No Easy Answers
Tuesday, November 28, 2006
Fitzgerald Response to Motion for Reciprocal Disclosure [Doc 208]
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 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 DEFENDANT'S MOTION FOR RECIPROCAL
DISCLOSURE UNDER CIPA § 6(f)
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits this Response to the Defendant's Motion for Reciprocal Disclosure
under Section 6(f) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III.
As discussed below, the plain language of Section 6(f) only requires the government to
provide discovery of information that the government "expects to use to rebut the classified
information" that the defendant will offer at trial, CIPA § 6(f) (emphasis added), and does not, as
the defendant attempts to more broadly recast it, require the government "to identify the evidence
it will use to rebut the memory defense," Def. Mot. at 4 (emphasis added). When interpreted in the
sole way that its text permits, the government currently has no information to provide under Section
6(f) because the government does not expect to dispute the veracity or accuracy of "the classified
information" that the defendant plans to offer at trial in support of his memory defense.
BACKGROUND
The defendant has obtained from the government in this case extensive discovery of
classified information. This information includes a full and complete set of the defendant's own
notes from time periods deemed relevant by the Court; detailed summaries of Presidential Daily
Briefs and Terrorist Threat Matrices received and/or reviewed by the defendant during periods of
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time deemed relevant by this Court; pertinent classified documents from the White House, the CIA,
the State Department and the Department of Defense; and copies of documents in the possession of
the Special Counsel obtained by subpoena or otherwise from the Office of the Vice President. Most
of the extensive classified discovery, and certainly the most sensitive information among the
classified discovery, only relates to the defendant's "memory" defense.
On August 15, 2006, the defendant submitted his consolidated CIPA § 5 Notice to the Court
setting forth the classified information he reasonably expected to disclose at trial. The Notice, as
amended, now consists of nine topic areas of classified information described by three ways: a
narrative, which counsel proffered would be used by the defense to introduce each topic, a listing
of classified documents (exhibits) containing specific classified information which counsel
represented would be used to flesh out the relevant topic area; and proffered testimony concerning
the narratives and exhibits. Every exhibit identified by the defendant in his Notice was obtained
from the government in discovery, and each narrative, as well as the proffered testimony, draws
from the defendant's review of this discovered information, with limited exceptions.
During the course of the Section 6(a) relevancy hearings, the defendant withdrew from the
Court's consideration over 300 of the classified exhibits he had identified in his Section 5 Notice,
with the representation that the defense would not seek to elicit detailed testimony about these
documents but instead would present them to the jury in summary form as dots on a chart. With
some redactions, most of the remaining exhibits and all of the narratives and proffered testimony
were held to be relevant to the defendant's memory defense and ruled admissible. The defense has
not yet provided a final copy of its chart for the Court to rule on.
2
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The CIPA Section 6(c) proceedings are still ongoing, with a number of issues still
unresolved. The Court has indicated that it will not impose a standard whereby the government is
required to produce a substitution or statement for every individual item of classified information
that the Court has ruled relevant and admissible. Instead, the Court has stated that it will look at the
totality of the information made available by the government in assessing whether the proposed
substitutions provide the defendant with substantially the same ability to make his defense as would
disclosure of the underlying classified information. In keeping with these tentative holdings, the
government will be requesting the Court at the upcoming CIPA Section 6© hearing to preclude the
defendant from testifying about certain limited, discrete facts which the court previously ruled were
relevant and admissible.
Throughout the CIPA proceedings the government has maintained that it will not challenge
the defendant's contention that he was busy on important national security issues during the periods
of time deemed relevant by the defense. Significantly, the government has further represented that
it does not intend to challenge the accuracy and veracity of the specific items of sensitive intelligence
that the Court may permit the defendant to disclose in connection with his preoccupation defense.
Indeed, given that most, if not all, of the classified information will be offered by the defense for the
effect it may have had on the defendant's state of mind, rather than for the truth of the matters
asserted, the accuracy of the information is not at issue. ^1 Nor does the government expect to drag
1
Defendant has consistently represented that the memory-related documents are relevant to
establish the defendant's state of mind and not to prove the truth of the matters asserted. See e.g.
Def.'s Doc. No. 146 ("The statements by others reflected in Mr. Libby's notes will not be offered
for the truth of the matters asserted and thus constitute nonhearsay under Rule 801(c). . . . [I]f a
Libby note reflects a CIA official describing intelligence about a terrorist threat against the United
States, it is irrelevant whether the official's statement is true or false, accurate or inaccurate. The
relevance of the statement lies solely in the fact that it was made and the resulting effect it had on
3
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out either the pre-trial proceedings or the trial itself by conducting trials-within-trials over the
accuracy of the classified information.
It is against this backdrop that the defendant now seeks an order from the Court under CIPA
6(f) for disclosure of all evidence that rebuts the "memory defense." Def. Mot. at 4.
ARGUMENT
I. CIPA Section 6(f) Requires Disclosure Only of Information Used to Rebut The
Classified Information.
Section 6(f) of CIPA provides in relevant part:
Whenever the court determines pursuant to subsection (a) that classified information
may be disclosed in connection with a trial or pretrial proceeding, the court shall,
unless the interests of fairness do not so require, order the United States to provide
the defendant with the information it expects to use to rebut the classified
information.
18 U.S.C. App. III, § 6(f) (emphasis added). By its express terms, Section 6(f) authorizes the court
to order disclosure only of information that the government expects will rebut "the classified
information" that the defendant will offer at trial. In other words, Section 6(f) makes no mention of
a requirement that the government disclose information that would rebut defenses generally rather
than classified information specifically.
Without any supporting legal authority for expanding the terms of Section 6(f), the
defendant's motion for reciprocal disclosure demands that the government "identify the evidence it
will use to rebut the memory defense," Def. Mot. at 4 (emphasis added), not just information that
would rebut "the classified information," CIPA § 6(f). By making this demand, the defendant
attempts to recast Section 6(f) as an omnibus reciprocal disclosure provision, which it is not. The
Mr. Libby's state of mind.")
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court's authority under Section 6(f) begins and ends with information that will rebut "the classified
information." That the statute does not permit the court to enter an order requiring the government
to disclose all information rebutting a `defense'should not be at all surprising; CIPA's purpose was
to provide a framework by which the court deals with classified information, and was not intended
to radically expand the defendant's access to the government's trial strategy. The D.C. Circuit
recognized these principles in United States v. North, 910 F.3d 843, 902 n.41 (D.C. Cir. 1990),
modified on other grounds, 920 F.2d 940 (D.C. Cir. 1990), specifically endorsing that the exchange
of information will not be precise and that Section 6(f) has no constitutional defect:
CIPA was specifically designed to minimize the need to "forego [ ] prosecution of conduct
[the government] believed to violate criminal laws in order to avoid compromising national
security information." Discovery proceedings under CIPA, therefore, entail the kind of
strong state interest that may justify an exchange of information between the prosecution and
the defense that is not entirely reciprocal. Wardius, 412 U.S. at 475. In these circumstances,
the Dissent's repeated invocations of Wardius . . . in which the Court considered a state
rule precluding reciprocal discovery by the defense without any countervailing state interest
are misplaced. Here, unlike the situation in Wardius, the "State's inherent
information-gathering advantages," id. at 475 n.9, are matched by the defendant's
opportunities for engaging in "greymail" to derail legitimate prosecutions.
Id. at 902 n.41 (citation omitted).
Accordingly, by its terms, Section 6(f) is limited to evidence that the government intends to
use to rebut specific classified information found to be disclosable at trial under Section 6(a). As
applied here, the government has repeatedly stated that it does not intend to challenge the accuracy
or veracity of the classified information that this Court has ruled relevant and admissible. For
example, if the defendant testifies that it was reported to him that a particular foreign nation was
attempting to become a nuclear power, the government does not expect to present information that
challenges the accuracy of that report. So too with any other classified information that the
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defendant presents for the impact on his state of mind. ^2 Thus, the government currently has no
information to provide pursuant to Section 6(f). ^3 If for some reason the government later develops
an expectation that it will rebut the accuracy or veracity of classified information offered by the
defendant, the government will disclose that information pursuant to Section 6(f)'s continuing duty
to disclose, or if appropriate, seek a ruling from the Court permitting it not to disclose.
II. The "Interests of Fairness" Do Not Require Any Reciprocal Disclosure.
Separate and apart from the absence of any dispute over the classified information, and even
if Section 6(f) somehow could be interpreted to require disclosure of information rebutting the
memory defense generally, Section 6(f) does not require disclosure of information where the
"interests of fairness" do not require it. 18 U.S.C. App. III, § 6(f). The legislative history of Section
6(f) shows that Congress did not intend to require yet additional government disclosure of
information where it was the government that, in the first instance, already provided the classified
information that the defendant is using against the prosecution.
