appears to have retracted her original statement, the defense is

entitled to investigate further what she knew about Ms. Wilson's identity and when she

knew it.

               In addition, the defense could choose to advance the argument that the

statement that "all the reporters knew" is a factually correct statement that was made to

Mr. Libby, and show that Mr. Libby is simply confused about whether Mr. Russert is the

source of the statement. To build the case that "all the reporters knew," it is essential for


6
    Mr. Russert is the NBC News Washington bureau chief, and as such he functions in a
    managerial capacity with respect to a number of other NBC reporters.


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the defense to analyze the information in the government's possession regarding what

reporters knew, how they learned it, and with whom they discussed it. Indeed,

information about the persons who disclosed the information in the first place is critical.

Further follow-up may show that these sources relayed information about Ms. Wilson to

other reporters or other persons, who in turn may have told others as part of a chain of

conversations that reached Mr. Libby.

               b.      Allegations Concerning Matthew Cooper and Judith Miller

               Mr. Libby also needs the documents sought by this motion to prepare his

defense to the charges that he lied about his conversations with Mr. Cooper and Ms.

Miller. The indictment alleges that Mr. Libby lied when he said he told Mr. Cooper and

Ms. Miller "that he had heard that other reporters were saying that Wilson's wife worked

for the CIA." (Indictment, Count One ¶ 32(b), (c).) The defense thus has the right to

investigate and develop evidence showing that other reporters both knew about Ms.

Wilson's employment by the CIA prior to June 14, 2003 and were discussing this fact

with government officials, some of whom in turn may have shared such information with

Mr. Libby. Such evidence would demonstrate that the alleged false statement by Mr.

Libby is factually correct.

               The relevance of this information does not hinge on whether or not Mr.

Libby was involved in any such conversations. Mr. Libby talked to dozens of people

each day, many of whom talked to reporters frequently themselves. Mr. Libby may well

have heard what reporters were saying about Ms. Wilson indirectly, through any one of

the many government officials with whom he interacted each day. The defense has a




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right to explore the extent to which reporters were saying that Ms. Wilson worked at the

CIA and to discover to whom they made such statements.

               Further, just as the defense may seek to present the argument that Mr.

Libby misrecollected how or from whom he heard information about Ms. Wilson's

identity, the reporters who have provided information to the government may also be

confused about how they learned that Ms. Wilson worked for the CIA. That is, they may

have mistakenly attributed statements to Mr. Libby that were in fact made by other

government officials. The defense needs discovery materials about reporters' discussions

with other sources to investigate this possibility.

               2.      Information About News Reporters' Sources Is Material to the
                       Preparation of Mr. Libby's Defense

               It is necessary for the defense to determine and investigate which

individuals served as sources for journalists who learned about Ms. Wilson's employment

status prior to July 14, 2003. The defense is certainly permitted to conduct an

investigation to ascertain if there are more reporters who knew about Ms. Wilson's

employment status than those identified to us by the government. The identity of the

reporters' sources, and the nature of the sources' conversations with reporters, are

particularly significant to the preparation of the defense.

               Obtaining such information will allow the defense to further investigate

and evaluate the accuracy of alleged statements that "all the reporters knew" about Ms.

Wilson's identity and analyze factual allegations that Ms. Wilson's employment status

was not common knowledge outside the intelligence community. Once we learn the

names of the reporters' sources, we will attempt to interview them, investigate whether



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they discussed information about Ms. Wilson with anyone else, and evaluate whether to

subpoena them for testimony at trial.

               Each source who divulged information concerning Ms. Wilson prior to

July 14, 2003 represents the first link in a potential chain of discussions that the defense

is entitled to investigate. For example, in a recent, post-indictment development, a

Washington Post reporter publicly stated that he learned of Ms. Wilson's employment

well before Mr. Libby is alleged to have disclosed it outside the government, from a

source who has been disclosed to the Special Counsel, but not to Mr. Libby. (Jim

VandeHei & Carol Leonnig, Woodward Was Told of Plame More than Two Years Ago,

WASHINGTON POST, Nov. 16, 2005, at A01, attached as Ex. C.) The same reporter

disclosed that he mentioned this information to another Washington Post reporter, and

that he possibly mentioned it to Mr. Libby. (Id.; Bob Woodward, Testifying in the CIA

Leak Case, WASHINGTON POST, Nov. 16, 2005, at A08, attached as Ex. D.) Such

revelations underscore that when reporters learned of Ms. Wilson's identity from their

sources, those reporters in turn became secondary sources who conveyed information

about Ms. Wilson to other journalists or other government officials. Those government

officials could have passed on what they heard from reporters to Mr. Libby.

