No Easy Answers

Case 1:05-cr-00394-RBW          Document 108   Filed 05/19/2006      Page 1 of 10



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




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

May 19, 2006

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               Defendant I. Lewis Libby, through his counsel, submits this Response to the

Government's Response to Court's Inquiry Regarding News Articles the Government Intends

to Offer as Evidence at Trial, which was filed on May 12, 2006 (the "Government

Response").

                                 FACTUAL BACKGROUND

               At the May 5 hearing on Mr. Libby's Third Motion to Compel Discovery, the

Court heard oral argument on Mr. Libby's request for documents generated or received by

government officials concerning former Ambassador Joseph Wilson's trip to Niger and/or his

wife's role in planning the trip. During the oral argument, the defense urged the Court to

grant at least the part of the motion that requested documents generated or received by

government officials after the publication of Nicholas Kristof's May 6, 2003 New York Times

editorial, which was based in part on an interview of Mr. Wilson about his purported

findings.1 Defense counsel explained that these documents were critical to the preparation of

the defense because they were necessary to prepare to examine key government and defense

witnesses, and because they would help put the facts of the case in proper context for the jury.

               Defense counsel argued that much of the case would involve how Mr. Libby

and other government officials, including the government's witnesses, responded to the

allegations raised in Mr. Kristof's column, Mr. Wilson's July 6 op-ed in the New York Times,

and other articles. The controversial allegations by Mr. Kristof and Mr. Wilson related to

why Mr. Wilson was sent on his trip, what he purportedly learned in Niger, and who received

a report of his findings upon his return. As the government now acknowledges in its

1
    Specifically, request A(1)(c) in Mr. Libby's motion called for documents reflecting
    "subsequent discussion, comment or analysis concerning the trip, including government
    documents concerning the trip and/or Ms. Wilson's role in it that were generated after
    May 6, 2003, when the controversy surrounding the disputed sixteen words erupted."

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Response, how Mr. Libby and other government officials reacted to such articles will be

significant issues at trial for both the government and the defense.

               The government wants to show that Mr. Libby placed critical importance on

responding to Mr. Wilson's allegations about what he learned on his trip and who received his

findings. The government further wants to show that the role Valerie Wilson played in

planning the trip was of great significance to Mr. Libby. Consequently, the government will

argue, Mr. Libby would never have forgotten how and what he learned about Ms. Wilson's

identity, and therefore he must have lied to the grand jury about these subjects.

               In contrast, the defense wants to show how Mr. Libby and other officials with

whom he worked, including officials in the White House, the State Department and the CIA,

responded to criticism in the media ­ particularly the Kristof and Wilson articles. Mr. Libby

intends to show that he was involved in responding to the allegations in these articles by

addressing the substance of Mr. Wilson's assertions about what he learned on his trip to

Niger, and that the role of Mr. Wilson's wife, at least from Mr. Libby's perspective, was a

relatively peripheral issue. When Mr. Libby's response to Mr. Wilson's accusations is placed

in its full context, it will be both understandable and believable that Mr. Libby may be

confused about how and from whom he learned information about Mr. Wilson's wife.

               In addition, Mr. Libby wants to show that the government's witnesses were

also involved in responding to the allegations in news articles, and that their recollections

about their conversations with Mr. Libby and others on this issue may be inaccurate or

confused. Moreover, some of those witnesses may be biased against Mr. Libby as a result of

the fierce bureaucratic infighting and finger pointing among officials at the White House, the

State Department and the CIA that occurred in the spring and summer of 2003. Indeed, in a




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recent filing, the government conceded that this infighting had occurred, and even stated that

such strife is alleged in the indictment. This admission underscores that the defense is entitled

to discovery that will shed light on potential witness bias.

                It was in the context of discussing the central importance of how witnesses

responded to various news articles that defense counsel requested the Court to direct the

government to produce the news articles that the government intends to introduce into

evidence. In its Response, the government identified six news articles that it intends to offer

in its case in chief, two articles and a transcript to which it plans to refer at trial, and one

additional article that it may seek to offer as evidence. The government also provided

arguments about why it believes those documents are admissible, and about how it plans to

use them to bolster certain arguments about Mr. Libby's alleged culpability, motives and state

of mind.