2
The defendant's use of classified information in this case starkly differs from the use made
by the defendant in North. In North, the defendant was not using classified information to present
a memory defense; rather, the classified documents, which were either written by or sent to North,
were "directly relevant to the case." 901 F.2d at 399-400. Thus, the government's rebuttal evidence
in that case did in fact rebut the accuracy of the classified information, whereas in the instant case,
the classified information's accuracy is simply not at issue.
3
To be clear, the government does reserve the right to challenge any overstatements that the
defendant makes concerning the impact of the classified information on the defendant's
preoccupation or memory. For example, if the defendant testifies that certain information caused
him great concern because it was the first time he had heard that information, the government
reserves the right to show that it was not the first time defendant had heard that particular
information; such a showing is not, under Section 6(f), a rebuttal to the classified information. The
defense has represented that it will not overstate the extent to which any classified information was
new. The government obviously cannot determine in advance of defendant's testimony the extent
to which it will need to provide evidence to challenge any overstatements.
6
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The phrase, "unless the interests of fairness do not require," was added to CIPA's reciprocity
provision as a result of concerns expressed by then-Assistant Attorney General Phillip Heymann
about a similar disclosure provision in an earlier version of the bill. That earlier version required the
government, without exception, to provide the defendant with evidence rebutting "particular
classified information" ruled admissible by the court. See Section 107 of H.R. 4736, Classified
Information Criminal Trial Procedures Act, (96th Cong., 1st Sess. 1979). In objecting to this
requirement, Mr. Heymann made the following observation:
If you move to basic fairness in questions of reciprocity, remember that in most cases the
defendant is going to be tendering a document we gave him in discovery as something he
wants to use at trial. The notion of reciprocity [as articulated in the bill] is that the defendant
is revealing his secrets, his case, and [so] the Government ought to [be required] to [reveal]
its secrets, its case. [However], in most of the situations we [will be] dealing with here, the
defendant is going to have obtained from the Government during discovery, documents
which are secret. There will then be this proceeding where the defendant will then say I want
to use this document that the Government gave me at trial. If the judge rules that it can be
used at trial, your bill, Mr. Chairman (Congressman Murphy), and Senator Biden's bill then
requires us to come in and reveal more information, anything that goes to show that we are
going to rebut it, in fairness to the defendant. But remember, the document that the defendant
revealed came from us. It is our document that we gave to the defendant to help his case. It
is our information that was given to the defendant in fairness to him as required by law that
he has now said he would like to use. It hardly seems that equity requires us then to provide
an additional amount of information to show how we are going to rebut the effect of our own
document.
Hearing on Graymail Legislation before the Permanent Select Committee on Intelligence, p. 24
(August 7, 1979).
Mr. Heymann went on to explain how the Federal Rules of Criminal Procedure already
required the government to turn over to the defense in discovery all documents the government
intended to use at trial as well as documents helpful and material to the defendant's case. He
concluded by noting that "[o]ur case is largely exposed by discovery, by the indictment, and by
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Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 8 of 10
normal bills of particulars," and he questioned the wisdom and fairness of an additional discovery
obligation. Id. at 24-27.
Based in large measure on the concerns expressed by Mr. Heymann, H.R. 4736 was amended
to add a new subsection to the previous bill's reciprocity provision. That subsection, Section
107(d), provided:
The provisions of this section shall not apply to classified information provided by the
United States to the defendant pursuant to a discovery request, unless the court determines
that the interests of fairness so require.
H.R. 4736, Section 107(d) (96th Cong., 2nd Sess. 1980). Section 107 ultimately was replaced by
current CIPA Section 6(f) and the provisions of subsection 107(d) were condensed into Section 6(f)'s
current phrase, "unless the interests of fairness do not so require." In commenting on this language,
the House and Senate conferees observed:
The conferees agree that the reciprocal provision of information by the government to the
defendant may not be "in the interests of fairness" in cases where the defendant has received
the classified information in question from the government by discovery.
House Conference Report No. 96-1436, at 12-13 (1980). Accordingly, under CIPA 6(f) disclosure
of information is hardly a matter of right and should not be ordered as a matter of course in cases
where, as here, the defendant has obtained almost all of the classified information in question from
the government in discovery.
Moreover, the interests of fairness do not weigh in favor of yet more pre-trial disclosures
where the purported tactical disadvantages of which the defendant complains, Def. Mot. at 3 ("CIPA
has compelled Mr. Libby to make a detailed presentation concerning the core of his defense"), is
illusory. It is not as if the government learned for the first time during the CIPA proceedings that
the defendant would assert a memory defense. From the start of the defendant's discovery requests,
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discovery motions, and proposed expert testimony, it was no mystery that the defendant was going
to assert that he was busy, that he worked on national security matters, and that any misstatements
were due to faulty memory. Indeed, there was significant litigation over the extent that the
Presidential Daily Briefs and the Terrorist Threat Matrices would be discoverable. CIPA simply
required the defendant to notify the government and the Court as to what classified information he
was going to rely on almost all of which turned out to be information that the government itself
provided in discovery. Furthermore, the playing field is also leveled because the government's
theory of the case, including the general parameters of its rebuttal case, has been aired repeatedly and
in some detail during the course of the CIPA proceedings.
CONCLUSION
For the foregoing reasons, the government does not object to entry of an order that requires
the disclosure of information that it expects to "rebut the classified information" that the defendant
will offer at trial, as CIPA Section 6(f) requires. Currently, however, no such information is
expected to be used because the government does not expect to dispute the accuracy or veracity of
the classified information.
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: November 28, 2006
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Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 10 of 10
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 28th day of November, 2006, I caused true and
correct copies of the foregoing to be served on the following parties by first class mail and
electronically:
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
Patrick J. Fitzgerald
Special Counsel
U.S. Department of Justice
10th & Constitution Ave., NW
Washington, D.C. 20530
202-514-1187
By: /s/ Peter R. Zeidenberg
Deputy Special Counsel
Saturday, November 25, 2006
DOJ Letter and Response to NYT Petition for Hearing on Journalist Priviledge
An interesting waypoint in Miller/NYT's refusal to testify in the Holy Land, Global Relief cases.
Source documents:
http://www.scotusblog.com/movabletype/archives/DOJ%2011-24%20letter.pdf
http://www.scotusblog.com/movabletype/archives/DOJ%2011-25%20opposition.pdf
See http://www.scotusblog.com/movabletype/archives/2006/11/new_york_times.html
U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
November 24, 2006
The Honorable William K. Suter
Clerk, The Supreme Court of the United States
Washington D.C. 20543
Re: New York Times v. Gonzales, No. 06A523
Dear General Suter:
Applicant has sought a stay of the mandate of the court of appeals to prevent the government from reviewing telephone records that will reveal the identity of confidential sources of applicant and its reporters. This Court has requested a response from the government and has inquired when, absent a stay, the review that applicant seeks to stay will take place.
The court of appeals' mandate should issue on Friday, November 24, 2006. While the government desires to review the records in question as expeditiously as possible, in light of the proceedings that must take place on remand, it is our belief that there is no likelihood that the government would see the records that applicant wants to keep confidential before Wednesday morning, November 29, 2006. To remove any doubt: the government will not review the telephone records in question before Wednesday morning unless (1) this Court has denied a stay by that time, and (2) the district court has authorized review of the records. Thus, in no circumstances would applicant's interests be prejudiced if the Court ruled on the stay application by the close of business Tuesday, November 28, 2006.
Sincerely,
Michael R. Dreeben
Deputy Solicitor General
cc: Counsel of record
No. 06A525
IN THE SUPREME COURT OF THE UNITED STATES
____________________
THE NEW YORK TIMES COMPANY, APPLICANT
v.
ALBERTO GONZALES, ET AL.
____________________
ON APPLICATION FOR A STAY OF THE MANDATE
PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
____________________
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION
___________________
PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DEBRA RIGGS BONAMICI
Assistant United States Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
IN THE SUPREME COURT OF THE UNITED STATES
____________________
No. 06A525
THE NEW YORK TIMES COMPANY, APPLICANT
v.
ALBERTO GONZALES, ET AL.
____________________
ON APPLICATION FOR A STAY OF THE MANDATE
PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
____________________
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION
____________________
The Solicitor General, on behalf of the United States,
respectfully files this memorandum in opposition to the application
for a stay of the mandate of the United States Court of Appeals for
the Second Circuit pending the filing of a petition for a writ of
certiorari.
