No Easy Answers

 Case 1:05-cr-00394-RBW           Document 100        Filed 05/01/2006      Page 1 of 9



                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


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

   RESPONSE OF I. LEWIS LIBBY TO GOVERNMENT'S MOTION FOR
RECONSIDERATION OF THE OPINION OF APRIL 5, 2006 CONCERNING EX
          PARTE SUBMISSIONS UNDER CIPA SECTION 4

         The Court should reject the government's attempt to overturn a key element of the

April 5 Order on Mr. Libby's motion to bar ex parte submissions under CIPA § 4.1

Although cast in part as a request for "clarification," the government motion

unmistakably asks the Court to reconsider and reverse its balanced approach to classified

discovery under CIPA. The motion, however, does not come close to satisfying (nor

does it even mention) the strict standards that govern reconsideration in a criminal case.

The April 5 Order properly safeguards both Mr. Libby's right to a fair trial and the

government's need to protect classified information. It follows the plain language of

CIPA § 4. The Court should deny the government's motion.




1
    Motion for Clarification of the Opinion of April 5, 2006 Concerning Ex Parte
    Submissions Under CIPA Section 4, Or in the Alternative, Motion for
    Reconsideration (filed Apr. 17, 2006) ["Motion"].

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                                       ARGUMENT

I.       THE GOVERNMENT'S MOTION IS FOR RECONSIDERATION,
         NOT CLARIFICATION.

         The government purports to seek "clarification" that the Court did not intend its

April 5 Order to preclude the government from making ex parte materiality arguments

under Fed. R. Crim. P. 16(d)(1). Motion at 5-9. But the Court expressly considered Rule

16 in its Order.2 It did so in response to the government's argument, in its opposition to

Mr. Libby's motion, that Rule 16 "creates a mechanism for a district court to make an ex

parte, in camera inspection of materials in support of denying or restricting discovery"--

the very argument the government makes here.3 The Court left no doubt that its ruling

barring ex parte materiality arguments encompasses Rule 16 as well as CIPA § 4. It

would be astonishing, and inconsistent with the Order's "detailed analysis" (Motion at 1),

if the Court had expressly barred ex parte materiality arguments under CIPA § 4 while

implicitly allowing such arguments under Rule 16(d). That would render the Court's

discussion of CIPA § 4 meaningless dictum.

         It would be equally bizarre if Rule 16(d) gave the government more protections in

addressing classified discovery than CIPA § 4, which Congress drafted specifically for

that purpose. The government effectively concedes this point; it argues that Congress

intended CIPA § 4 to "incorporate, and add to" Rule 16(d). Motion at 11. The Court

similarly observed that Congress intended § 4 "'to clarify the court's powers under Fed. R.


2
     E.g., United States v. Libby, 2006 U.S. Dist. LEXIS 15811, at *4, *7 (D.D.C. Apr. 5,
     2006).
3
     Government's Response to Defendant's Motion to Bar Ex Parte Submissions Under
     CIPA Section 4 Without a Particularized Showing of Exceptional Circumstances at 4-
     5 (filed March 10, 2006).
                                              2

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Crim. P. 16(d)(1) to deny or restrict discovery in order to protect national security.'"

United States v. Libby, 2006 U.S. Dist. LEXIS 15811, at *7 (D.D.C. Apr. 5, 2006)

(quoting United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988)). Because CIPA

§ 4 affords at least as much protection for classified information (more, according to the

government) as Rule 16(d)(1), the Court's discussion of CIPA § 4 necessarily subsumes

Rule 16(d)(1).4

         Far from seeking "clarification" of the Court's ruling--which could not be more

clear--the government asks the Court to reconsider its April 5 Order and reverse itself.

To obtain reconsideration, however, the government must satisfy a stringent standard,

which it ignores. Federal courts grant motions for reconsideration in criminal cases only

on three narrow grounds: "an intervening change in controlling law, availability of new

evidence, or the need to correct clear error or prevent manifest injustice." United States

v. Sims, 252 F. Supp. 2d 1255, 1260 (D.N.M. 2003), aff'd in part, rev'd in part on other

grounds, 428 F.3d 945 (10th Cir. 2005); see, e.g., United States v. D'Armond, 80 F. Supp.

