No Easy Answers


Saturday, May 13, 2006

Fitzgerald Response to Court Re: News Articles [Doc 105]

Ref: Seymour Hersh October 27, 2003 Article in the New Yorker (referred to at page 8 in this filing) is titled The Stovepipe. The URL is http://www.newyorker.com/printables/fact/031027fa_fact. The article contains the following paragraphs:

In late February, the C.I.A. persuaded retired Ambassador Joseph Wilson to fly to Niger to discreetly check out the story of the uranium sale. Wilson, who is now a business consultant, had excellent credentials: he had been deputy chief of mission in Baghdad, had served as a diplomat in Africa, and had worked in the White House for the National Security Council. He was known as an independent diplomat who had put himself in harm's way to help American citizens abroad. ...

Wilson returned to Washington and made his report. It was circulated, he said, but "I heard nothing about what the Vice-President's office thought about it." (In response, Cathie Martin said, "The Vice-President doesn't know Joe Wilson and did not know about his trip until he read about it in the press." The first press accounts appeared fifteen months after Wilson's trip.)

Fitzgerald asserts that the article was annotated by Libby and others in the OVP. The location(s) and contents of the annotations have not been publicly disclosed.




    Case 1:05-cr-00394-RBW              Document 105-1           Filed 05/12/2006         Page 1 of 10



                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

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

     GOVERNMENT'S RESPONSE TO COURT'S INQUIRY REGARDING NEWS
   ARTICLES THE GOVERNMENT INTENDS TO OFFER AS EVIDENCE AT TRIAL


        The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL

COUNSEL, respectfully submits the following in response to the Court's direction, during the May

5, 2006 oral argument on defendant's Third Motion to Compel Discovery, that the government

identify any exhibits consisting of news articles that it anticipates offering in its case in chief at trial. ^1

        As set forth more fully below, the Government currently intends to offer in evidence one news

article in its entirety (a copy of the July 6, 2003, "Op Ed" article by Joseph Wilson bearing

handwritten annotations) subject to a limiting instruction advising the jury that the statements in that

article are not offered for the truth of the matter asserted. The government also intends to offer

several other news articles in redacted form, similarly subject to a limiting instruction. Finally, the

government anticipates that testimony at trial, as well as portions of the defendant's grand jury


         1
            In preparing this response, the government notes that, because many months remain before
 trial, many issues, including issues concerning classified discovery, remain to be decided.
 Moreover, the issues that will be disputed at trial have not been fully framed, and the specific
 arguments of the defense have not been brought into focus to the extent that they will be following
 opening statements. In addition, the government has not received any defense discovery to date.
 As a result, the government's description of its intentions regarding the offering of news articles
 necessarily is tentative, but the government sets forth its intentions as accurately as it can in good
 faith at this time.



    Case 1:05-cr-00394-RBW            Document 105-1         Filed 05/12/2006        Page 2 of 10



testimony to be offered in evidence, may refer to certain other news articles; however, the

government does not intend to offer those articles in evidence even in redacted form.

The Wilson "Op Ed" Article

       The Government intends to offer as evidence in its case in chief a copy of the July 6, 2003,

New York Times "Op Ed" article authored by former Ambassador Joseph Wilson (the "Wilson Op

Ed"), and bearing handwritten annotations by the Vice President. A copy of the annotated Wilson

Op Ed is annexed to this response as Exhibit A.

       The annotated Wilson Op Ed is relevant and admissible for two principal reasons. First, the

article itself lies at the center of the sequence of events leading to the defendant's alleged criminal

conduct. The article, and the fact that it contained certain criticisms of the administration, including

criticisms regarding issues dealt with by the Office of the Vice President ("OVP"), serve both to

explain the context of, and provide a motive for, many of the defendant's statements and actions at

issue in this case. In particular, admission of the Wilson Op Ed is necessary to assist jurors in

understanding how, beginning on July 6, 2003, and continuing through the following week, the

attention of the defendant, his colleagues, and the media was heavily focused on responding to the

issues raised in that article. Although the substance of the Wilson Op Ed is relevant and admissible

to establish the issues to which the defendant and others with whom he worked believed a response

was required, and to provide context for the defendant's statements and actions, the government will

propose an instruction to the jury that the statements made in the Wilson Op Ed may not be

considered as proof of the truth of the matters asserted but, rather, may be considered solely as

evidence that the statements in the article were made and published, and may have caused others to

take action in response.