INTRODUCTION
In a ruling "limited to the facts before us," the court of
appeals held that (1) any qualified common law privilege for a
reporter's confidential sources "would be overcome as a matter of
law" on the facts of this case, thus making it "unnecessary" for
the court "to rule on whether such a privilege exists under Rule
2
501" of the Federal Rules of Evidence, and (2) the First Amendment,
as authoritatively construed in Branzburg v. Hayes, 408 U.S. 665
(1972), provides no basis for a reporter to resist a grand jury
subpoena seeking information about the identity of the reporter's
sources especially where, as in this case, the record establishes
"probable cause to believe that the press served as a conduit to
alert the targets of an asset freeze and/or searches." The New
York Times Company v. Gonzales, 459 F.3d 160, 169, 171, 173 (2d
Cir. 2006). After the full court of appeals denied rehearing en
banc, the panel denied applicant's request for a 30-day stay and
instead stayed issuance of the mandate for one calendar week to
allow applicant to seek a stay from this Court. Applicant now
seeks a stay from this Court pending the filing of a petition for
a writ of certiorari. The application should be denied.
Applicant cannot show a reasonable probability that four
members of this Court would vote to grant review of the court of
appeals' decision, which creates no conflict of authority and is
tied to the unique facts of the case. Nor can applicant show that
five members of this Court would vote to reverse the decision
below, which assumed the existence of a qualified reporter's
privilege, but found it overcome on the undisputed facts. Finally,
entry of a stay threatens to frustrate the public interest in a
prompt and thorough grand jury investigation of a vitally important
matter. As the court of appeals stated: "The disclosure of an
3
impending asset freeze and/or search that is communicated to the
targets is of serious law enforcement concern, and there is no
suggestion of bad faith in the investigation or conduct of the
investigation." 459 F.3d at 174; id. at 171 (finding a "clear
showing of a compelling governmental interest in the investigation,
a clear showing of relevant and unique information in the
reporters' knowledge, and a clear showing of need").
A stay would be particularly injurious to the public interest
in this case because it would cause irreparable harm to a
significant criminal investigation. The statute of limitations
will imminently expire on December 3 and 13, 2006, on certain
substantive offenses that the grand jury is investigating.
Declaration of Patrick J. Fitzgerald ¶ 5, at 2-3 (Nov. 13, 2006).
In light of that potential bar to the grand jury's completion of
its work, delay holds a serious potential to thwart the full scope
of a criminal investigation. In contrast, the harm to applicant is
not nearly so great as it suggests. The court's narrow holding in
this unusual case does not create a far-reaching precedent allowing
disclosure into the confidentiality of a reporter's sources. And
any claim that telephone records unrelated to the present
investigation will be disclosed can be alleviated by applicant's
own cooperation. The balance of equities therefore decidedly tips
against the relief requested.
4
STATEMENT
1. Following the September 11, 2001, attacks on the World
Trade Center and the Pentagon, the government intensified efforts
to investigate fund-raising in the United States that supports
terrorist activities. As part of that investigation, the
government came to suspect that two entities the Holy Land
Foundation (HLF) and the Global Relief Foundation (GRF) were
raising funds for terrorism. The government therefore planned to
freeze the assets of HLF and GRF, search their offices, or both, on
December 4 and 14, 2001, respectively. One day before the
government actions against HLF and GRF took place, however, New
York Times reporters contacted HLF and GRF to seek comment on the
imminent asset freezes by the government. No official or agent of
the government was authorized to disclose the planned asset freezes
or searches of HLF and GRF. Disclosures of law enforcement actions
can violate federal criminal laws, including prohibitions against
obstruction of justice. In each instance, the government believes
that the advance notice provided by the New York Times' reporters
reduced the effectiveness of the searches and compromised the
safety of FBI agents who participated in them. 459 F.3d at 162-
163; Gov't C.A. Br. 5-7.
GRF's headquarters were located in Chicago, Illinois. In
response to learning of the leaks of the government's plans to move
against HLF and GRF, the United States Attorney for the Northern
5
District of Illinois opened a grand jury investigation to identify
the governmental employee or employees who told the New York Times'
reporters about the government's imminent action. The government
has at all times treated the two reporters as witnesses rather than
subjects or targets of the investigation. But the government asked
the New York Times to provide the reporters' telephone records for
limited time frames in order to determine the sources of leaks from
the government. When the New York Times refused to cooperate, the
government informed it that, in view of the extraordinary
circumstances of the investigation and the exhaustion of
alternative avenues of inquiry, the government would seek to obtain
the telephone records from third parties. ^1 459 F.3d at 164-165;
Gov't C.A. Br. 7-9.
2. On August 9, 2004, the New York Times filed a civil action
in the Southern District of New York seeking a declaratory judgment
that privileges derived from the common law and the First Amendment
barred the government from enforcing a subpoena for the reporters'
telephone records held by third parties. The government moved to
1
The government originally notified the New York Times that
it intended to seek telephone records covering a total of 33 days,
but it ultimately narrowed the time frame of records sought to a
total of eleven days, covering periods immediately before the
reporters' communications to HLF and GRF on December 3 and 13,
2001, concerning imminent government action against those entities,
and a period immediately before an article in the New York Times
pertaining to GRF. The records now at issue cover the following
time periods: September 27-30, 2001 (4 days), December 1-3, 2001 (3
days), and December 10-13 (4 days).
6
dismiss the complaint on the ground that the New York Times had an
adequate remedy by moving to quash any such subpoenas under Federal
Rule of Criminal Procedure 17. The district court denied the
motion, concluding that it had authority and discretion to
entertain the action for a declaratory judgment. The court then
granted summary judgment for the New York Times. It held that both
the common law and the First Amendment supplied a qualified
privilege to reporters to protect confidential sources. It further
held that, in the circumstances of this case, those privileges
protected against compelled disclosure of the reporters' telephone
records held by third parties. The New York Times Company v.
Alberto Gonzales, 382 F. Supp.2d 457 (S.D.N.Y. 2005); 459 F.3d at
165.
3. The United States appealed, and the court of appeals
reversed. The court first concluded that Rule 17(c) of the Federal
Rules of Criminal Procedure did not preclude resort to the
declaratory judgment procedure and that the district court did not
abuse its discretion in deciding to entertain this action. The
court also concluded the New York Times could assert whatever
reporter's privileges might exist in order to oppose enforcement of
subpoenas for telephone records held by third parties (e.g., the
telephone service providers). The court concluded that, "so long
as the third party plays an `integral role' in reporters' work, the
records of third parties detailing that work are, when sought by
7
the government, covered by the same privileges afforded to the
reporters themselves and their personal records." 459 F.3d at 168.
The court, however, concluded that no valid claims of privilege
exist in this case. Id. at 168-174.
a. As to the common law, the court determined that it was
"unnecessary * * * for us to rule on whether [a qualified
reporter's] privilege exists under Rule 501" of the Federal Rules
of Evidence, because "it would be overcome as a matter of law" on
the facts of this case. 459 F.3d at 169. The court began by
agreeing with the district court that any possible common law
privilege for a reporter's confidential sources would be qualified,
rather than absolute. ^2 Ibid. The court explained that "the
government has a highly compelling and legitimate interest in
preventing disclosure of some matters and that * * * interest would
be seriously compromised if the press became a conduit protected by
an absolute privilege through which individuals might covertly
cause disclosure." Ibid. The court next held that it need not
determine the precise scope of any qualified privilege, because
"whatever standard is used, the privilege has been overcome as a
2
In the district court, the New York Times had
unsuccessfully advocated an essentially absolute privilege, 382
F.Supp.2d at 501, but in the court of appeals, the Times
effectively abandoned that position by relegating it to a footnote
and stating that, because the government had assertedly failed to
overcome a qualified privilege, "there is no need for th[e] [court
of appeals] to go further at this time." Appl. C.A. Br. 61 n.22.
8
matter of law on the facts before us." ^3 Id. at 170.
The court of appeals reasoned that the grand jury's
investigation focused both on the unauthorized disclosure of the
government's planned asset freezes and searches and on the
reporters' communications to the foundations at issue. The
reporters' communications, the court noted, "had the effect of
alerting the[] [foundations] to those plans, perhaps endangering
federal agents and reducing the efficacy of the actions." 459 F.3d
at 170. The court concluded that the government had a "compelling
interest" in protecting the confidentiality of its actions to
thwart terrorist financing, particularly where unauthorized
disclosures "may constitute a serious obstruction of justice."
Ibid.
The court also found it "beyond argument that the evidence
from the reporters is on its face critical" to the grand jury
investigation. 459 F.3d at 170. First, the court noted, the
reporters were the only witnesses, other than the sources
themselves, who could describe the circumstances of the leaks.