2d 1157, 1170 (D. Kan. 1999).5




4
    The Court's discussion of ex parte submissions at the February 24 hearing and in its
    February 27 Order (cited at Motion at 2-3) has nothing to do with the issues here.
    The Court was not addressing classified information in its February rulings, and it did
    not address the propriety of ex parte arguments about materiality. The discussion
    arose in connection with the government's offer to furnish the Court ex parte with the
    documents it had and had not produced to the defense concerning reporters with
    potential knowledge of Ms. Wilson's employment. E.g., Tr. 2/24/06 at 38, 40-42.
    The February rulings do not undercut or render unclear the Court's April 5 Order.
5
    This is the same standard as a motion to reconsider in civil cases under Fed. R. Civ.
    P. 59(e). See Sims, 252 F. Supp. 2d at 1260. This Court and the District of Columbia
    Circuit have repeatedly applied the standard set forth above in considering Rule 59(e)
    motions. See, e.g., Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006); Fox v.
    American Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004); Niedermeier v. Office

                                             3

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         In ruling on a motion for reconsideration, a district court has a "compelling

interest in the finality of judgments which should not lightly be disregarded." United

States v. Shi, 396 F. Supp. 2d 1132, 1137 (D. Haw. 2003) (quotation omitted). Because

of this "compelling interest" in finality, a motion for reconsideration "is not a second

chance for the losing party to make its strongest case or to dress up arguments that

previously failed. . . . In other words, such motions are not appropriate if the movant's

only purpose is to have the reviewing court revisit issues already addressed or to hear

new arguments or supporting facts that could have been presented originally." Sims, 252

F. Supp. 2d at 1261 (quotations omitted); see, e.g., D'Armond, 80 F. Supp. 2d at 1170

(same). Thus, the Court should not grant a motion to reconsider "where the moving party

simply seeks to have the Court rethink what the Court has already thought through--

rightly or wrongly." United States v. Torain, 77 F. Supp.2d 749, 751 (S.D.W. Va. 1999)

(brackets and quotation omitted).6

         The government does not cite any change in controlling law or identify any

previously unavailable evidence. Thus, the Court should only reconsider the April 5

Order if necessary "to correct clear error or prevent manifest injustice." Sims, 252 F.

Supp. 2d at 1260. As we demonstrate in the next part, the government cannot satisfy that

standard.




    of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001); State of New York v. United States,
    880 F. Supp. 37, 38 (D.D.C. 1995).
6
    Whether to grant a motion for reconsideration, of course, "is committed to the
    reviewing court's sound discretion." Sims, 252 F. Supp. 2d at 1261; see, e.g., United
    States v. Rezaq, 899 F. Supp. 697, 701 (D.D.C. 1995). But the Court's exercise of
    discretion should be guided by the standards described in text.

                                              4

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II.      THE GOVERNMENT DOES NOT MEET THE STANDARD FOR
         RECONSIDERATION OF ITS APRIL 5 ORDER.

         Although the Court concluded in the April 5 Order that Rule 16(d) and CIPA § 4

authorize ex parte filings under certain circumstances, it held unequivocally that the

government cannot argue questions of materiality ex parte. Those issues instead must be

litigated in a separate adversarial hearing. See Libby, 2006 U.S. Dist. LEXIS 15811, at

*11, *24. This portion of the Order contains no error, clear or otherwise, and it certainly

works no "manifest injustice." Even the government concedes that the language of CIPA

§ 4 on which the Court relied "could justify reading that section to apply only after the

documents at issue are deemed discoverable." Motion at 9. The government's motion for

reconsideration seeks merely to "dress up arguments that previously failed" and to have

this Court "revisit issues already addressed." Sims, 252 F. Supp. 2d at 1261 (quotation

omitted).

         The government insists that it cannot argue materiality without discussing (and

disclosing to the defense) the very details about the classified information that it wishes

to withhold. Motion at 1, 5, 8, 13. But this argument is patently wrong, as the Court

demonstrated in the April 5 Order. The government has managed to argue in an

adversarial (and even public) setting the materiality of the discovery Mr. Libby sought in

his first two motions to compel. See Libby, 2006 U.S. Dist. LEXIS 15811, at *11. One

of these motions involved the President's Daily Brief, which the government claims is

among the nation's most sensitive intelligence documents. If the government can argue

the materiality of the PDB in an adversarial proceeding, it can surely do so with other

classified documents. Similarly, the government apparently made its first CIPA § 4

submission without arguing materiality. See id. at *11 n.7.

                                              5

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         The April 5 Order allows the government ample opportunity, without

jeopardizing national security, to argue that even the most sensitive intelligence

documents are non-material. The government can (1) address materiality, in a closed

proceeding if necessary, at a level of generality that does not disclose extremely sensitive

details, as it did with respect to Mr. Libby's previous motions to compel, (2) submit

disputed documents for ex parte review, and (3) on a sufficient showing, see id. at *19,

provide the Court with a written, ex parte justification for its contention that a particular

redaction or substitution is necessary. These protections strike a reasonable balance

between the "defendant's right to receive a fair trial and the government's need to protect

classified information." Id. at *10.