                                                   2



    Case 1:05-cr-00394-RBW            Document 105-1        Filed 05/12/2006       Page 3 of 10



       The second principal reason for the admissibility of the annotated Wilson Op Ed lies in the

annotations placed on a copy of the article by the defendant's immediate superior, the Vice President.

Those annotations support the proposition that publication of the Wilson Op Ed acutely focused the

attention of the Vice President and the defendant ­ his chief of staff ­ on Mr. Wilson, on the

assertions made in his article, and on responding to those assertions. The annotated version of the

article reflects the contemporaneous reaction of the Vice President to Mr. Wilson's Op Ed article, and

thus is relevant to establishing some of the facts that were viewed as important by the defendant's

immediate superior, including whether Mr. Wilson's wife had "sen[t] him on a junket."

News Articles to be Offered in Redacted Form

       The Government also intends to adduce proof concerning certain other news articles, which

it will seek to offer in redacted form, including the following:

               - May 6, 2003, New York Times article by Nicholas Kristof;

               - June 12, 2003, Washington Post article by Walter Pincus;

               - June 30, 2003, New Republic article by John B. Judis and Spencer Ackerman;

               - July 14, 2003, Chicago Sun Times column by Robert Novak; and

               - July 17, 2003, Time.com article by Matthew Cooper and others.

(Copies of these articles are annexed hereto as Exhibits B through F.) The relevance of each of these

articles is briefly outlined below. Prior to trial, the government will submit proposed redacted

versions of each article.

       The May 6, 2003 article by Mr. Kristof is relevant to establish when press reporting relating

to Mr. Wilson's trip began, although the article did not refer to Mr. Wilson by name. The Kristof

article caused inquiry to be made within the OVP, and eventually by the defendant, about Mr.


                                                  3



    Case 1:05-cr-00394-RBW           Document 105-1         Filed 05/12/2006      Page 4 of 10



Wilson's trip, and this led to relevant conversations between the defendant and other witnesses,

including Marc Grossman (then Under Secretary of State for Political Affairs), certain CIA officials,

and other persons in the OVP, during which the defendant was advised of the CIA employment of

Mr. Wilson's wife. The article thus provides context for the evidence of conversations concerning

Mr. Wilson's wife about which the defendant is alleged to have made false statements and provided

false testimony.

       The June 12, 2003, Washington Post article by Mr. Pincus (to whom both Mr. Wilson and the

defendant spoke prior to publication of the article) is relevant because Mr. Pincus' questions to the

OVP sparked discussion within the OVP, including conversations between the defendant and the

Vice President regarding how Mr. Pincus' questions should be answered.             It was during a

conversation concerning Mr. Pincus' inquiries that the Vice President advised the defendant that Mr.

Wilson's wife worked at the CIA. (To be clear, the government does not contend that the defendant

disclosed the employment of Ms. Plame to Mr. Pincus, and Mr. Pincus's article contains no reference

to her or her employment.) The article by Mr. Pincus thus explains the context in which the

defendant discussed Mr. Wilson's wife's employment with the Vice President. The article also

served to increase media attention concerning the then-unnamed ambassador's trip and further

motivated the defendant to counter Mr. Wilson's assertions, making it more likely that the

defendant's disclosures to the press concerning Mr. Wilson's wife were not casual disclosures that

he had forgotten by the time he was asked about them by the Federal Bureau of Investigation and

before the grand jury.

       The June 2003 New Republic article is relevant because it caused the defendant to speak with

Ambassador Eric Edelman (who had just left his position as defendant's Principal Deputy) in late


                                                 4



    Case 1:05-cr-00394-RBW            Document 105-1         Filed 05/12/2006       Page 5 of 10



June 2003 and discuss the fact that they could not talk about the former ambassador's trip because

of "complications" at the CIA which could not be further discussed on an open telephone line.

Additionally, like the June 12, 2003, article by Mr. Pincus, this article increased media attention

concerning Mr. Wilson's trip and further motivated the defendant to counter Mr. Wilson's assertions,

making it more likely that the defendant's disclosures to the press concerning Mr. Wilson's wife were

not casual disclosures that he had forgotten by the time he was asked about them by the Federal

Bureau of Investigation and before the grand jury. Only two paragraphs of the lengthy article address

Ambassador Wilson's trip, and thus the government anticipates proposing a heavily redacted version

of the article, perhaps limited to those two paragraphs.