Ibid. Second, "the reporters were not passive collectors of
3
The court of appeals described three different formulations
of the asserted qualified privilege, 459 F.3d at 169-170, including
that advocated by applicant (Appl. C.A. Br. 61): "a test requiring
a showing that the information sought is `highly material and
relevant, necessary or critical to the maintenance of the claim,
and not obtainable from available sources.'" 459 F.3d at 169-170
(quoting In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d
Cir. 1982)).
9
information whose evidence is a convenient means for the government
to identify an official prone to indiscretion." Ibid. Rather,
"the communications to the two foundations were made by the
reporters themselves and may have altered the results of the asset
freezes and searches." Ibid. The court thus determined that the
reporters' information is "critical" to the investigation: "There
is simply no substitute for the evidence they have." Ibid.
The court stressed that its "holding is limited to the facts
before" it, i.e., where "the reporters were active participants in
the alerting of the targets." 459 F.3d at 171 & n.5. The court
observed that, in this context where reporters made disclosures
of planned asset freezes or searches to the targets of those
actions the limited information sought by the grand jury would
not imperil "a free press." Ibid. The court explained that
"[l]earning of imminent law enforcement asset freezes/searches and
informing targets of them is not an activity essential, or common,
to journalism." Ibid. The court added that it saw "no public
interest in having information on imminent asset freezes/searches
flow to the public, much less to the targets." Ibid.
b. As to the First Amendment, the court of appeals recognized
that this Court's decision in Branzburg v. Hayes, 408 U.S. 665
(1972), stands as the "governing precedent regarding reporters'
protection under the First Amendment from disclosing confidential
sources." 459 F.3d at 172. The court stated that Branzburg held
10
that the First Amendment does not give reporters any privilege to
withhold evidence from a grand jury greater than privileges held by
other citizens. Ibid. (citing Branzburg, 408 U.S. at 690). While
the court observed that Branzburg said that a grand jury
investigation that is not conducted in good faith might give rise
to First Amendment issues, ibid. (citing Branzburg, 408 U.S. at
707), the court concluded that the law enforcement interests in
this case are genuine and serious, and "there is no suggestion of
bad faith in the investigation or conduct of the investigation."
Id. at 174.
Accordingly, the court vacated the district court's judgment
and remanded for it to enter judgment in accordance with the court
of appeals' opinion, "without prejudice to the district court's
redaction of materials irrelevant to the investigation upon an
offer of appropriate cooperation." ^4 459 F.3d at 174.
c. Judge Sack dissented. 459 F.3d at 174-189. Judge Sack
would have adopted a qualified common law privilege for reporters
in the "leak" context that contained three elements: "(1) that the
4
In both its common law and First Amendment discussions, the
court of appeals noted that the New York Times expressed concern
about the "overbreadth" of the proposed subpoenas, which would seek
telephone records that would reveal sources irrelevant to the
present investigation. The court's response was that this "problem
can be remedied by redaction with the cooperation of the Times and
its reporters." Id. at 174 & n.8; see also id. at 171 ("the
government, if offered cooperation that eliminates the need for the
examination of the Times' phone records in gross, cannot resist the
narrowing of the information to be produced.").
11
information being sought is necessary highly material and
relevant, necessary or critical, (2) that the information is not
obtainable from other available sources, and (3) that nondisclosure
of the information would be contrary to the public interest, taking
into account both the public interest in compelling disclosure and
the public interest in news gathering and maintaining a free flow
of information to citizens." Id. at 187 (citations and internal
quotation marks omitted). On the present record, the dissent would
have found that the government had not made the showings necessary
to overcome a qualified privilege, so formulated. Id. at 187-189.
In particular, Judge Sack believed that the government's failure to
furnish specific information about the course of the grand jury
investigation meant that it had not sufficiently established: the
materiality and relevance of the information sought; the
government's exhaustion of alternative means to identify the
sources of the leaks; or the reasons why the public interest
balancing test that the dissent fashioned would be satisfied.
Ibid.
4. On September 1, 2006, the New York Times filed a petition
for rehearing en banc. On September 7, 2006, the United States
filed a motion requesting that the court of appeals expedite review
of the appellee's petition for rehearing en banc. In support of
its motion, the government submitted a declaration by United States
Attorney Patrick J. Fitzgerald, stating that the five-year statute
12
of limitations on certain substantive offenses under investigation
will expire in December 2006:
The disclosures that are the subject of the grand jury's
investigation include disclosures that were made on or
about December 3 and December 13, 2001. Thus, the
statute of limitations applicable to certain substantive
offenses based on those disclosures will expire on or
about December 3 and December 13, 2006.
Declaration of Patrick J. Fitzgerald (September 3, 2006).
On November 2, 2006, the full court of appeals denied the New
York Times' petition for rehearing en banc without ordering a
response from the government. Under Federal Rule of Appellate
Procedure 41(b), the mandate would ordinarily issue seven calendar
days after the denial of the petition for rehearing. Under Rule
41(d)(1), however, the filing of a motion for stay of the mandate
delays the issuance of the mandate until the court disposes of the
motion.
On November 9, 2006, The New York Times filed a motion in the
court of appeals for a 30-day stay of the mandate pending the
filing of a petition for a writ of certiorari. The United States
opposed that motion, again emphasizing the looming expiration of
the statute of limitations for certain substantive crimes under
investigation and attaching an affidavit from United States
Attorney Fitzgerald. On November 16, 2006, the court of appeals
entered an order staying the issuance of the mandate for one
calendar week to permit the New York Times to seek a stay from this
Court.
13
ARGUMENT
THE APPLICATION FOR A STAY OF THE MANDATE PENDING THE FILING
OF A PETITION FOR A WRIT OF CERTIORARI SHOULD BE DENIED
To secure a stay pending the filing and disposition of a
petition for writ of certiorari, an applicant must show that there
is "a reasonable probability that certiorari will be granted * * *,
a significant possibility that the judgment below will be reversed,
and a likelihood of irreparable harm (assuming the correctness of
the applicant's position) if the judgment is not stayed." Barnes
v. E-Systems, Inc., 501 U.S. 1301, 1302 (1991) (Scalia, J., in
chambers); see Planned Parenthood of Southeastern Pennsylvania v.
Casey, 510 U.S. 1309, 1310 (1994) (Souter, J., in chambers). "[I]n
a close case it may [also] be appropriate to `balance the equities'
to explore the relative harms to applicant and respondent, as
well as the interests of the public at large." Rostker v.
Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers).
When, as in this case, the court of appeals has denied a stay, the
applicant's burden "is particularly heavy." Beame v. Friends of
the Earth, 434 U.S. 1310, 1312 (1977) (Marshall, J., in chambers).
"The burden is on the applicant to `rebut the presumption that the
decision below -- both on the merits and on the proper interim
disposition -- is correct.'" Casey, 510 U.S. at 1310 (quoting
Rostker, 448 U.S. at 1308)).
Applicant cannot make the requisite showing in this case.
There is no reasonable probability that this Court will grant
14
certiorari or reverse the court of appeals' decision. The court of
appeals did not resolve whether a common law qualified reporter's
privilege exists in a grand jury investigation. Rather, it held
only that, if one exists and whatever its scope, it was overcome on
the facts of this particular case. That decision is correct,
factbound, and creates no conflict of authority. The court's
rejection of a First Amendment privilege is also consistent with,
and indeed compelled by, Branzburg v. Hayes, and it too raises no
conflict with other authority that would warrant review. Even if
review were warranted on the general issue of a reporter's
privilege, this case presents a highly atypical fact pattern, in
which the reporters themselves were active participants in alerting
the targets of asset freeze and searches to imminent government
action. In that circumstance, the case for disclosure of the
reporter's telephone records is compelling: the government's
investigation is manifestly important; the reporters' information
is critical; and "[t]here is simply no substitute for the evidence
they have." 459 F.3d at 170. For those and other reasons
including that this case involves an assertion of privilege in
telephone records held by third parties, rather than the usual
claim of privilege for the reporter's own records or testimony
this case would provide an exceptionally unsuitable vehicle for
consideration of the general legal issues that applicant seek to
raise.
15
Finally, if it is necessary to consider the stay equities, the
public interest strongly favors denial of the stay. The government
is nearing the end of the limitations period on certain substantive
criminal charges stemming from the disclosures at issue. While
other criminal charges may remain, it would unreasonably frustrate
the grand jury's investigation if delay prevented full and adequate
consideration of the serious potential criminal charges at issue.
That irreparable harm to the public interest strongly counsels
against a stay. In contrast, the harm faced by applicant is
limited and can be reduced by measures within applicant's control.