                                           ARGUMENT

                 The Government's Response proves that the documents the defense has

requested are material to the preparation of the defense and should be produced. The

government now asserts that it seeks to offer evidence about "the level of attention being paid

by the defendant and others to responding to Mr. Wilson." Gov't Resp. at 7-8 (emphasis

added). We agree with the government that how Mr. Libby and others responded to Mr.

Wilson is relevant to this case.

                To take one example from the Government's Response, the prosecution wants

to introduce a copy of Mr. Wilson's July 6 op-ed that includes notations written by the Vice

President, even though it is aware that Mr. Libby testified before the grand jury that he did not

see this document until it was shown to him by the FBI in November 2003. On his first day

of grand jury testimony, when asked if he recalled discussing this particular document with


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the Vice President, Mr. Libby testified: "I don't recall that . . . I subsequently learned that he

had such an article from the FBI agents who talked to me." Mar. 5, 2004 Grand Jury Tr. at

82. During Mr. Libby's second appearance before the grand jury, the Special Counsel asked

him: "[W]hy don't I show you the copy of the July 6th column with some handwriting on it.

And I believe we showed this document to you the last time, or at least discussed it, and you

indicated that you had not seen this copy of the article with the handwriting until the FBI

showed it to you?" Mar. 24, 2004 Grand Jury Tr. at 86. Mr. Libby responded: "That's my

recollection, sir." Id.

                Yet, despite such clear testimony, the government asserts that the Vice

President's notations are relevant to the charges against Mr. Libby and that this document is

admissible.2 The government argues that those notations

                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 "sent him on a
                junket."

Gov't Resp. at 3.

                The government evidently wants to argue to the jury that "facts that were

viewed as important" by the Vice President would have been important to Mr. Libby too, and

that the Vice President's notations can be used to show what Mr. Libby focused on during

July 2003. These arguments are tantamount to an acknowledgement that the state of mind of

2
    It is unclear to the defense how the government intends to authenticate this document
    given that it has previously represented that it does not intend to call the Vice President as
    a witness.


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witnesses other than Mr. Libby will be important at trial ­ precisely what Mr. Libby has been

arguing in the pending motion. Documents reflecting the administration's response to Mr.

Wilson's claims about what he learned during his trip and to whom his report was sent are

discoverable, whether Mr. Libby has previously seen them or not.

               In the same way that the government finds the views of the Vice President

regarding Mr. Wilson and his trip relevant to its case, the defense finds the views of other

government officials, such as former Under Secretary of State Marc Grossman, regarding Ms.

Wilson relevant to its case. Such information is certainly material to the preparation of the

defense, regardless of whether it is ultimately admissible. Just as Mr. Libby was interacting

with the Vice President regarding Mr. Wilson's charges, so was he also interacting with Mr.

Grossman and other government officials and their respective agencies. The defense is

entitled, for the purpose of preparing its cross examination of such witnesses, to discover what

and when they learned about Mr. Wilson's trip; whether they were involved in the subsequent

finger pointing among government agencies that resulted from Mr. Wilson's allegations; how

they learned Ms. Wilson worked at the CIA; whether they thought her employment status was

classified; and whether they discussed Ms. Wilson's affiliation with the CIA with officials

other than Mr. Libby. The defense needs these documents to prepare to examine witnesses

such as Mr. Grossman about such issues.

               The government may also wish to argue that because the Vice President wrote

down certain information about Mr. Wilson's wife, it is more likely that the Vice President

communicated that information to Mr. Libby. By that logic, however, Mr. Libby is entitled to

any documents that mention Ms. Wilson that are contained in the files of other government

officials with whom Mr. Libby worked and communicated on this issue. Again, at this




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juncture we are asking only for discovery materials to help us prepare for the cross

examination of key witnesses; admissibility at trial is not a prerequisite to production for

discovery purposes.

