No Easy Answers


Thursday, April 13, 2006

Libby's Reply to Gov't Response re: 3rd Motion [Doc 82]

    Case 1:05-cr-00394-RBW       Document 82-1    Filed 04/12/2006      Page 1 of 29



                         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.                             )



                               
      REPLY MEMORANDUM OF LAW IN SUPPORT OF THIRD MOTION OF
                I. LEWIS LIBBY TO COMPEL DISCOVERY
                    
                               
               

Theodore V. Wells, Jr.                   William H. Jeffress, Jr.
James L. Brochin                         Alex J. 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                  Tel.: (202) 639-7751
Tel.: (212) 373-3089                     Fax: (202) 585-1087
Fax: (212) 492-0089

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
Tel: (215) 994-2350                       Fax: (415) 875-5700
Fax: (215) 994-2222
                                       
                                           
                                                                                                   

April 12, 2006

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                                                  TABLE OF CONTENTS
  

  
INTRODUCTION ....................................................................................1
  
ARGUMENT.........................................................................................3

I.        The Jencks Act Does Not Apply to the Materials Sought by This Motion ..................3
                         
II.       Documents Relating to Mr. Wilson's Trip to Niger Are Material to the
          Preparation of the Defense.............................................................6

          A.        The Government's General Arguments To Restrict Discovery Are
                    Unavailing ..................................................................7
       
          B.        The Government Has Failed to Counter the Core Arguments in Mr.
                    Libby's Moving Brief ........................................................8
      
                    1.         The Defense Is Entitled to Documents Necessary To Prepare To
                               Examine Witnesses ................................................9

                    2.         The Defense Is Entitled to Documents that Will Establish the
                               Proper Context in which To View the Events Described in the
                               Indictment ......................................................16
                
                    3.         The Defense Is Entitled to Documents that Will Help Establish that
                               Mr. Libby Had No Motive To Lie ..................................19
               
III.      Whether Other Agencies Are Aligned With the Prosecution Is Not At Issue In
          This Motion...........................................................................22

IV.       The CIA Referral Documents Are Material to the Preparation of the Defense.............23

CONCLUSION......................................................................................26
                                       
                                           
                                                                                                   

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                                       TABLE OF AUTHORITIES

                                                                                             PAGE

                                                      CASES


  In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988)............................................ 25

  In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)............................................ 25

  United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993) ...................................... 11

  United States v. Marshall, 132 F.3d 63 (D.C. Cir. 1998)..................................... 11

  United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989) .................................2

  United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)............................... 10-11, 19 
                
  United States v. Thomas, 97 F.3d 1499 (D.C. Cir. 1996)........................................4
                               
                                                  STATUTES

  18 U.S.C.A. § 3500 ...........................................................................4 

  Fed. R. Crim. P. 6(e) ........................................................................9 

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

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               Defendant I. Lewis Libby, through his counsel, respectfully submits this

memorandum in reply to the Government's Response to Defendant's Third Motion to Compel

Discovery ("Gov't Br.").

                                         INTRODUCTION

               It is a fundamental tenet of our criminal justice system that as of this moment the

government has proven nothing about its case against Mr. Libby. The broad, expansive factual

allegations outlined in the indictment are just that ­ allegations and nothing more. It is necessary

to restate these fundamental ideas because, in an effort to deny defendant necessary discovery,

the government ignores them. Instead, it proceeds from the flawed premise that the defense must

accept the government's version of the facts in crafting its discovery demands. From there, it

leaps to the unreasonable conclusion that the defense is not entitled to documents that will assist

it in contesting the allegations in the indictment.

               But, of course, the opposite is true: the defense has the right to challenge at trial
  
all of the allegations in the indictment. The discovery materials sought by this motion include
  
documents generated, received, or reviewed by key potential trial witnesses about events the
  
government describes in the indictment. These are precisely the documents that will allow the
  
defense to demonstrate to the jury that the government's view of this case is not accurate.
  
               One example illustrates our point. The indictment alleges that in June 2003,

Under Secretary of State Marc Grossman told Mr. Libby that Mr. Wilson's wife worked at the
  
CIA. The government assumes that Mr. Grossman's testimony about any such conversation,
                                                  
including that it took place at all, is accurate and that any further discovery concerning
  
Mr. Grossman's knowledge of these issues is not "relevant to preparing for Mr. Grossman's
  
examination." (Gov't Br. at 11.)       
                                           
                                                                                                   

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               During his grand jury appearances, Mr. Libby testified that he did not recall any

conversations with Mr. Grossman about Mr. Wilson's wife. The defense is absolutely entitled to

investigate whether the conversation alleged by Mr. Grossman actually occurred and to test Mr.

Grossman's memory and credibility about what he did or did not say to Mr. Libby at trial. Like

every fact alleged in the indictment, the facts surrounding Mr. Grossman's alleged conversation

with Mr. Libby have not yet been established ­ they are in dispute. There is simply no precedent  

for the government's view that this Court must accept the truth of the government's proffered

evidence and the accuracy of its theories in determining relevance and materiality under Rule 16.   

               The government's cramped view of Rule 16 is at odds with both the law and

fundamental principles of fairness. Rule 16 must be interpreted to provide a defendant with "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." United States v. Poindexter, 727

F. Supp. 1470, 1473 (D.D.C. 1989). The defense has received nothing close to this kind of

"opportunity" thus far based on the six boxes or so of materials produced by the government.
  