A. Applicant Cannot Establish A Reasonable Probability That
The Court Will Grant Certiorari Or Reverse the Judgment
In This Case
Applicant's primary submission (Appl. 8-12) is that conflicts
in authority warrant this Court's review of both the qualified
common-law privilege issue and the First Amendment issue. Contrary
to that claim, the court of appeals' decision does not create or
deepen any such asserted conflicts. And unique features of this
case including the involvement of reporters in disclosures under
investigation and their assertion of the privilege as to telephone
records held by third parties further diminish any likelihood
that the Court would grant certiorari or reverse the judgment
below.
1. Applicant argues (App. 9-10) that courts are in disarray
on whether the First Amendment protects reporters against
16
compulsion to reveal confidential sources in criminal proceedings.
In fact, since this Court's rejection of any such privilege in the
grand jury context in Branzburg v. Hayes, no federal appellate
decision has recognized any First Amendment protection for
reporters who interpose a confidential-source privilege against a
grand jury subpoena.
Branzburg itself resolved the question whether the First
Amendment protects a reporter's confidential sources in a good-
faith grand jury investigation: it held that no special First
Amendment protection exists. 408 U.S. at 707-708; see Cohen v.
Cowles Media Co., 501 U.S. 663, 669 (1991) (the First Amendment
does not "relieve a newspaper reporter of the obligation shared by
all citizens to respond to a grand jury subpoena and answer
questions relevant to a criminal investigation, even though the
reporter might be required to reveal a confidential source");
University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990)
(Branzburg "rejected the notion that under the First Amendment a
reporter could not be required to appear or to testify as to
information obtained in confidence without a special showing that
the reporter's testimony was necessary"). Since that time, every
federal appellate court that has resolved the issue has followed
Branzburg's holding. ^5
5
See, e.g., In re: Grand Jury Subpoena, Judith Miller, 438
F.3d 1141, 1142 (D.C. Cir.), cert. denied, 125 S. Ct. 2977 (2005);
In re Grand Jury Proceedings, 5 F.2d 397, 399-404 (9th Cir. 1993)
17
Applicant cites cases from three circuits (the First, Third,
and Eleventh), apart from the court of appeals below, that,
applicant claims, have recognized a reporter's privilege under the
First Amendment in criminal cases. Appl. 9 (citing In re Special
Proceedings, 373 F.3d 37, 45 (1st Cir. 2004); United States v.
LaRouche Campaign, 841 F.2d 1176, 1181 (1st Cir. 1988); In re Grand
Jury Subpoena of Williams, 766 F. Supp. 358, 367 (W.D. Pa. 1991),
affirmed by an equally divided court, 963 F.2d 567 (3d Cir. 1980)
(en banc), cert. denied, 449 U.S. 1126 (1981); United States v.
Cuthbertson, 630 F.2d 139, 146-147 (3d Cir. 1980), cert. denied,
449 U.S. 1126 (1981); United States v. Caporale, 806 F.2d 1487,
1504 (11th Cir. 1986)). None of those decisions assists it. ^6
(no privilege in good-faith grand jury inquiry involving legitimate
law enforcement needs, where information sought does not have only
a remote and tenuous relationship to the investigation); United
States v. Smith, 135 F.3d 963, 968-969 (5th Cir. 1998); cf. In re
Grand Jury Proceedings, Storer Communications, 810 F.2d 580, 587-
588 (6th Cir. 1987) (state statute that conferred reporter's
privilege on newspaper reporters, and not on broadcast media
reporters, did not interfere with any "fundamental right" and thus
triggered only rational basis equal protection scrutiny) (citing
Branzburg).
6
Applicant also garners no assistance from prior decisions
of the Second Circuit itself (Appl. 9): the panel explained why
none of its precedent involved circumstances comparable to this
case (459 F.3d at 173); the full court of appeals denied rehearing
en banc, thus indicating no dissonance in circuit precedent; and,
in any event, a claim of intra-circuit conflict would not warrant
this Court's review, see Wisniewski v. United States, 353 U.S.
901, 902 (1957) (per curiam). Applicant's citation (Appl. 9-10) of
civil cases likewise does not advance its claim of a conflict; this
case involves grand jury subpoenas and is squarely controlled by
Branzburg.
18
In Special Proceedings, the First Circuit held that Branzburg
precludes recognition of a First Amendment reporter's privilege in
the context of a special prosecutor's investigation, a context the
court found analogous to a grand jury investigation. 373 F.3d at
44-45 ("In Branzburg, the Supreme Court flatly rejected any notion
of a general-purpose reporter's privilege for confidential sources,
whether by virtue of the First Amendment or of a newly hewn common
law privilege. * * * Branzburg governs in this case even though we
are dealing with a special prosecutor rather than a grand jury.").
The First Circuit's earlier decision in LaRouche considered, not a
grand jury subpoena, but a defendant's effort to subpoena for trial
"outtakes" of an television network's interview with a prospective
government witness. 841 F.2d at 1177, 1182; cf. Special
Proceedings, 373 F.3d at 45 (noting that LaRouche involved a
"situation[] distinct from Branzburg").
In Williams, the Third Circuit affirmed a district court
decision by an equally divided en banc court, 963 F.2d 567, thus
establishing no precedent, see Rutledge v. United States, 517 U.S.
292, 204 (1996). In Cuthbertson, similar to LaRouche, the Third
Circuit considered privilege claims only as to a defense subpoena
for statements of government trial witnesses and recognized a
qualified privilege in that context (630 F.2d at 146-147); no grand
jury subpoena was at issue.
Finally, in Caporale, the Eleventh Circuit applied a
19
reporter's privilege in a post-trial evidentiary hearing concerning
allegations of jury tampering. 806 F.2d at 1504. Again, like the
other decisions on which applicant relies, Caporale did not involve
a grand jury subpoena.
In addition, none of the cases cited by applicant establishes
an absolute privilege; at most, they point towards a qualified
privilege. E.g., Caporale, 806 F.2d at 1504; Cuthbertson, 630 F.3d
at 146-147. In light of the court of appeals' unequivocal ruling
in this case that any qualified common-law privilege (regardless of
its formulation) is overcome by the strength of the government's
interest and the necessity of acquiring information from applicant,
any qualified First Amendment privilege would also have to yield.
For that reason as well, the decision below would not create any
conflict worthy of this Court's review.
In sum, the courts are not in disarray on the question
presented by this case: whether reporters may assert a
constitutional privilege against revelation of their confidential
sources in response to a grand jury investigation conducted in good
faith. Consistent with this Court's holding in Branzburg, the
federal appellate courts have uniformly and correctly held that
they may not. ^7
7
Applicant's reliance (Appl. 10 n.5) on state court
decisions is also misplaced. Only one of the state cases applicant
cites applied a First Amendment reporter's privilege in a grand
jury investigation after Branzburg. See In re Letellier, 578 A.2d
722 (Me. 1990). That case misconstrued Branzburg and relied on
20
2. Applicant also argues (Appl. 11) that conflicts over the
existence and scope of a common law reporter's privilege under
Federal Rule of Evidence 501 warrant this Court's review. Contrary
to applicant's claim, there is no reasonable probability that this
Court will grant certiorari to review that issue. Nor is it likely
that the Court would reverse the court of appeals' holding that,
even if a reporter's privilege existed, it would be overcome on the
unusual facts of this case.
a. The ultimate basis for the court of appeals' decision is
that, even if the law recognized a qualified reporter's privilege
in the context of a good faith grand jury investigation, the
privilege would be overcome on the unique facts of this case. The
court accordingly found it "unnecessary * * * to rule on whether [a
qualified reporter's] privilege exists under Rule 501." 459 F.3d
at 169. In so holding, the court considered a variety of
formulations of the qualified privilege and held that "whatever
standard is used, the privilege has been overcome as a matter of
law on the facts before us." ^8 Id. at 170. One of the formulations
First Circuit decisions applying a reporter's privilege in civil
proceedings. Id. at 724-726. In any event, Letellier ultimately
required the reporter to disclose the subpoenaed material to the
grand jury, so the recognition of the privilege was not essential
to the judgment. Id. at 727-730. And, as noted in the text, any
qualified privilege would similarly be overcome on the facts here.
8
The panel majority also noted that the facts would overcome
even the formulation of the privilege favored in Judge Sack's
dissenting opinion, stating: "We harbor no doubt whatsoever that,
on the present record, the test adopted by our dissenting colleague
21
the court considered was the formulation specifically advocated by
applicant. Compare id. at 169-170 with App. C.A. Br. 61; see page
8, note 3, supra; Appl. 2.