               The defense is entitled to explore all such primary and secondary sources

as part of a thorough investigation regarding who outside the intelligence community

learned of Ms. Wilson's employment status prior to July 14, 2003, and how widely such

information was spread. Such information bears directly on the accuracy or inaccuracy

of whether "all reporters knew"; whether Mr. Libby "had heard that reporters were saying




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that Wilson's wife worked for the CIA"; and whether Ms. Wilson's employment status

was not well known outside the intelligence community.

               3.      The Defense Needs the Requested Discovery To Investigate
                       Whether There Was a Plan to "Punish" Mr. Wilson by Leaking
                       Information about Ms. Wilson to the Press

               Potential witnesses in this case have stated publicly that they believe the

Administration waged a campaign to "punish" Mr. Wilson by leaking his wife's name to

journalists. The government's investigation also pursued this line of inquiry. The

defense needs the requested discovery concerning what government officials other than

Mr. Libby said to reporters about Ms. Wilson to investigate whether such a plot in fact

existed. Documents that assist such an investigation are thus material to the preparation

of the defense for several reasons.

               As a threshold matter, if a witness holds the belief that the Administration

leaked Ms. Wilson's name because it sought revenge on Mr. Wilson, it is possible that

witness could be biased against Mr. Libby. The defense must investigate and determine

how to address such potential bias before trial, and must be prepared, if necessary, to

demonstrate the falsity of the accusation that Ms. Wilson's name was leaked for

malicious purposes.

               For example, Mr. Cooper, one of the government's key witnesses, has

written articles and made public statements that advance the idea that the Administration

pursued a coordinated effort to punish Mr. Wilson by leaking information about his wife.

On July 17, 2003, Mr. Cooper published an article on Time.com titled "A War on

Wilson?" He suggested in that article that the possibility of such a war against Wilson by

the Administration was supported by interviews with "government officials":


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               [S]ome government officials have noted to TIME in
               interviews, (as well as to syndicated columnist Robert
               Novak) that Wilson's wife, Valerie Plame, is a CIA official
               who monitors the proliferation of weapons of mass
               destruction. These officials have suggested that she was
               involved in her husband's being dispatched to Niger . . .

(Matthew Cooper, A War on Wilson, Time.com, July 17, 2003, attached as Ex. E.) The

article went on to quote Mr. Wilson as saying that such disclosures constituted "a smear

job." (Id.) Almost a year and a half later, Mr. Cooper elaborated on what he saw as a

"malevolent" plot during a televised interview:

               What I was trying to do in my piece in July 2003 . . . was to
               point out what the leakers were doing. I was trying to call
               attention to it. And I think Novak was in a way kind of a
               transmission belt for the leakers, basically repeating their
               smears. I was trying to say, hey, they're smearing this guy.
               There are some malevolent things going on here. Take a
               look.

(Tr. CNN, "Reliable Sources," December 12, 2004, attached as Ex. F.) (Emphasis

added.)

               In light of such statements by a key government witness like Mr. Cooper,

whether or not the Administration attempted to smear Mr. Wilson or his wife is certainly

information that is important for the defense to investigate and consider for purposes of

its examination of Mr. Cooper. A belief that Mr. Libby may have been involved in a

coordinated smear campaign relates directly to possible bias. But to decide whether and

how to address such possible bias, the defense must first investigate which persons

disclosed Ms. Wilson's identity, determine their motivations, and finally assess whether

such evidence can reasonably be construed to support accusations of a smear campaign.