               Finally, nearly all of the arguments the government raises to deny discovery to 
  
Mr. Libby amount to efforts to have it both ways. When the government is trying to narrow the
  
scope of permissible discovery, the defense's arguments about its need to provide the jury with
  
context are deemed "an irrelevant distraction." (Gov't Br. at 18.) Yet, when the government
  
perceives an advantage in taking a broader view, it does not hesitate to do so. While claiming

that the issues in the case are limited to what Mr. Libby said and did, the government offers an
  
elaborate and detailed discussion of the "context" in which the events surrounding the disclosure
                                                  
of the 2002 National Intelligence Estimate ("NIE") took place. Far from focusing on what Mr.
  
Libby said and did, the government's disclosure focused on the role of two other players in the
  

                                           
                                                                                                   
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matter, President Bush and Vice President Cheney, setting off an avalanche of media interest. ^1  

In other words, the government has effectively conceded that the case extends far beyond Mr.  

Libby, but refuses to provide defendant with discovery that reflects that fact.

                The government does not deny that it has documents in its possession that will

help the defense tell the full story of how the government responded to Mr. Wilson's criticism.

When the issue of Valerie Wilson's employment is viewed in its proper context, and the full

story is revealed, it will be clear that Ms. Wilson's role was a peripheral issue. If the press

stories surrounding the government's NIE disclosure illustrate anything, it is that this case is    

factually complex and that the government's notion that it involves only Mr. Libby and the OVP

is a fairy tale. The Court should order the government to turn over what are clearly material   

documents so that the defense can get on with the work of preparing for trial.

                                           ARGUMENT

I.      The Jencks Act Does Not Apply to the Materials Sought by This Motion

                As this Court has previously ruled in this case, the starting point for determining
  
what documents are material to the preparation of the defense under Rule 16 is the indictment. 
  
That document "delineates the evidence to which the defendant's case must respond."
  

  
1
     Perhaps not surprisingly, given the media's overwhelming interest in this case, an erroneous
     statement in the government's response brief led to stories in the press that falsely accused
     Mr. Libby of making inaccurate statements ­ or even lying ­ to reporter Judith Miller about
     the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should
     Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The
     government has since written a letter to the Court to indicate that, consistent with his grand
     jury testimony, Mr. Libby did not tell Ms. Miller "that a key judgment of the NIE held that 
     Iraq was `vigorously trying to procure' uranium." (See Ltr. from Patrick J. Fitzgerald to
     Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his   
     testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about
     WMD and its section on uranium. Accordingly, there is no basis for the media reports that 
     accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.

                                           
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Memorandum Opinion dated Mar. 10, 2006 at 7-8. Further, evidence is material where 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." Id. at 8.

The government and the defense agree on these fundamental principles, and have stated so

repeatedly in their respective briefs. However, the government persists in offering the narrowest

possible application of the legal standards to its discovery obligations ­ an application that is

incompatible with the expansive interpretation of Rule 16 adopted by the D.C. Circuit.

               Perhaps in an implicit recognition that the law with respect to Rule 16 does not     

support its position, the government raises a series of arguments under other ­ inapplicable ­

legal principles. The government attempts to minimize the scope of its Rule 16 obligation by    

arguing that the "bulk" of the documents Mr. Libby seeks fall within the scope of the Jencks Act,

and that requiring production of those materials now would eviscerate any limitations on Rule

16. The government, however, has never raised this argument in response to any of our

discovery requests, and cites no case to support its statement that "correspondence, e-mails, and  
  
reports generated by potential witnesses and those around them" fall within the scope of the   
  
Jencks Act. (Gov't Br. at 8 (emphasis added).) Contrary to the government's brief, the Jencks
  
Act certainly does not apply to statements made by persons "around" witnesses.
  
               Further, we explicitly stated in our opening brief that the defense is not seeking

true Jencks materials such as grand jury transcripts and FBI 302 reports at this time. (Third
     
Motion of I. Lewis Libby to Compel Discovery ("Def. Mot.") at 18.) The Jencks Act governs

the discovery and production only of certain statements made by government witnesses. See 18
     
U.S.C.A. § 3500(e). Ignoring the plain text of the statute, the government fails to recognize that 
     
"not everything a witness has written constitutes his `statement' within § 3500(e)(1)." United
     
     

                                           
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States v. Thomas, 97 F.3d 1499, 1501 (D.C. Cir. 1996). The government has not and cannot

show how the routine correspondence, memoranda, and emails at issue here fall within the

Jencks Act. An email Mr. Grossman received, for example, could not possibly qualify as his

statement under the Act.

               Moreover, even documents that do qualify as "statements made by Government

witnesses" are not covered by the Act if the government does not intend to call those witnesses at

trial. The government has made clear that it intends to call one witness from the State

Department and two from the CIA, which even under the government's unsupportable view of

the Jencks Act hardly justifies a wholesale withholding of material documents from agencies   

such as the State Department, the White House and the CIA. ^2

               The government similarly attempts to limit its discovery obligations by drawing a 

distinction between potential government witnesses and potential defense witnesses. But the

government cites no authority to suggest that it is not appropriate to use Rule 16 to obtain

documents that relate to potential defense witnesses. More importantly, the government's focus     
  
on which party may call a potential witness as a way of assessing whether Rule 16 discovery is 
  
relevant to that witness is a red herring. As we explained in our opening brief, our discussion of
  
how the documents we seek might be relevant to the examination of potential witnesses was a
  
way to provide concrete examples of how documents otherwise responsive to our Rule 16

requests could be used to prepare our defense. The witness by witness discussion did not add a
     
new category of requests. The government's arguments to the contrary are nothing more than an

attempt to avoid its basic obligation to comply with our core discovery requests.

     

2    
    For the purposes of this motion, we use the term "White House" to refer to the Executive  
    Office of the President, including any of its subdivisions.
     