The only legal holding of the court was that if any privilege
exists in this context, it would be qualified, rather than
absolute. 459 F.3d at 169-170. Applicant does not seriously
contest that holding. As a result, this case presents no legal
issue concerning the existence or scope of a qualified common law
reporter's privilege to protect confidential sources in a criminal
case: the panel assumed the standard applicant advocated and
ruled against it on the facts. After a detailed discussion of the
facts (459 F.3d at 169-171), the court of appeals correctly
concluded:
There is therefore a clear showing of a compelling
governmental interest in the investigation, a clear
showing of relevant and unique information in the
reporters' knowledge, and a clear showing of need. No
grand jury can make an informed decision to pursue the
investigation further, much less to indict or not to
indict, without the reporters' evidence. It is therefore
not privileged.
Id. at 171. There is no reasonable probability that this Court
would grant certiorari to review the court of appeals' conclusion
that, on the particular facts and record in this case, the
qualified privilege that applicant advocates was overcome.
b. Applicant asserts (Appl. 5, 12, 13), that the court's
for overcoming a qualified privilege has been satisfied." 459 F.3d
at 171 n.5.
22
holding that the privilege was overcome lacked evidentiary support,
such that "the Second Circuit effectively held that reporters'
First Amendment and federal common law-based privileges will always
be overcome provided that counsel for the government simply
asserts, without submitting evidence of any kind, that he has
satisfied the applicable test." Appl. 12. The court, however,
explicitly found the government's showing sufficient in this case
because "unique knowledge of the reporters" lay "at the heart of
the investigation" in light of their role in "informing the
targets" of upcoming assets freezes. 459 F.3d at 171. The court
could not have been clearer that its holding was "limited to the
facts" before it (which are far from a typical fact pattern) and
"in no way suggest[ed] that [the showing made here] would be
adequate in a case involving less compelling facts." Ibid.
Accordingly, the court of appeals itself placed careful limits on
its holding and did not announce the far-reaching rule that
applicant ascribes to it.
In addition, the record amply supports the conclusion that the
government exhausted all reasonable means of investigation before
seeking to subpoena the telephone records at issue. The record
establishes that government agents searched HLF's and GRF's offices
on December 4 and 14, 2001. The articles that contemporaneously
appeared in the New York Times made it evident that government
plans for imminent action had been leaked. After the searches, the
23
United States Attorney's office and the FBI "commenced an
investigation to determine whether government officials were
responsible for disclosing to the Times that a search of GRF's
office was imminent." 382 F.Supp.2d at 467. More than eight
months elapsed from the December 2001 searches before the United
States Attorney wrote to applicant to request voluntary cooperation
from the reporter involved in the GRF disclosure and production of
his telephone records for a defined period related to that
disclosure. Ibid. (discussing letter from Patrick J. Fitzgerald
dated August 7, 2004) Applicant refused cooperation, stating that
its reporter's newsgathering activities and discussions with
confidential sources were privileged. Ibid.
Nearly two years then passed before the United States Attorney
renewed contacts with applicant, informing it that the government's
inquiry now encompassed the HLF disclosure. The United States
Attorney requested voluntary cooperation from the reporters
involved in both disclosures. At that time, Fitzgerald notified
applicant that, pursuant to the Department of Justice Guidelines
for Issuance of Subpoenas to Members of the News Media, 28 C.F.R.
50.10, he had been "duly authorized to obtain and review
information from other sources, particularly those entities
providing telephone service to The New York Times, [and the
reporters involved]." 382 F.Supp.2d at 467. Subsequently,
applicant requested a meeting with senior officials of the
24
Department of Justice to discuss Fitzgerald's efforts to obtain
telephone records in this case. In declining to meet, Deputy
Attorney General James Comey specifically assured applicant that
"[h]aving diligently pursued all reasonable alternatives out of
regard for First Amendment concerns, and having adhered
scrupulously to [Department of Justice] policy, including a
thorough review of Mr. Fitzgerald's request within [the Department
of Justice], we are now obliged to proceed." Id. at 469.
A critical component of the Department of Justice Guidelines
is that
All reasonable attempts should be made to obtain information
from alternative sources before considering issuing a subpoena
to a member of the news media, and similarly all reasonable
alternative investigative steps should be taken before
considering issuing a subpoena for telephone toll records of
any member of the news media.
28 C.F.R. 50.10(b). In order to issue such a subpoena, the
Attorney General personally must authorize that action. 28 C.F.R.
50.10(e) ("No subpoena may be issued to any member of the news
media or for the telephone toll records of any member of the new
media without the express authorization of the Attorney General.").
Before seeking the Attorney General's involvement and
authorization, "the government should have pursued all reasonable
investigation steps as required by paragraph (b) of this section."
28 C.F.R. 50.10(g)(1). The Attorney General's authorization
reflects a determination that such pursuit had occurred. And in
25
the district court the government submitted an affidavit attesting
that it has "reasonably exhausted alternative investigative means."
459 F.3d at 171; 382 F.Supp.2d at 511.
In light of the overall context of this case, the record
supports the inference that the government pursued all reasonable
alternative investigative steps to obtain the information it sought
before seeking the telephone records at issue. ^9 The timing of the
government's initial contact with applicant eight months after
the disclosures in question supports the inference that the
government had diligently, but unsuccessfully, pursued other means
of identifying the government official or officials who provided
information to applicant's reporters. Nearly another two years
ensued before the government renewed its requests to applicant
during which time the United States Attorney obtained authorization
from the Attorney General to issue subpoenas. Before seeking such
authorization, the United States Attorney was required by
regulation to exhaust alternative investigative means, and a court
can presume that the United States Attorney carried out that
requirement in good faith. See United States v. Armstrong, 517
9
The Attorney General's Guidelines cover review of telephone
records even though no appellate decision before this case had
permitted a claim of reporter's privilege in that context, and, as
discussed below, see page 32, infra, no such claim is warranted.
The decision to seek telephone records in this case rather than to
compel testimony or documents from the reporters themselves itself
represented a measured approach that took into account the
reporters' interests.
26
U.S. 456, 464 (1996) ("in the absence of clear evidence to the
contrary, courts presume that [prosecutors] have properly
discharged their official duties") (quoting United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Deputy
Attorney General reiterated that the Department had pursued "all
reasonable alternatives out of regard for First Amendment concerns"
before approving the review of the reporters' telephone records.
382 F.Supp.2d at 469. Against that background, it would be
unreasonable to reject the government's declaration that all
reasonable steps had been exhausted based on speculation that,
despite determinations at the highest level of the Justice
Department that other means had been exhausted, the government had
overlooked or failed to employ obvious alternative means of
identifying the sources of the leaks.
c. Contrary to applicant's claim (Appl. 11), the court of
appeals' decision does not conflict with Jaffee v. Redmond, 518
U.S. 1 (1996), in which this Court recognized a psychotherapist-
patient privilege under Rule 501. To the extent that applicant
suggests that because Jaffee rejected case-by-case balancing in the
psychotherapist-patient context, it forbids balancing of interests
concerning any claim of privilege, applicant is clearly mistaken.
See, e.g., Roviaro v. United States, 353 U.S. 53, 60-62 (1957)
(qualified informant's privilege requires "balancing the public
interest in protecting the flow of information against the
27
individual's right to prepare his defense"). In any event,
applicant effectively abandoned any claim of an absolute privilege
in the court of appeals, see page 7, note 2, supra, and does not
explicitly advocate such a privilege here.
3. The unlikelihood that this Court would grant review in his
case is underscored by the Court's recent denial of certiorari in
a case raising highly similar issues. "The action of the Court on
an earlier petition for certiorari involving the same or similar
questions * * * is of course relevant" to whether a stay should
issue. Robert L. Stern, et al., Supreme Court Practice 794 n.71
(8th Ed. 2002) (collecting citations); see, e.g., Packwood v.
Senate Select Committee, 510 U.S. 1319, 1321 (1994) (Rehnquist,
C.J.) ("Our recent denial [of certiorari] demonstrates quite
clearly the unlikelihood that four Justices would vote to grant
review on this issue."); South Park School District v. United
States, 453 U.S. 1301, 1303-1304 (1981) (Powell, J.) (denying stay
because there was no reasonable probability that review would be
granted as Court had denied review in an "almost identical" case
three years earlier).
In June 2004, this Court denied a petition for a writ of
certiorari in a case in an analogous posture and raising nearly
identical arguments in favor and against the grant of review. In
28
re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir.), ^10
cert. denied, 125 S. Ct 2977 (2005). In that case, the court of
appeals' rationale bore a striking resemblance to the rationale of
the court of appeals in this case. Judge Sentelle's opinion for
the court stated:
The District Court held that neither the First Amendment
nor the federal common law provides protection for
journalists' confidential sources in the context of a
grand jury investigation. For the reasons set forth
below, we agree with the District Court that there is no
First Amendment privilege protecting the evidence sought.