       The July 14 Chicago Sun Times column by Mr. Novak is relevant because on the day the

article was published, a CIA official was asked in the defendant's presence, by another person in the

OVP, whether that CIA official had read that column. (The CIA official had not.) At some time

thereafter, as discussed briefly at the March 5 oral argument, the CIA official discussed in the

defendant's presence the dangers posed by disclosure of the CIA affiliation of one of its employees

as had occurred in the Novak column. This evidence directly contradicts the defense position that

the defendant had no motive to lie because at the time of his interview and testimony the defendant

thought that neither he nor anyone else had done anything wrong. Moreover, the evidence rebuts the

defense assertion that the defendant could have easily forgotten his conversations with reporters

Cooper and Miller on July 12 if he learned of the potential consequences of such disclosure as a result

of the publication of the Novak column on July 14. Instead, the evidence about the conversation

concerning the Novak column provides a strong motive for the defendant to provide false information

and testimony about his disclosures to reporters. In addition, there will be evidence that the


                                                  5



    Case 1:05-cr-00394-RBW            Document 105-1         Filed 05/12/2006       Page 6 of 10



defendant discussed aspects of the Novak article at other relevant times after July 14 but prior to his

FBI interview and grand jury testimony.

       The July 17, 2003, article on Time.com by Mr. Cooper and others is relevant because it

contains a statement that:

       Some government officials, noting that Wilson's wife, Valerie Plame, is a CIA official who
       monitors the proliferation of weapons of mass destruction, intimate that she was involved in
       his being dispatched Niger [sic] to investigate reports that Saddam Hussein's government had
       sought to purchase large quantities of uranium ore, sometimes referred to as yellow cake, for
       the purposes of building nuclear devices.

The article also reflects an "on the record" quote by the defendant regarding the Vice President's lack

of knowledge of Mr. Wilson's trip until "it became public in the last month or so." The evidence will

show that an earlier Time magazine article published on July 14, 2003, only contained part of

defendant's quote. After the OVP contacted Time magazine to complain that the defendant's full "on

the record" quote was not contained in the article, Time published the fuller version of the quote in

the July 17, 2003, online column. The statements to Mr. Cooper ­ an exceedingly rare "on the

record" comment by the defendant ­ as well as OVP's desire to correct the article to include the full

quote, are relevant to demonstrating the attention paid to the defendant's statements to Mr. Cooper.

The effort to include the defendant's full quote, while at the same time offering no dispute as to the

characterization of anonymous government officials concerning Ms. Plame, is important because the

Cooper article asserts that government officials had intimated that Ms. Plame was involved in sending

Mr. Wilson on the trip. The defendant testified to the contrary ­ that he did not think that Ms. Plame

played any role in sending Mr. Wilson on the trip prior to reading the Novak article. The defendant

testified that he thought Mr. Wilson to be fully qualified for what he did. The defendant's grand jury

testimony indicates that he did not express any belief to Mr. Cooper on July 12 that Mr. Wilson was


                                                  6



    Case 1:05-cr-00394-RBW           Document 105-1         Filed 05/12/2006      Page 7 of 10



sent on the trip because of his wife and had not thought about that possibility until he read Novak's

July 14 column. Rather, the defendant claims that he told reporters that he was not sure Mr. Wilson

even had a wife. Mr. Cooper, to the contrary, testified that the defendant had advised him on July

12 that the defendant had heard that Mr. Wilson's wife was involved in sending Mr. Wilson on the

trip to Niger. (This conflict in testimony heightens the relevance of the annotations on Exhibit A

concerning whether Mr. Wilson's wife had sent him on a "junket.") Whether the defendant lied about

his conversation with Mr. Cooper is a core issue in the case. As with the New Republic article, the

government anticipates offering a heavily redacted version of the online article, perhaps limited to

the defendant's on-the-record quote and the discussion of Ms. Plame.

Articles About Which the Government Expects to Offer Evidence, but Which the Government Does
Not Presently Expect to Offer in Evidence Themselves

       In addition to the Wilson Op Ed and the articles described above that the government

anticipates offering in redacted form, the government expects its evidence in its case-in-chief to

include testimony referring to several additional news articles, as well as passages from the

defendant's grand jury testimony that will refer to certain news articles.