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II.     Documents Relating to Mr. Wilson's Trip to Niger Are Material to the Preparation
        of the Defense

                The indictment puts directly at issue Mr. Wilson's trip to Niger and subsequent

comment and analysis concerning the trip, including discussions about Mr. Wilson's wife and

her role in selecting him for the trip. The government has previously acknowledged that "[t]he

relevance of Mr. Wilson's 2002 trip is the fact that it occurred and that it became a subject of

discussion in spring 2003." (Ltr. from Patrick Fitzgerald to William Jeffress, et al., dated

Jan. 23, 2006, at 2 (emphasis added), attached as Ex. C.) Reports, memoranda and other 

documents relating to the trip itself are relevant because the circumstances and origins of the trip

are discussed in the indictment. Further, because the defense may call Mr. Wilson as a hostile

witness, we need to prepare to examine him, if necessary, on the details of the trip, including his

wife's role in selecting him for the assignment and the findings he reported to the CIA, and later,

to the press.

                In addition, the government introduced a variety of new factual issues in its

response brief. Those issues included, for example, disclosures of the NIE, the role of the        
  
President in the Administration's response to Mr. Wilson's criticism, and Mr. Libby's purported
  
fear that he would be fired for disclosing classified information.
  
                Yet, even after injecting additional factual allegations into this case that reconfirm
  
the defense's view that the case extends beyond Mr. Libby and the OVP, the government

maintains a constricted view of its discovery obligations under Rule 16. With few exceptions, 
     
the government has refused to produce documents from agencies other than the OVP that reflect

reactions of the various agencies to Mr. Wilson's criticism of the Administration. In support of

its position, the government relies on three general arguments, all of which fall short of the mark.

     
    
    
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        A.      The Government's General Arguments To Restrict Discovery Are
                Unavailing

                First, the government contends that the defense is not entitled to open file

discovery. This argument and the cases cited to support it are beside the point, because the   

defense has not sought unlimited access to the prosecution's files. Consistent with Rule 16 and

D.C. Circuit case law, we have made targeted requests for specific categories of documents.   

                The discovery we seek may constitute a significant number of documents, but we  

seriously doubt that granting this motion would be tantamount to ordering open file discovery.

The government has admitted to the defense that it collected hundreds of thousands of  

documents. So far, the government has produced or been ordered to produce approximately

14,000 pages of classified and unclassified discovery ­ only about six boxes. If, for example, the

government gathered a total of 200,000 pages of materials, then the defense has received less

than 10 percent of the government's file. On the numbers alone, the government's document

production has been exceptionally meager, and it appears even more paltry and insufficient in

light of all of the complicated factual issues in this case.

                Second, the government argues that production of the requested documents is not    
  
warranted because Mr. Libby has been charged with perjury, not other crimes. As we discussed
  
in our opening brief, this contention ignores the expansive nature of the factual allegations in the
  
indictment, all of which the defendant has the right to challenge.
  
                Third, the government frequently contends that Mr. Libby's document requests

are overbroad. Its brief is punctuated with conclusory assertions that identifying responsive 
     
documents would be unduly burdensome. But the government never explains how compliance

with our targeted requests would involve any significant burden. For example, it does not

estimate the number of responsive documents, the time it would take to find them, or the

     
    
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resources that would need to be devoted to producing them. In fact, the government admits that

many of the documents we seek are already in the possession of the OSC.

               Nevertheless, to reduce any burden on the government, with respect to documents

responsive to requests A(1) (which asks for documents concerning Mr. Wilson's trip and

subsequent discussion of it), B(1) and B(2) (which relate to the NIE), and B(3) (which asks for

documents relating to the July 11, 2003 statement by Director of Central Intelligence George  

Tenet), the defense will agree to limit these requests to documents that are currently in the actual

possession of the OSC or which the OSC knows to exist. ^3

               We emphasize that request B(1), which calls for documents relating to the

declassification of the NIE, triggers the government's Brady obligations. At trial, the

government intends to introduce testimony regarding Mr. Libby's disclosures of portions of the

contents of the NIE, which appears to be a unique story. Upon hearing about these events, jurors

may suspect that Mr. Libby mishandled classified information or did something else wrong when

he made these disclosures ­ even if the government does not argue that Mr. Libby's actions were

unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby's actions with

respect to the NIE were authorized at the highest levels of the Executive Branch, and would be     
  
entitled to bolster such arguments with documents and testimony.
  
       B.      The Government Has Failed to Counter the Core Arguments in Mr. Libby's
               Moving Brief

               Our moving brief set forth three reasons why documents from government
                
agencies other than the OVP pertaining to Mr. Wilson's trip that the prosecution has refused to


3
    In the event it turns out that the OSC has not sought these documents from other relevant
    agencies, we reserve the right to renew our request and ask that the OSC obtain them.

     
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produce are material to the defense. Below, we describe how the government's brief distorts all

three of these positions and elaborate on why the requested documents are material.

                1.     The Defense Is Entitled to Documents Necessary To Prepare To Examine   
                       Witnesses

                To reiterate the document request at the heart of this motion, we seek documents

that concern Mr. Wilson's trip to Niger, including reports about the origin and circumstances of

the trip, as well as subsequent comment and analysis concerning the trip, such as discussions of

the role played by Ms. Wilson and reactions of Administration officials to Mr. Wilson's attacks.

The defense is entitled to all such documents from each government agency that has played a

significant role in the case: the White House, the State Department and the CIA. At a minimum,

we are entitled to documents concerning Mr. Wilson's trip to Niger that were generated, sent or

received by officials from these agencies who are likely to testify at trial, so we can prepare to

examine them.