               Second, whether a plot to harm Mr. Wilson existed is directly relevant to

issues of motive and intent that may arise at trial. The government may well argue that


                                            15



Case 1:05-cr-00394-RBW          Document 29-1        Filed 01/26/2006       Page 20 of 27



Mr. Libby's motive to lie was to avoid discovery of this alleged plot. Should Mr. Libby

take the stand, the prosecution could also seek to cross-examine him about his

motivations for certain of his statements to reporters. In such a scenario, Mr. Libby must

be prepared to deal with challenges to his credibility during the government's cross-

examination, and learning whether a plot to punish Mr. Wilson existed is critical to such

preparation. The defense has a clear obligation to anticipate the government's arguments

regarding Mr. Libby's motivations and credibility and to begin evaluating strategies for

countering such attacks in advance of trial. Without the information requested by this

motion regarding the nature of disclosures about Ms. Wilson to reporters, the defense

cannot complete these crucial tasks. See Marshall, 132 F.3d at 67-68 (evidence must be

disclosed pursuant to Rule 16 if it helps the defense prepare to avoid "potential pitfalls"

and "minefield[s]" at trial).

                4.      The Requested Discovery is Material to the Defense's
                        Investigation of Whether Ms. Wilson's Affiliation With the CIA
                        Was Known Outside the Intelligence Community and Whether
                        Such Information Was Regarded as Classified

                The indictment also puts directly at issue the question of who outside the

intelligence community knew that Ms. Wilson worked at the CIA by alleging that this

fact was classified and not "common knowledge outside the intelligence community."

(Indictment, Count One at ¶ 1(f).) The government presumably intends to offer proof in

support of that allegation. Mr. Libby is entitled to contest that proof and offer proof of

his own to the contrary. The defense has the right to show the jury that Ms. Wilson's

identity was common knowledge among certain reporters or other individuals before Mr.

Novak's article was published. Evidence, or information that might lead to evidence,



                                             16



Case 1:05-cr-00394-RBW          Document 29-1          Filed 01/26/2006      Page 21 of 27



tending to contradict an allegation of the indictment is unquestionably evidence that the

government has an obligation to disclose. And if any of that information is contained in

documents, those documents are plainly "material to the preparation of the defense" and

must be disclosed under Rule 16(a)(1)(E).

               The nature of conversations between reporters and their sources is

particularly relevant to whether Ms. Wilson's employment status was regarded as

classified. For example, the Washington Post reporter referred to above has stated

publicly that when he testified under oath in this case, he told the government that when

his source mentioned Ms. Wilson, the reference seemed "casual and offhand," and did

not appear "either classified or sensitive." (Bob Woodward, Testifying in the CIA Leak

Case, Ex. D.) The defense is entitled to learn more about this particular conversation,

and to investigate any other such conversations between journalists and individuals who

shared information concerning Ms. Wilson's employment status. For example, it would

certainly be material to the preparation of the defense if the Washington Post reporter's

source told any other reporters or any other individuals the same information about Ms.

Wilson, and in the same casual and offhand manner. If many other individuals in

Washington did not consider Ms. Wilson's affiliation with the CIA classified or even

sensitive, Mr. Libby has the right to learn about these facts as part of preparing his

defense. Similarly, if the converse is true, and certain reporters or government officials

did believe Ms. Wilson's employment status was a well-kept secret, such information is

just as important to the preparation of the defense.



                                             17



Case 1:05-cr-00394-RBW          Document 29-1        Filed 01/26/2006       Page 22 of 27



       C.      The Government's Cramped Reading of Rule 16 is Wrong
               As a Matter of Law

               In resisting disclosure, the government has asserted that this is a

prosecution involving "purely obstruction offenses" to which the requested information

concerning news reporters bears little relevance. The government considers information

relating to reporters' knowledge regarding Ms. Wilson's employment status irrelevant to

this case unless such information also refers to Mr. Libby. The government's view of

relevance is both factually and legally wrong.

               As we have shown above, the government's claim that Mr. Libby is not

entitled to the documents sought by this motion because they "bear little relevance to the

prosecution of a charge involving purely obstruction offenses" is wrong as a matter of

fact. Such documents are highly relevant to this case as the government has charged it in

the indictment. The prosecution's position is wrong as a matter of law as well. As Judge

Friedman recently pointed out, in complying with its obligations under Rule 16 the

government cannot substitute its own view of what is needed to prepare the defense for

that of the defendant. See Safavian, 2005 WL 3529834 at *3. The documents sought are

material if they will help the defense with trial preparation tasks such as evaluating the

strength of the government's case, investigating possible defenses, finding additional

relevant evidence, and developing strategies to impeach government witnesses. Id. at *4.