We further conclude that if any such common law privilege
exists, it is not absolute, and in this case has been
overcome by the filings of the Special Counsel with the
District Court.
438 F.3d at 1142 (Sentelle, J., Opinion for the Court). Judge
Henderson's concurring opinion further stated:
Because my colleagues and I agree that any federal
common-law reporter's privilege that may exist is not
absolute and that the Special Counsel's evidence defeats
whatever privilege we may fashion, we need not, and
therefore should not, decide anything more today than
that the Special Counsel's evidentiary proffer overcomes
any hurdle, however high, a federal common-law reporter's
privilege may erect.
Id. at 1159 (Henderson, J., concurring). In light of this Court's
denial of certiorari in Miller in the face of legal arguments
nearly identical to those presented here there is no reasonable
probability that the Court will grant review in this case.
A further factor undercutting the likelihood of this Court's
10
The case was decided on February 15, 2005. The opinion was
reissued on February 3, 2006. 438 F.3d at 1141.
29
review is that Congress has periodically considered legislative
proposals that would create a federal reporter's privilege. See
382 F. Supp.2d 507 n.45. In fact, bills are currently under
consideration by the Congress. ^11 This active consideration of
reporter's privilege legislation in both Houses of Congress
provides strong additional reason for this Court's restraint. This
Court has stated that "we are disinclined to exercise this
authority [to recognize new privileges under Rule 501] expansively.
We are especially reluctant to recognize a privilege in an area
where it appears that Congress has considered the relevant
competing concerns but has not provided the privilege itself. * *
* The balancing of conflicting interests of this type is
particularly a legislative function." University of Pennsylvania
v. EEOC, 493 U.S. 182, 190 (1990). See also Branzburg, 408 U.S. at
706 ("At the federal level, Congress has freedom to determine
11
On July 18, 2005, Representative Mike Pence, with co-
sponsors, introduced in the House the Free Flow of Information Act
of 2006, H.R. 3323, 109th Cong., to establish a qualified
reporter's privilege. On May 18, 2006, Senator Richard Lugar,
with co-sponsors, introduced in the Senate the Free Flow of
Information Act of 2006, S. 2831, 109th Cong., to establish a
qualified reporter's privilege. On September 20, 2006, the Senate
Committee on the Judiciary held a hearing on the subject of
"Reporters' Privilege Legislation: Preserving Effective Federal
Law Enforcement," at which the Deputy Attorney General testified.
For the House and Senate bills and a notice of the Judiciary
Committee hearing including the prepared testimony of several
witnesess, see: http://thomas.loc.gov/cgi-
bin/query/z?c109:H.R.3323 (House Bill);
http://www.govtrack.us/data/us/bills.text/109/s/s2831.pdf (Senate
Bill); http://judiciary.senate.gov/hearing.cfm?id=2070 (Judiciary
Committee Hearing).
30
whether a statutory newsman's privilege is necessary and desirable
and to fashion standards and rules as narrow or broad as deemed
necessary to deal with the evil discerned and, equally important,
to refashion those rules as experience from time to time may
dictate."). In view of Congress's current consideration of
qualified-privilege legislation to protect a reporter's
confidential sources, intervention by this Court to create such a
privilege is especially unlikely and unwarranted.
4. Even if the issue of a reporter's privilege to protect
confidential sources might other otherwise warrant this Court's
attention, this case would be a singularly unsuitable vehicle for
review because of its atypical facts.
First, as the court of appeals emphasized, this case does not
involve reporters who merely acquired and then published
information from confidential sources. Rather, the reporters
disclosed information to the targets of imminent law enforcement
action before that action took place. As the court explained,
applicants' "reporters were not passive collectors of information
whose evidence is a convenient means for the government to identify
an official prone to indiscretion." 459 F.3d at 170. Rather, "the
communications to the two foundations were made by the reporters
themselves and may have altered the results of the asset freezes
and searches." Ibid. Thus, the reporters' actions here lie at the
core of the grand jury investigation but at the periphery of normal
31
news gathering.
In light of those facts, the court of appeals found it beyond
question that the reporters' information "is critical to the
present investigation"; "[t]here is simply no substitute for the
evidence they have." 459 F.3d at 170. The court also found no
need to analyze prior circuit precedent concerning First Amendment
claims of the press in other judicial contexts because "[n]one
involved a grand jury subpoena or the compelling law enforcement
interests that exist when there is probable cause to believe that
the press served as a conduit to alert the targets of an asset
freeze and/or searches." Id. at 173. The court thus "emphasize[d]
that [its] holding is limited to the facts before us." Id. at 171.
The narrowly limited nature of the court's holding undermines any
claim that this case should be the flagship for defining a
qualified privilege for reporters in a criminal investigation. The
fact that the reporters here relayed disclosures from a government
source to targets of an imminent law enforcement action
substantially weakens any claim of freedom of the press. It also
sets this case apart from others that have considered reporter's
privilege issues. Accordingly, this unusual case constitutes a
poor vehicle for certiorari. ^12
12
As noted, the government has treated the reporters whose
calls are at issue as witnesses, rather than subjects or targets of
the grand jury investigation. Nevertheless, applicant's reporters
have admitted contacting representatives of HLF and GRF in advance
of the government's planned actions to seek comment. The
32
Second, this case does not involve a direct effort to obtain
information from a reporter, either through testimony or subpoenaed
records in the hands of the reporter herself. Rather, this case
involves telephone records held by third parties. Application of
a reporter's privilege to such records would be wholly unwarranted,
even if the reporter herself could assert a qualified privilege.
No one has a justified expectation of privacy in the telephone
numbers of other persons whom the individual calls or who call the
individual: those numbers are conveyed to the telephone company
and form part of its business records. See Smith v. Maryland, 442
U.S. 735, 742-746 (1979). Whatever restrictions might be placed on
the grand jury's acquisition of evidence from reporters themselves,
no such restrictions should be placed on acquisition of telephone
records from third parties.
Reporters might find it essential to use the telephone to talk
with sources. But they might equally claim that it is essential to
take airplanes, rent hotel rooms, and use taxis to visit and meet
with confidential sources. Any suggestion that a press privilege
would protect against the grand jury's ability to subpoena that
evidence from third parties would be work a major inroad into the
government's compelling interest in tracing the origins and nature
of such disclosures distinguishes this investigation from the mine
run of cases raising claims of a reporter's privilege.
33
grand jury's investigatory functions. ^13 See Reporter's Committee
v. AT&T, 593 F.2d 1030, 1048-1049, 1053 (D.C. Cir. 1978) (rejecting
claimed right of reporters to advance notice of subpoenas issued to
telephone service provider). Accordingly, there is substantial
reason to question whether a reporter's privilege claim can even be
asserted in the present case. See Gov't C.A. Br. 46-50 (arguing
against recognition of such a claim). The existence of that
threshold issue amplifies the reasons for finding no reasonable
probability that certiorari would be granted in this case. ^14
13
The court of appeals relied on circuit precedent in holding
that a reporter can assert a privilege in material in the hands of
a third party "so long as the third party plays an `integral role'
in reporters' work." 459 F.3d at 168. The court was willing to
say only that "arguably" that analysis would not cover "lodging,
air travel, and taxicabs." Id. at 168 n.3. But the logic of the
court's analysis carries a broad potential to reach a variety of
records held by third parties, unjustifiably giving the press a
privilege vastly more protective than any other privilege.
14
Two additional threshold issues further decrease the
suitability of this case for certiorari review. First, the court
of appeals held that the Declaratory Judgment Act permitted the
district court to entertain this action, notwithstanding the
existence of Federal Rule of Criminal Procedure 17(c), which
specifically provides a means to move to quash a grand jury
subpoena. Second, the court of appeals held that the district
court did not abuse its discretion in entertaining this declaratory
judgment action, notwithstanding the existence of a plainly more
appropriate forum: the district court in the Northern District of
Illinois supervising the underlying grand jury investigation. 459
F.3d at 167. Resolution of either of those threshold issues
against applicant would obviate the need to consider the questions
applicant seeks to raise.
34
B. The Balance of Equities And The Public Interest Weigh
Heavily Against Granting a Stay of the Mandate
In addition to applicant's inability to demonstrate that this
Court would grant review and reverse the court of appeals'
decision, there is additional and highly significant reason for
denying a stay: the balance of equities strongly favors such a
denial. The government is pursuing a criminal investigation of the
utmost importance, and further delay threatens to thwart the grand
jury's ability to complete its vital work. The harm to applicant's
interests, in contrast, is far more attenuated than the application
acknowledges.