                The government argues that it does not have to produce documents concerning  

certain government officials who are "subjects of the ongoing grand jury investigation or

`innocent accused' whose identities are protected from disclosure by Fed. Crim. P. 6(e)." (Gov't  

Br. at 26.) But Rule 16 makes no exception for documents covered by the secrecy requirements       
  
of Rule 6(e). Significantly, the government has cited no case supporting its claim that an
  
ongoing grand jury investigation allows the government to deny an indicted defendant access to
               
documents that are material to the preparation of his defense. Mr. Libby has a firm trial date,
               
and the prosecution has no right to resist providing Rule 16 discovery on the grounds that the

investigation is continuing.
     

     
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               On page seven of its brief, in a section addressing Mr. Libby's requests for

documents concerning potential trial witnesses, the government identifies two specific categories

of documents in the possession of the OSC that it has refused to produce:
                       
               "[D]ocuments related to Mr. Wilson's trip" from agencies other than the OVP that
                




               the government deems "irrelevant to defendant's knowledge or communications
               regarding Mr. Wilson, Ms. Wilson, or Mr. Wilson's trip to Niger"; and

               Certain documents that could be "characterized as reflecting a possible attempt or





               plan to discredit or punish Mr. Wilson or Ms. Wilson." (Id. at 7.)

With respect to the first category of documents, the key disagreement between the government   

and the defense is whether Rule 16 authorizes the production of documents even if they do not

"relat[e] to conversations, correspondence, or meetings involving [Mr. Libby] in which Mr.

Wilson's trip was discussed." (Id.) The government's refusal to produce the requested

documents is unwarranted because the materiality prong of Rule 16 requires only that a   

document be helpful for trial preparation, not that it must have been seen by the defendant, as   

opposed to another witness, to be discoverable.
  
               Significantly, the arguments the government relies on here were resoundingly
  
rejected in another perjury case in this jurisdiction, United States v. Safavian, 233 F.R.D. 12
               
(D.D.C. 2005). In Safavian, the defendant sought, pursuant to Rule 16, the production of email 
               
messages sent or received by other witnesses, which he had never personally seen. The

government opposed Mr. Safavian's requests on the ground that because he had never seen these
     
documents they could have "no bearing on his state of mind" when he made the allegedly false

statements and thus could not be "material to any conceivable defense." Id. at 18. In rejecting

the government's narrow view of discovery, the court held that documents that do not "directly

reflect" the defendant's state of mind may be material to the preparation of a defense to perjury



     
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charges if they "include information helpful to the defendant in finding witnesses or documents

that could support his contention." Id.

               In this case, Mr. Libby's need for documents that he may not have seen is exactly
               
the same. The requested documents may, among other things, corroborate Mr. Libby's grand
               
jury testimony and illuminate potential witness biases. The documents may also permit Mr.

Libby to avoid certain "pitfalls" at trial, which is another purpose of Rule 16 discovery. See

United States v. Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998) (evidence must be disclosed
               
pursuant to Rule 16 if it helps the defense prepare to avoid "potential pitfalls" and "minefield[s]"

at trial).

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

instructive here. In that case, the D.C. Circuit ordered the government to produce documents

pursuant to Rule 16 that the defendant had not generated or reviewed so the defense could

evaluate the credibility and conduct of the government's witnesses. The defendant, Lloyd, a tax

preparer, had been charged with preparing false tax returns for numerous individuals. The

defense requested that the government produce tax returns of the government's taxpayer
               
witnesses for years prior to when those witnesses had engaged Lloyd's services. Id. at 349-350.

The Court of Appeals ruled that such tax returns were material under Rule 16 because "a similar

treatment of a similar issue in a prior year, as to which the indicted tax preparer had played no

role, would tend to suggest that the falsity originated with the taxpayer rather than the preparer,"

and also held that such a return could be "a promising tool for impeachment." Id. at 351.

               Lloyd demonstrates that the government is wrong to claim that "the state of mind

of other individuals is of negligible value" to the defense and that the "conduct of others" is not

relevant. (Gov't Br. at 18.) Moreover, what the government describes as attempts by the



     
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defense to put the conduct and state of mind of others on trial are in reality efforts by the defense

to investigate whether the allegations in the indictment are accurate. In a case where the jury

will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is
               
perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the
               
testimony of certain government witnesses about their conversations with Mr. Libby is not

believable. The materiality of such documents is not tied to whether the documents were

reviewed by Mr. Libby or whether they describe meetings or conversations in which he took 
               
part.

               Below, we provide further examples of why the documents we seek are necessary

to prepare to examine three particular witnesses ­ Mr. Grossman, Mr. Fleischer, and Mr. Rove.

               Marc Grossman. As discussed in the introduction, the government plans to call

Under Secretary Grossman to testify that he discussed Ms. Wilson's CIA employment with Mr.

Libby ­ a conversation that Mr. Libby testified in the grand jury he did not recall and which may

not have occurred as alleged in the indictment. For example, the indictment asserts that this

conversation occurred "[o]n or about June 11 or 12, 2003." (Indictment, Count One, at ¶ 6.)
               
Accordingly, Mr. Grossman's activities in that time period, including any other communications 

about Ms. Wilson that he may have had, are highly relevant. If, for example, documents indicate

that Mr. Grossman confused details of the conversation alleged in the indictment with a

conversation with another government official, the defense will use such documents to suggest

that his recollection is faulty. In a case where it is already manifest that the memories of many

witnesses conflict regarding many different conversations, it is not fair to foreclose the

possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant

events.