       Two of these news articles are associated with the Wilson Op Ed. The government expects

that witness testimony and portions of the defendant's grand jury testimony will contain references

to the fact that an article concerning Mr. Wilson was published in the Washington Post on July 6,

2003 (the same day that the Wilson Op Ed appeared in the New York Times), and that Mr. Wilson

appeared on Meet the Press on that same day and made statements during that appearance consistent

with those made in the Wilson Op Ed. While the government intends to make reference to the

Washington Post article and the Meet the Press appearance as proof of the level of attention being

paid to Mr. Wilson, and the level of attention being paid by the defendant and others to responding

                                                  7



    Case 1:05-cr-00394-RBW            Document 105-1        Filed 05/12/2006       Page 8 of 10



to Mr. Wilson at that time, the government does not intend to offer the text of the Washington Post

article or the transcript of Mr. Wilson's Meet the Press appearance, or otherwise to describe any

specific statements contained in either of them.

       In addition, the government's evidence at trial (including the defendant's grand jury

transcript) will refer to a July 17, 2003, Wall Street Journal editorial entitled "Yellowcake Remix,"

which contained quotations from the 2002 National Intelligence Estimate ("NIE"). This editorial

resulted from the defendant's transmittal, through another government official, of a copy of portions

of the NIE to the Wall Street Journal shortly before the editorial was published. This evidence is

relevant to establish that during the relevant time frame in July 2003, the defendant, notwithstanding

other pressing government business, was heavily focused on shaping media coverage of the

controversy concerning Iraqi efforts to obtain uranium from Niger. The government does not intend

to offer in evidence a copy of the editorial itself, and will not contend that the defendant's actions

in this regard were criminal or otherwise unauthorized.

       Finally, the government notes in the interest of completeness that it may offer annotated

copies of an October 2003 article by Seymour Hersh in The New Yorker if it appears that the

defendant will pursue the defense that he was too focused on other urgent national security matters

to remember accurately what took place during his conversations with reporters. The government

received from the OVP multiple copies of the same article bearing handwritten annotations,

apparently by the defendant and others in his office. However, it is not the government's present

intention to offer those annotated copies.

       In conclusion, the government wishes to emphasize that with respect to each of the above

articles other than the annotated version of the Wilson Op Ed, the government is willing to consider


                                                   8



    Case 1:05-cr-00394-RBW             Document 105-1          Filed 05/12/2006       Page 9 of 10



offering any appropriate redactions, or alternatively a stipulated summary of the relevant assertions

in the article, and will also agree to an instruction that the articles are not offered to prove the truth

of the matters asserted in the articles, but instead are offered to prove that the statements were made

and published and to explain any actions the defendant took in response.

                                                        Respectfully submitted,



                                                                   /s/
                                                        PATRICK J. FITZGERALD
                                                        Special Counsel
                                                        Office of the United States Attorney
                                                        Northern District of Illinois
                                                        219 South Dearborn Street
                                                        Chicago, Illinois 60604
                                                        (312) 353-5300

Dated: May 12, 2006




                                                    9



   Case 1:05-cr-00394-RBW            Document 105-1         Filed 05/12/2006       Page 10 of 10



                                  CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 12th day of May, 2006, I caused true and correct
copies of the foregoing to be served on the following parties by electronic mail:


                            William Jeffress, Esq.
                            Baker Botts
                            The Warner
                            1299 Pennsylvania Avenue, N.W.
                            Washington, DC 20004-2400
                            Facsimile: 202-585-1087

                            Theodore V. Wells, Esq.
                            Paul Weiss
                            1285 Avenue of the Americas
                            New York, NY 10019-6064
                            Facsimile: 212-373-2217

                            Joseph A. Tate, Esq.
                            Dechert LLP
                            4000 Bell Atlantic Tower
                            1717 Arch Street
                            Philadelphia, PA 19103-2793
                            Facsimile: 215-994-2222

                            John D. Cline, Esq.
                            Jones Day
                            555 California Street
                            San Francisco, CA 94104
                            Facsimile: 415-875-5700

                                                       Respectfully submitted,

                                                                      /s/
                                                       PATRICK J. FITZGERALD
                                                       Special Counsel
                                                       Office of the United States Attorney
                                                       Northern District of Illinois
                                                       219 South Dearborn Street, 5th Floor
                                                       Chicago, Illinois 60604




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