         In balancing these competing interests, the Court fashioned procedures under

CIPA § 4 and Rule 16(d) that greatly limit Mr. Libby's participation in two stages of the

classified discovery litigation: (1) Mr. Libby may not litigate whether the government has

established that circumstances exist which justify an ex parte § 4 filing; and (2) on a

sufficient showing, the government may include in its ex parte § 4 filings justification for

its proposed substitutions or redactions. Libby, 2006 U.S. Dist. LEXIS 15811, at *18.

The Court, therefore, struck a balance in favor of the government's need to protect

classified information in these respects on one hand, and in favor of protecting Mr.

Libby's right to a fair trial on the other hand by allowing him to litigate the threshold

question of materiality, as CIPA § 4 plainly contemplates. Far from presenting a "clear

error" or a "manifest injustice," the Court's Order reflects a thoughtful and creative

solution to the clash of competing interests.




                                                6

 Case 1:05-cr-00394-RBW             Document 100        Filed 05/01/2006          Page 7 of 9



         The government's motion cites a number of cases. The government cited virtually

the identical cases, in support of the same argument, in its opposition to Mr. Libby's

initial motion. Mr. Libby distinguished many of those cases in his reply, and the Court

undoubtedly considered them in rendering its April 5 decision. Most of the cases involve

ex parte submissions of the disputed documents, which we do not oppose. None of the

cases purports to require that the Court accept ex parte submissions on materiality under

CIPA § 4 or Rule 16(d)(1). The cases are no more persuasive on this point now than they

were the first time the government cited them. The government merely seeks to have the

Court "revisit issues already addressed," Sims, 252 F. Supp. 2d at 1261, and "rethink what

the Court has already thought through," Torain, 77 F. Supp. 2d at 751 (brackets and

quotation omitted).

         One of the few new cases the government cites--United States v. Carmichael, 232

F.3d 510 (6th Cir. 2000)--highlights the inherent problems with ex parte proceedings.

The government cites Carmichael for the proposition that "courts have repeatedly

evaluated the discoverability of information based on the government's ex parte

presentation under Rule 16(d) where the defendant does not know the specific nature of

the evidence proposed to be withheld." Motion at 6. The government asserts that the

Sixth Circuit found no error where the prosecutor informed the court ex parte that a

cooperating witness had been intercepted in an ongoing wiretap. It overlooks, however,

that the ruling rested almost entirely on the defendant's failure to object at trial.

Carmichael does not even mention Rule 16(d), and the court specifically notes that

                  [a]s a general rule of thumb, in all but the most exceptional
                  circumstances, ex parte communications with the court are
                  an extraordinarily bad idea. This court has not concealed
                  its strong disapproval of ex parte approaches in criminal

                                                7

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                  cases, reasoning that giving the government private access
                  to the ear of the court is not only a gross breach of the
                  appearance of justice, but also a dangerous procedure.

Carmichael, 232 F.3d at 517 (quotations omitted); see id. at 523-28 (Keith, J., dissenting)

(contending that the ex parte contacts required reversal even without a defense objection).

Carmichael thus cuts squarely against the government's position. Permitting the

government to argue the materiality of discovery ex parte would be both a "gross breach

of the appearance of justice" and "a dangerous procedure." Neither Carmichael nor any

other authority the government cites warrants reconsideration of the April 5 Order.




                                               8

 Case 1:05-cr-00394-RBW            Document 100         Filed 05/01/2006      Page 9 of 9



                                           CONCLUSION

         The Court's decision to bar ex parte materiality arguments is correct, in light of

the plain language of CIPA § 4 and for the additional reasons stated in the April 5 Order

and in Mr. Libby's initial motion and reply. The government has failed to show a "clear

error" or a "manifest injustice"; it merely seeks to reargue a position the Court has

already rejected. The Court should deny the government's motion.




May 1, 2006                                    Respectfully submitted,


______________/s/__________________                _____________/s/___________________
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/________________                _________________/s/_______________
Joseph A. Tate                                     John D. Cline
Dechert LLP                                        (D.C. Bar No. 403824)
2929 Arch Street                                   K.C. Maxwell (Pro Hac Vice)
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Philadelphia, PA 19104                             555 California Street, 26th Floor
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posted by cboldt  # 5/01/2006 07:17:00 PM