     
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               It is unreasonable for the government to contend that because Mr. Grossman's

"testimony will not be offered to prove the truth of the matter asserted," it is irrelevant whether

his statements are substantively true. (Gov't Br. at 11.) Regardless of the government's limited
               
offer, the defense has a constitutional right to attempt to demonstrate, if it so chooses, that the
               
substance of Mr. Grossman's testimony is incorrect, and that all of his testimony should be

rejected, including his allegation that he spoke to Mr. Libby about Ms. Wilson on a particular

day. The best way to do that would be to show that some part or all of Mr. Grossman's
               
statements were substantively untrue.

               The government responds to the defense contention that bias on the part of Mr.

Grossman deserves to be explored by stating that "loyalty to Mr. Armitage or to the State

Department" would not cause Mr. Grossman to "invent conversations . . . and testify to them 

under oath." (Id. at 14.) Whether the government's statement on this point is true is for the jury

to decide, and there is certainly nothing unusual about a defendant arguing that the personal and

professional allegiances of a witness may result in false or distorted testimony.

               Finally, by arguing that Mr. Grossman's credibility is beyond challenge, the
               
government has once again staked out two hopelessly inconsistent positions. The government

asserts that Mr. Libby was motivated to lie under oath to avoid causing "great embarrassment to

the administration." (Id. at 26.) Yet, at the same time, the government also argues that the

defense should not have the opportunity to determine whether Mr. Grossman might be motivated 

to testify in a manner that would prevent embarrassment to the State Department.

               Ari Fleischer. The government states that it intends to call former White House

press secretary Ari Fleischer to testify about a conversation with Mr. Libby, during which


     
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Ms. Wilson's identity was allegedly discussed. ^4 Again, as with Mr. Grossman, the defense has

the right to challenge this allegation and investigate when and how Mr. Fleischer learned of

Ms. Wilson's employment. The government has admitted that "multiple officials in the White
               
House discussed her employment with reporters prior to (and after) July 14," and the defense has   
               
the right to explore whether any of these other officials may also have discussed Ms. Wilson

with Mr. Fleischer. (Id. at 30, n.10.) In addition, Mr. Fleischer may have learned about Ms.  

Wilson's identity from someone at the State Department or the CIA. The defense therefore
               
needs access to any documents discussing Mr. Wilson, his wife, or his trip to Niger that may be

found in the White House or at other agencies. Such documents are needed to investigate

properly when and how Mr. Fleischer learned that Ms. Wilson worked for the CIA and when and

with whom (other than Mr. Libby) he discussed that fact.

               In our moving brief, the defense pointed to an even more specific reason to

scrutinize the government's proffered version of Mr. Fleischer's testimony. Press accounts

suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after

seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this
               
information to reporters. Yet, the government claims that nothing further is required for Mr.

Fleischer's cross-examination than "a copy of the report in question." (Id. at 12.) In so arguing,

the government is once again attempting to dictate which defenses may be raised and which   

allegations in the indictment may be challenged. Nothing in Rule 16 or the case law of this  

Circuit suggests that the defense should be limited to cross-examining Mr. Fleischer with only

the one report that the government deigns to disclose.



4
    Further reasons why documents pertaining to Mr. Fleischer are material to the defense are set
    forth in the sealed Declaration of Theodore V. Wells, Jr., dated April 12, 2006.


                                                14

   Case 1:05-cr-00394-RBW             Document 82-1         Filed 04/12/2006       Page 18 of 29
  

  
                The government's contention that the report is all the defense needs to cross-

examine Mr. Fleischer is unpersuasive. Other documents, totally unrelated to the report, may

show that Mr. Fleischer learned about Ms. Wilson from someone other than Mr. Libby. Also, 
               
the substance of the report is not as important as what Mr. Fleischer did with or said about the   
               
report. That information is likely reflected in correspondence, notes, or e-mails in Mr.

Fleischer's files, not in the report itself. After reviewing such documents, the defense will be

better equipped to examine Mr. Fleischer about whether he saw the report on Air Force One,
               
whether he recognized that it contained classified information, and whether he communicated its

contents to anyone else.

                Finally, the defense also seeks documents that will shed light on the

Administration's response to criticism from Mr. Wilson. The government questioned Mr. Libby

about this topic at length in the grand jury, and it put it at issue in the indictment and with its

proposed use of the NIE. As the White House press secretary, Mr. Fleischer likely played a key

role in orchestrating and implementing the Administration's strategy for rebutting Mr. Wilson's

claims. Documents from his files ­ or from anywhere in the White House ­ that relate to this
               
subject must be produced pursuant to Rule 16.

                Karl Rove. Senior White House advisor Karl Rove figures prominently in the

government's indictment. He allegedly spoke both to Mr. Novak and Mr. Libby about Ms.

Wilson's affiliation with the CIA. Accordingly, the government's statement that it does not  

presently intend to call Mr. Rove does not diminish his importance in this case.

                The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby's

conversations with Mr. Rove concerning reporters' inquiries about Ms. Wilson, as expressly

discussed in the indictment. (Indictment, Count One, at ¶ 21.) Documents from Mr. Rove's files
    

    

                                                  15

   Case 1:05-cr-00394-RBW              Document 82-1       Filed 04/12/2006       Page 19 of 29
  

  
about the subjects outlined in the indictment are discoverable pursuant to Rule 16 because

without them the defense cannot effectively prepare for Mr. Rove's examination. As discussed

above, Rule 16 compels disclosure of such documents even if Mr. Rove remains a subject of a
               
continuing grand jury investigation.
               