               The position regarding the relevance of documents the government has

belatedly adopted in its Response is the position that the defense has urged all along, and it is

certainly the correct one for discovery purposes. The documents we seek will be used to

show the context in which Mr. Libby and other witnesses discussed Mr. Wilson's allegations

or related claims, to demonstrate the state of mind of Mr. Libby and others, to illuminate

possible witness bias, to corroborate Mr. Libby's description of the events, and possibly to

impeach witnesses through prior statements they wrote. The universe of documents that are

helpful for such purposes is far larger than the small subset of materials that Mr. Libby is

entitled to receive under Brady and its progeny. Further, production of such documents will

not impose any significant burden on the government. At this point, the defense requests only

documents in the possession of the Office of Special Counsel, obviating the need for a search

through the files of any government agency.

               Further, even though the Court has ruled it will not permit the indictment itself

to be presented to the jury, unless the Court is prepared to strike portions of the indictment

right now, the defense must continue to prepare to rebut all of its allegations. Accordingly,

we request that the Court take into account the broad nature of the charges in the indictment

(which describes in detail the controversy over the sixteen words and the reactions of

government officials) when considering the current motion. See United States v. George, 786

F. Supp. 56, 58 (D.D.C. 1991) ("When analyzing materiality, a court should focus first on the

indictment which sets out the issues to which the defendant's theory of the case must




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respond."); see also United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005) (analyzing

discovery requests pursuant to Rule 16 through the lens of the indictment). The defense must

prepare to confront the charges in the indictment as drafted, and we should not be put in the

position of wondering what rulings the Court may make about the indictment on the eve of

trial or once trial begins. Just as important, the government's intended use of news articles

demonstrates that even if portions of the indictment are stricken, the fundamental fact remains

that a large part of this case involves how Mr. Libby and others responded to Mr. Wilson's

allegations concerning his trip to Niger and to whom his report was sent.

               It bears mentioning that the defense does not object to the notion that news

articles will constitute admissible evidence in this case. To the contrary, the defense is

convinced that newspaper and magazine articles will be relevant at trial, because the duties of

Mr. Libby and other government witnesses during the relevant time period involved

responding to media reports. The items identified by the government are by no means the

only relevant articles in this case. We assume, although we have yet to identify specific

articles, that the defense may also offer news articles, both during cross examination of the

government's witnesses and in Mr. Libby's defense, should he decide to put one on.

               The government has offered to produce redacted copies of certain articles and

to "agree to an instruction that the articles are not offered to prove the truth of the matters

asserted in the articles." Resp. at 9. We believe that although such a jury instruction will

undoubtedly be necessary, it is premature for either side to address what redactions of articles

may be appropriate at this early stage of the proceedings. As a general matter, however, the

defense is likely to oppose the wholesale redactions apparently contemplated by the

government on the grounds that they would distort the true nature of the criticism to which




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Mr. Libby and others responded. The jury will not be able to judge the relative importance of

Mr. Wilson's allegations and the peripheral nature of information about his wife if it does not

understand the full factual context that Mr. Libby and others confronted.

               Finally, our focus on Mr. Wilson's accusations does not signal an intention to

use this case to reargue the reasons why the United States invaded Iraq. Given the jury pool,

such an approach would be a foolish and self-destructive trial strategy. Our only intention is

to show the jury what Mr. Libby and other witnesses were doing in June and July of 2003 in

response to Mr. Wilson's charges so that it can understand that Mr. Libby may have been

confused or may have misrecollected facts in good faith, and did not act with a specific intent

to give false testimony. Only with such context will the jury appreciate that Mr. Libby did not

need to attack Mr. Wilson personally to rebut his allegations, because the administration had

clear factual support for its position that Mr. Wilson's criticisms were wrong.




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                                       CONCLUSION

               For the reasons stated herein and in our other submissions in support of our
Third Motion to Compel Discovery, Mr. Libby's pending discovery motion should be
granted.



May 19, 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                       (202) 639-7751
(212) 373-3089

/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: (415) 626-3939
                                              Fax: (415) 875-5700




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posted by cboldt  # 5/20/2006 12:19:00 PM