It is not up to the government to define Mr. Libby's defenses to the indictment or to

determine what is useful in preparing them.

               Indeed, the government recently tried to advance a similarly narrow view

of its obligations under Rule 16 and Brady in Safavian, which also involved charges of

obstruction and false statements. Not surprisingly, the court rejected that view. In that


                                              18



Case 1:05-cr-00394-RBW           Document 29-1         Filed 01/26/2006       Page 23 of 27



case, the defendant was accused of falsely stating to various government officials that a

certain lobbyist had no business with his employer, the General Services Administration

("GSA"). Id. at *1. At the outset of the case, the defendant requested from the

government e-mails and correspondence between associates of the lobbyist concerning

certain GSA projects. Id. at *7. The government refused to produce the requested

documents "largely on the ground that since [the defendant] never saw these e-mails and

other correspondence they could have no bearing on his state of mind when he

communicated with [various government officials], or be otherwise material to any

conceivable defense." Id.

                 The Court rejected the government's narrow conception of the scope of its

discovery obligations and ordered production of the requested e-mails, stating:

                 Simply because the e-mails themselves were not sent to or
                 received by [the defendant] and therefore do not directly
                 reflect his state of mind, and may or may not be admissible
                 in evidence at trial, does not mean that they are not material
                 to the preparation of a defense or that they will be unlikely
                 to lead to admissible evidence. To the contrary, [the
                 requested] e-mails . . . may very well include information
                 helpful to the defendant in finding witnesses or documents
                 that could support his contention.

Id. Applying this rationale here compels the same result. The government should be

required to produce all documents and information in its possession pertaining to what

reporters knew about Ms. Wilson, and with whom they discussed that knowledge, prior to

July 14, 2003.



                                              19



Case 1:05-cr-00394-RBW         Document 29-1        Filed 01/26/2006       Page 24 of 27


       D.      Much of the Information Mr. Libby Has Requested Is
               Discoverable Under Brady

               The government's disclosure obligations do not end with Rule 16. Much

of the discovery sought by this motion is also firmly within the ambit of documents that

must be disclosed under the doctrine set forth in Brady v. Maryland, 373 U.S. 83 (1963),

and its progeny.

               Information, for example, that tends to show that in fact, as Mr. Libby is

alleged to have stated with respect to Mr. Russert, "all reporters" did know that Ms.

Wilson worked for the CIA is discoverable under Brady. Similarly, information that,

contrary to what is alleged in the indictment, Ms. Wilson's affiliation with the CIA was

indeed common knowledge outside the intelligence community falls within the scope of

Brady. (Indictment, Count One at ¶ 1(f).) The same is true for information that tends to

show that people who knew that Ms. Wilson worked for the CIA did not treat that

information as classified.

               Under Brady, the government has an affirmative duty to produce any

evidence favorable to the defendant that is material to either guilt or punishment. See

United States v. Bagley, 473 U.S. 667, 674-75 (1985) (the prosecution is required "to

disclose evidence favorable to the accused that, if suppressed, would deprive the

defendant of a fair trial"). Both exculpatory information and evidence that can be used to

impeach the prosecution's witnesses are considered "favorable" under Brady and must be

disclosed by the government. Id. at 676-77; see also Giglio v. United States, 405 U.S.

150, 154-55 (1972); In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887,

892 (D.C. Cir. 1999).



                                            20



Case 1:05-cr-00394-RBW          Document 29-1         Filed 01/26/2006       Page 25 of 27



               The prosecution must produce to the defense not only all favorable

evidence that is admissible, but also all evidence "that is likely to lead to favorable

evidence that would be admissible." Safavian, 2005 WL 3529834 at *5 (quoting United

States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D.Cal. 1999)). Just as with Rule 16

disclosure, the government must interpret its Brady obligations broadly. "Where doubt

exists as to the usefulness of the evidence to the defendant, the government must resolve

all such doubts in favor of full disclosure." Id. (citing United States v. Paxson, 861 F.2d

730, 737 (D.C. Cir. 1988) (insufficient for government to provide "niggling excuses" for

its failure to provide potentially exculpatory evidence)). And, in some respects, the

Brady disclosure obligation is broader than Rule 16 because it requires production not

just of documents, but also of information known to prosecutors that is not contained in

documentary evidence.