               2.      The Defense Is Entitled to Documents that Will Establish the Proper
                       Context in which To View the Events Described in the Indictment

               Our moving brief explained that the prosecution chose to write a wide-ranging

indictment. The indictment describes in detail the media controversy over the sixteen words in
               
the President's 2003 State of the Union address, refers to the contents of five newspaper and  

magazine articles, and portrays the actions of nine witnesses from various offices of the

Executive Branch, including the White House, the State Department, and the CIA. Because the

indictment's narrative exaggerates the attention that government officials paid to Ms. Wilson's

identity prior to July 14, 2003, it is essential for the defense to correct the government's distorted

version of events.

               The defense intends to show the jury that the controversy over intelligence

failures during the spring and summer of 2003 led certain officials within the White House, the
               
State Department, and the CIA to point fingers at each other. This bureaucratic infighting

provides necessary context for the testimony of witnesses from different government agencies.

In addition, Mr. Libby plans to demonstrate that the indictment is wrong when it suggests that he

and other government officials viewed Ms. Wilson's role in sending her husband to Africa as  

important. We need the requested documents to prepare this crucial aspect of his defense.

               The government, in one of the many instances in which it asks the Court to accept 

the prosecution's view of the case as a basis to deny discovery to the defense, provides a lengthy

and highly misleading version of the evidence regarding the importance that Mr. Libby attached

    
                                                 16

   Case 1:05-cr-00394-RBW            Document 82-1        Filed 04/12/2006        Page 20 of 29
  

  
to Ms. Wilson's CIA employment in June and July 2003. (Gov't Br. at 18-21.) The government

pretends that Mr. Wilson's wife was a part of the response Mr. Libby was instructed to make to

Mr. Wilson's false claims, and even argues that "[d]isclosing the belief that Mr. Wilson's wife
               
sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice
               
President had done so . . ." (Id. at 19.) In fact, as the government is well aware,

contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and

these documents do not include any information about Wilson's wife. Further, the government's

theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr.
               
Libby told any reporter that "Mr. Wilson's wife sent him on the Niger trip." The only reference

to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked

Mr. Libby on July 12, 2003 whether he had heard that Wilson's wife was involved in sending 

him on the trip, and Libby said "he had heard this information too."

               The government's argument that Mr. Libby attached importance to "the

controversy about Mr. Wilson and/or his wife" (id. at 20) cleverly masks the fact that the

evidence on which this argument relies ­ e.g., the involvement of the President and Vice- 

President, the declassification of the NIE, the Vice President's direction that Mr. Libby speak to
               
the press, the rarity of "on the record" statements by Mr. Libby ­ has nothing whatsoever to do

with Mr. Wilson's wife. Mr. Libby must be in a position at trial to show the jury that, consistent

with his grand jury testimony, he responded in good faith on the merits to Mr. Wilson's

allegations, instead of seeking to question his allegiances or motives. For that reason it is vital

that Mr. Libby obtain discovery of the truth regarding Mr. Wilson's allegations, including all

communications by him with the CIA, the State Department, or anyone else concerning those

allegations.

    
                                                 17

   Case 1:05-cr-00394-RBW             Document 82-1           Filed 04/12/2006   Page 21 of 29
  

  
                The government's brief suggests that only the OVP's response to Mr. Wilson is

relevant to the charges in the indictment. But efforts of Mr. Libby and other officials in the OVP

to deflate criticism of the Administration cannot be neatly separated from the actions of officials
               
from other agencies ­ particularly the CIA, the White House, and the State Department. For
               
example, Mr. Libby worked with the CIA and the NSC to determine how to respond to the

controversy over the sixteen words. The indictment itself refers to Mr. Libby's alleged concerns

about how the CIA was responding to the controversy. The indictment also describes actions by

officials at the White House, including senior advisor Karl Rove and former press secretary Ari  
               
Fleischer, who both spoke to reporters about Mr. Wilson. Now, with the government's injection  

of the NIE story into this case, the government has placed even more emphatically at issue the

actions of the White House ­ including President Bush ­ in responding to media criticism about

the 16 words.

                In light of the involvement of high-level officials from these other agencies in

responding to Mr. Wilson's attacks on the Administration, the government cannot meet its  

discovery obligations by focusing solely on the OVP. Moreover, if documents that pertain to the

Administration's media strategy for addressing Mr. Wilson's charges do not mention his wife,
               
the defense will inform the jury of this fact. If, on the other hand, Mr. Wilson's wife was indeed

mentioned in such documents, pursuant to Rule 16 the defense has the right to discover such

information and prepare to avoid it or explain it at trial.

                In response to these arguments, the government turns its back on its expansive

indictment, and argues that the broader factual context the defense intends to develop at trial is

irrelevant because Mr. Libby faces only obstruction charges. These arguments are belied by the

sweeping factual background information included in the indictment. Further, it is telling that in


    

                                                  18

   Case 1:05-cr-00394-RBW            Document 82-1       Filed 04/12/2006       Page 22 of 29

  

its response, the government does not dispute that its indictment encompasses issues far removed
                
from the three conversations with reporters about which Mr. Libby allegedly lied. Instead, the

government argues that Mr. Libby is improperly trying to place the state of mind and conduct of

others at issue. The government maintains that only Mr. Libby's state of mind is relevant, and

argues that documents that Mr. Libby has not seen cannot provide useful context. (Id. at 18.)

                By switching the topic to issues of state of mind and the conduct of others (which

we discussed in subsection II(B)(1) above), the government fails to address our arguments about

context on the merits. The government has effectively conceded the importance of context, but it

refuses to provide the defense with the documents we need to correct the distorted picture found

in the indictment. Rule 16 and basic principles of fairness require that Mr. Libby be granted the

documents he needs to show the jury the true and complete story.

                3.      The Defense Is Entitled to Documents that Will Help Establish that Mr.
                        Libby Had No Motive To Lie

                In our moving brief, the defense explained that we intend to demonstrate at trial

that Mr. Libby had no motive to lie by showing that he did not participate in a campaign to harm

Mr. Wilson and did not cover up efforts by others to do so. The government responds that Mr.   

Libby has not been charged with conspiracy-based offenses. This is true, but beside the point.
               
Jurors understand that people lie to cover up their own misdeeds or the wrongdoing of others.

Mr. Libby is entitled to show jurors that neither motive explains his conduct, which will help

them realize that any misstatements he made are in fact innocent mistakes. Again, the

government is improperly attempting to dictate what defenses are appropriate to present to a  

jury. See Safavian, 233 F.R.D. at 15 (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").


    
                                                19

    Case 1:05-cr-00394-RBW          Document 82-1         Filed 04/12/2006       Page 23 of 29


  
               A key government witness, Matthew Cooper, and another potential witness,

Mr. Wilson, have both contended that Mr. Libby participated in a smear campaign organized by

the White House to punish Mr. Wilson by outing his wife as a CIA agent. This idea has also

been expressed in news articles that were used as grand jury exhibits and that the government

may intend to introduce as trial exhibits. ^5 The government asserts that documents exist that

could be characterized as demonstrating that the White House planned to punish Mr. Wilson, and
                
that the plan involved talking to reporters about Mr. Wilson's wife. (Gov't Br. at 29-30.)

However, the government says that although it has divulged some of those documents to the

defense, it is currently withholding others. Rule 16 entitles the defense to all such documents.

On this critical issue, the defense needs to know everything the government knows, to avoid

getting blindsided with unexpected testimony about such a plot at trial.

               Further, in its response, the government articulates for the first time its own
                
theory of Mr. Libby's purported motive to lie. According to the government, Mr. Libby made

false statements and committed perjury because he knew "there would be great embarrassment to

the administration if it became publicly known that [he] had participated in disseminating

information about Ms. Wilson's CIA employment," and because he "would have had every

reason to assume he would be fired if his true actions became known." (Id. at 26.)
               
               In its response, the government also tells the story regarding the NIE for the first

time. The government asserts that the President through the Vice President authorized the

disclosure of certain portions of the NIE by Mr. Libby to a reporter. According to the


5
    Mike Allen and Dana Priest, Bush Administration Is Focus of Inquiry, WASHINGTON POST,
    Sept. 28, 2003 at A01, attached as Ex. D; Allen and Priest, Probe Focuses on Month Before
    Leak to Reporters; FBI Agents Tracing Linkage of Envoy to CIA Operative, WASHINGTON
    POST, Oct. 12, 2003, attached as Ex. E. See also Matthew Cooper, A War on Wilson,
    Time.com, July 17, 2003, attached as Ex. F.


                                                20

    Case 1:05-cr-00394-RBW           Document 82-1        Filed 04/12/2006       Page 24 of 29


government, these events were "unique in [Mr. Libby's] recollection." (Id. at 20.) Yet, after
               
stating that the highest officials in the Executive Branch took unusual steps to counter Mr.

Wilson's criticism, the prosecution argues that information about such events can be used only to

further its own arguments regarding Mr. Libby's state of mind and that any additional discovery

on these issues is irrelevant. Once again, the prosecution is trying to have it both ways. The

government's discussion of the NIE indicates that at trial all aspects of the government's

response to Mr. Wilson will be relevant ­ including any actions taken by the President. ^6

               To prepare to address the government's arguments about motive and the NIE at

trial, the defense needs additional documents. In particular, the defense needs documents from

all the relevant agencies, including the White House, State Department, and CIA that relate to the

Administration's strategies for countering Mr. Wilson's criticism. Based on the government's

articulated motive theory, the defense is also entitled to investigate the Administration's response
               
to the leak, such as any alleged threats by the President to fire officials who were involved. For

example, if documents indicate that notwithstanding the President's public statements about the

leak investigation, Mr. Libby had no reason to fear losing his job, the defense is entitled to the

production of such documents. That is the essence of Rule 16.

               Finally, the government's arguments about motive further underscore that the

defense is entitled to discovery about whether Ms. Wilson's employment status was classified, as
               
the defense has requested in previous motions. The government resists disclosing information

regarding the allegedly classified status of Ms. Wilson's employment, and the knowledge and

understanding of others as to whether that employment was classified, on the ground that the

 
6
    We emphasize that, consistent with his grand jury testimony, Mr. Libby does not contend  
    that he was instructed to make any disclosures concerning Ms. Wilson by President Bush,
    Vice President Cheney, or anyone else.
    

                                                 21

   Case 1:05-cr-00394-RBW           Document 82-1        Filed 04/12/2006       Page 25 of 29



information is not relevant to the defense. Yet, almost in the same breath, the government

presents an argument on Mr. Libby's motive to lie that makes this information highly relevant

and material to preparation of the defense.

               The government states that it will argue Mr. Libby feared losing his job because

the President "had vowed to fire anyone involved in leaking classified information" (id. at 28),

and because Mr. Libby had requested that the White House Press Secretary say that "Libby was

not the source of the Novak story. And he did not leak classified information." (Id.) Mr. Libby

was not, of course, a source for the Novak story. And he testified to the grand jury
               
unequivocally that he did not understand Ms. Wilson's employment by the CIA to be classified

information. The government's argument puts squarely at issue the credibility of Mr. Libby's

position that he did not leak classified information. The government surely cannot, on the one

hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in

jeopardy of being fired), and on the other hand withhold from the defense information that would

tend to prove her employment status was not classified and that others who knew of that

employment had the same understanding.