               This motion requires the Court to evaluate the government's Brady

obligations before trial rather than in the post-conviction context, as is more often the

case. Safavian is again particularly instructive. In that decision, the court explained the

materiality standard under Brady that applies to pretrial discovery:

               [T]he government must always produce any potentially
               exculpatory or otherwise favorable evidence without regard
               to how the withholding of such evidence might be viewed--
               with the benefit of hindsight--as affecting the outcome of
               the trial. The question before trial is not whether the
               government thinks that disclosure of the information or
               evidence it is considering withholding might change the
               outcome of the trial going forward, but whether the
               evidence is favorable and therefore must be disclosed. . . .
               The only question before (and even during) trial is whether
               the evidence at issue may be "favorable to the accused"; if
               so, it must be disclosed without regard to whether the



                                              21



Case 1:05-cr-00394-RBW          Document 29-1         Filed 01/26/2006         Page 26 of 27


               failure to disclose it likely would affect the outcome of the
               upcoming trial.

Id. (citing cases); see also United States v. Edwards, 191 F. Supp. 2d 88, 90 (D.D.C.

2002) (in the pre-trial context, courts "look with disfavor on narrow readings by

prosecutors of the government's obligations under Brady").

         E.    The Government's Disclosure Obligations Extend to Subpoenas and
               Agreements to Limit the Scope of Documents or Testimony by Reporters

               Finally, the defense is entitled to discovery of all subpoenas issued to the

press and any agreements the government may have reached with reporters or their

employers to limit the scope of their testimony or the documents they would produce.

The government has agreed to produce such information for the reporters referred to in

the indictment and/or whom it intends to call at trial, but has refused to produce it for

other reporters. This effort by the government to avoid its discovery obligations is based

on the same fundamentally flawed view of materiality that has driven the government's

refusal to provide other discovery from reporters that is not directly connected to Mr.

Libby.

               Information about subpoenas and agreements to limit their scope is

discoverable under Rule 16 because it will help the defense ascertain what additional

information must be obtained from news reporters to prepare for trial. The defense needs

to determine whether to issue pretrial subpoenas to journalists or their employers for the

necessary information, and may need to demonstrate that such subpoenas meet the

prerequisites of Rule 17(c). This need is not limited to documents the defense may seek

with respect to Mr. Cooper, Mr. Russert, and Ms. Miller. Although they are the only

reporters identified by name, the indictment refers repeatedly to "all reporters" or



                                             22



Case 1:05-cr-00394-RBW           Document 29-1      Filed 01/26/2006      Page 27 of 27




"reporters" generally, extending the universe of discoverable information beyond Cooper,

Miller and Russert. Further, discovery of such agreements is necessary so the defense

can adequately analyze the witness statements that the government will provide under the

Jencks Act and Rule 26.2.

                                     CONCLUSION

               For the reasons stated herein, the request for disclosure of documents and

information should be granted, and an Order entered in the form attached hereto.

January 26, 2006                                    Respectfully submitted,


/s/ Theodore V. Wells, Jr.                    /s/ Theodore V. Wells, Jr. for       _
Theodore V. Wells, Jr.                        William H. Jeffress, Jr.
(DC Bar No. 468934)                           (DC Bar No. 041152)
James L. Brochin                              Alex Bourelly
(DC Bar No. 455456)                           (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                 Baker Botts LLP
  & Garrison LLP                              1299 Pennsylvania Ave., NW
1285 Avenue of the Americas                   Washington, DC 20004
New York, NY 10019-6064                       (202) 639-7751
(212) 373-3089

/s/ Theodore V. Wells, Jr. for       _        /s/ Theodore V. Wells, Jr. for       _
Joseph A. Tate                                John D. Cline
Dechert LLP                                   (D.C. Bar No. 403824)
2929 Arch Street                              Jones Day
Cira Centre                                   555 California Street, 26th Floor
Philadelphia, PA 19104                        San Francisco, CA 94104
                                              Tel: (415) 626-3939
                                              Fax: (415) 875-5700




                                           23

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