III.   Whether Other Agencies Are Aligned With the Prosecution Is Not At Issue In This
       Motion

               The government ends its brief with a plea that "the Court reconsider its holding

that the OVP is `closely aligned' with the prosecution," and further asks that the Court not rule
               
that the White House, NSC and the State Department are similarly aligned. (Id. at 33.)

               The government's first request is both unjustified and procedurally improper. The

Court's ruling that the OVP was aligned with the prosecution was firmly grounded in the

applicable case law, and the decision should stand. If the government wants to challenge the
 
decision, then it should make a procedurally proper motion for reconsideration and allow for full
    
    
    
                                                22

   Case 1:05-cr-00394-RBW            Document 82-1         Filed 04/12/2006       Page 26 of 29


briefing on the issue. It is inappropriate for the government to seek such relief through its

opposition brief to the defense's motion to compel discovery.

               The government's second request is moot as it relates to materials covered by this

motion. In an effort to alleviate any burden on the government and move as swiftly as possible
               
to trial, the defense has agreed to limit its requests for documents to those documents which are

in the Special Counsel's possession or of which the Special Counsel has knowledge. Therefore,

the Court need not consider the issue of alignment.

IV.    The CIA Referral Documents Are Material to the Preparation of the Defense

               Mr. Libby has requested the CIA's criminal referral to the Department of Justice

("DOJ") and all documents referenced or relied upon in preparation of the referral (collectively,

the "referral documents"). The government resists this request on the grounds that the referral

documents bear no relationship to the perjury charges against Mr. Libby, because the author of

the referral will not be a witness and the referral does not summarize statements made by

government witnesses. This is not the appropriate standard for assessing materiality under Rule

16. In arguing that these documents have no relevance to perjury charges, the government once

again ignores the breadth of the indictment brought against Mr. Libby.

               The indictment alleges that Ms. Wilson's employment was classified, and that

disclosure of that fact "had the potential to damage the national security." (Indictment, Count

One at ¶¶ 1(d), (f).) Ms. Wilson's employment status and any damage caused by the disclosure
               
of her identity are thus directly at issue in this case, and the referral documents are a uniquely

valuable source of information about both of these subjects.

               As we argue above, a key component of Mr. Libby's defense is that he had no

motive to lie to either the FBI or the grand jury because he had no reason to believe, before July
 
    
    
    
                                                 23

   Case 1:05-cr-00394-RBW           Document 82-1        Filed 04/12/2006       Page 27 of 29



14, 2003, that Ms. Wilson's employment status was classified. In spite of its importance to the

case, the government has provided the defense no evidence of this purported fact. Based on

published news reports, it appears that the referral documents address this very issue. (See Def.
               
Mot. at 32.)

                The referral documents are likewise material to defense counsel's ability to

prepare for the examination of any CIA official who may offer testimony in support of the

indictment's allegations regarding Ms. Wilson's employment status or harm to national security.

To the extent that the CIA's documents suggest that the DOJ hesitated to begin its investigation

of the disclosure of Ms. Wilson's identity, and that hesitancy was related to the DOJ's
               
uncertainty that any crime had been committed based on the information provided by the CIA,

the defense should have the opportunity to use such information to prepare to cross-examine CIA

witnesses at trial.

                Moreover, the referral documents are relevant to understanding any bias on the

part of the CIA as an institution, which may manifest itself in the testimony of CIA witnesses at

trial. CIA officials have been openly critical of the OVP ­ and indeed, according to the

indictment, Mr. Libby was critical of the CIA as well. In that context, agency and witness bias

are a legitimate concern for the defense. And, to the extent that Director Tenet was involved in
               
the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of

Ms. Wilson's identity, the referral documents would show that the bias against Mr. Libby

reached to the highest levels of the CIA and did not simply represent the complaints of lower-

ranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the

referral process, then the referral documents would be important for preparing to examine him on
 
    
    
    
                                                24 

   Case 1:05-cr-00394-RBW              Document 82-1      Filed 04/12/2006       Page 28 of 29



the issue of bias. To prepare for trial effectively, the defense must have the opportunity to

explore all of these issues further.

                At the very least, the referral documents should be provided to the Court for an in

camera review to determine if Mr. Libby has sufficiently established his need for the documents

and overcome the qualified privileges asserted by the government. See In re Sealed Case, 856

F.2d 268, 272-273 (D.C. Cir. 1988); In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997).
                
Should the Court determine that the documents are in fact privileged, we respectfully request that

the Court make specific findings on this point, which would make the reviewed documents and

findings part of the official record and permit appropriate appellate review, if necessary.



               
                                                 25

   Case 1:05-cr-00394-RBW            Document 82-1       Filed 04/12/2006      Page 29 of 29



                
                                          CONCLUSION

                 For the reasons stated herein, and in our Third Motion to Compel Discovery, the

requests for disclosure of documents and information should be granted.


April 12, 2006                                 Respectfully submitted,
               

/s/ Theodore V. Wells, Jr.                     /s/ William H. Jeffress, Jr.
Theodore V. Wells, Jr.                         William H. Jeffress, Jr.
(DC Bar No. 468934)                            (DC Bar No. 041152)
James L. Brochin                               Alex J. 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                        Tel.: (202) 639-7751
Tel.: (212) 373-3089                           Fax: (202) 585-1087
Fax: (212) 492-0089
    
/s/ Joseph A. Tate                             /s/ John D. Cline
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: (215) 994-2350                            Tel: (415) 626-3939
Fax: (215) 994-2222                            Fax: (415) 875-5700

                

                                                26

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