1. As the government informed the court of appeals, the five-
year statute of limitation on substantive criminal offenses
relating to the disclosure of confidential information concerning
asset freezes and searches of HLF and GRF will expire on December
3 and 14, 2006, respectively. While other potential criminal
charges may remain, it would be extraordinarily injurious to the
public interest to permit the statute of limitations to expire
without permitting the grand jury to do its work to consider any
and all crimes that may have been committed in this sensitive and
significant case. See United States v. R. Enterprises, Inc., 498
U.S. 292, 297 (1991) ("The function of the grand jury is to inquire
into all information that might possibly bear on its investigation
until it has identified an offense or has satisfied itself that
none has occurred."); Branzburg, 408 U.S. at 701 ("A grand jury
35
investigation is not fully carried out until every available clue
has been run down and all witnesses examined in every proper way to
find if a crime has been committed.") (internal quotation marks
omitted).
In this case, the court of appeals made clear that "[t]he
grand jury * * * has serious law enforcement concerns as the goal
of its investigation." 459 F.3d at 170. It also emphasized the
centrality of the reporters' information to that inquiry: "the
unique knowledge of the reporters is at the heart of the
investigation, and there are no alternative sources of information
that can reliably establish the circumstances of the disclosures of
grand jury information and the revealing of that information to
targets of the investigation." Id. at 171. Reviewing applicant's
telephone records is thus essential to the grand jury's work.
Under those circumstances, the public interest in completing the
investigation, and avoiding irreparable injury through the running
of the limitations period, is paramount to respondent's claims of
irreparable harm. Staying the mandate pending the filing and
disposition of a certiorari petition, even on an expedited basis,
would surely preclude the grand jury from completing its work
before the imminent running of the limitations period.
Because of the harm faced by the government if this Court
granted a stay, applicant's reliance (Appl. 7) on In re Roche, 448
U.S. 1312 (1980 (Brennan, J.) is misplaced. In that case, a
36
reporter was held in civil contempt for failing to reveal, at a
deposition in anticipation of state judicial disciplinary
proceedings, the individuals on a list of hearing witnesses who had
served as confidential sources for the reporter's investigation of
alleged judicial misconduct. Id. at 1312-1313. In granting a
stay, Justice Brennan noted that, absent a stay, the reporter faced
either revelation of his sources or going to jail, while, with a
stay, "the judge subject to the disciplinary inquiry can obtain the
information he seeks by deposing the hearing witnesses." Id. at
1316. Justice Brennan also noted that the disciplinary committee
could alleviate any burden on the State by "continu[ing]
disciplinary proceedings until resolution of applicant's petition
for a writ of certiorari." Id. at 1316-1317. Here, neither of
those things is true: the government does not have an alternative
source for the information at issue, and delay to consider a
certiorari petition would inevitably mean that certain potential
charges would be time-barred.
2. While applicant claims irreparable injury if a stay is not
granted, any claim of harm to applicant's interests must be
analyzed carefully, in light of the specific circumstances of this
case. Such an analysis reveals only minimal inroads on applicants'
interests, at best.
The government sought third-party telephone records pertaining
to applicant only after exhausting all reasonable alternative means
37
and engaging in a thorough deliberative process within the
Department of Justice. See 459 F.3d at 164; 28 C.F.R. 50.10
(Department of Justice Guidelines for Issuance of Subpoenas to
Members of the News Media); see also 382 F.Supp.2d at 481-484
(describing the Department of Justice's Guidelines in the course of
holding that they do not confer privately enforceable rights).
Pursuant to this policy, the Department of Justice issues media-
related subpoenas only when necessary to obtain important, material
evidence that cannot be reasonably obtained through other means.
The painstaking process and internal discretion employed by the
Department of Justice in this area reduces any claims of broad harm
to the press from denying a stay in this case. ^15
Further undermining any suggestion of sweeping harm to the
press is the context of the reporters' actions in this case. The
government's criminal inquiry in this instance responded to highly
unusual circumstances. In the district court, applicants'
reporters asserted that, in the wake of the September 11, 2001,
attacks, they wrote 78 articles for the New York Times concerning
terrorism and related threats, "dozens of which articles * * *
contain information attributed to confidential sources." 382
F.Supp.2d at 499. Yet the vast majority of those articles
15
See Branzburg, 408 U.S. at 706-707 (noting the Department's
Guidelines and observing that "[t]hese rules are a major step in
the direction the reporters herein desire to move" and "may prove
wholly sufficient to resolve the bulk of disagreements and
controversies between press and federal officials").
38
triggered no governmental inquiry to applicant whatsoever. What
provoked the current inquiry were their phone calls to HLF and GRF
seeking comment on imminent, non-public law enforcement action. As
the court of appeals concluded: "We see no danger to a free press"
in denying application of the privilege to applicant here;
"[l]earning of imminent law enforcement asset freezes/searches and
informing targets of them is not an activity essential, or common,
to journalism." 459 F.3d at 171; id. at 171 n.5 ("we see no public
interest in having information on imminent asset freezes/searches
flow to the public, much less to the targets").
The New York Times asserts that, "[w]ithout a stay, the
government would immediately be entitled to obtain and review the
telephone records it seeks which will reveal the identity of
numerous confidential sources of The Times and its reporters."
Appl. 7. But the court of appeals provided a means to alleviate
such claims of "overbreadth" on remand to the district court. The
court remanded the case "without prejudice to the district court's
redaction of materials irrelevant to the investigation upon an
offer of appropriate cooperation." Id. at 174. Nothing inherent
in this investigation makes it necessary for the government to
review telephone records that "would reveal the identities of
dozens of confidential sources that have no relationship whatsoever
to the government's investigation" (Appl. 4) unless applicant
makes such a review necessary by failing to cooperate. Appropriate
39
cooperation in this context, of course, must give the government a
full and expeditious opportunity to identify phone numbers that are
connected with the leaks and disclosures to the targets in this
case. It is essential that any such narrowing process occur
promptly, in light of the severe deadlines that the grand jury
faces. But consistent with those requirements, applicant has the
power to limit the extent of disclosure of confidential-source
telephone numbers to those that are relevant to the present
investigation.
As for the broader claims of irreparable harm to the news
gathering process, applicant offers the same arguments and claims
that were advanced in Branzburg. 408 U.S. at 693-694. Events
since 1972 confirm the conclusions the Court drew in that case:
the occasional disclosure of confidential sources inlegal
proceedings does not have the dire consequences hypothesized by
reporters. Investigative journalism continues to flourish. See,
e.g., 382 F.Supp.2d at 498 (describing, inter alia, exposure of
Watergate through information from "Deep Throat"; revelation
improper activities during the Carter presidency; reporting on the
Iran/Contra affair; and exposure of information concerning Abu
Ghraib all of which depended in part on confidential sources).
Experience shows that requiring the media to identify sources when
necessary to conduct thorough and complete grand jury
investigations has not restricted the free flow of information to
40
the press and certainly not to a degree that outweighs the public
interest in the truth-seeking function of grand jury
investigations.
In sum, balancing the significant harm to the public interest
in effective grand jury investigations and fair enforcement of the
criminal law against the attenuated harm to the news gathering
process, the scales tip decidedly against granting a stay in this
case.
CONCLUSION
The application for a stay of the mandate pending the filing
of a petition for a writ of certiorari should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DEBRA RIGGS BONAMICI
Assistant United States Attorney
NOVEMBER 2006
Wednesday, November 22, 2006
Fitzgerald Interlocutory Appeal re: Admissibility of CIPA Material [Doc 204]
Following my comments, below, is the text of five docket entries, the text of Walton's District Court Order denominated Docket No. 190, and the text of the government (Fitzgerald's) appeal denominated Docket No. 204. The "Accompanying Memorandum Opinion," Docket No. 191, is presently under seal.
Redacted Memoradum Opinion Issued on December 1
Why would Fitzgerald appeal Walton's order of November 15? A first impression is apt to be "because Fitzgerald thinks Walton gave Libby too much evidence," but that isn't necessarily so. With Walton's rulings (regarding the list of admissible evidence, substitutions for classified information, and court's rationales for accepting substitutions and rejecting evidence) being under seal, there's not much to base an opinion on, but I'm game to speculate anyway.
Despite his Memorandum on November 16 [Doc 197], it's just as likely, in my opinion, that Fitzgerald is satisfied with Walton's specific rulings in this case, and merely aims to have the CIPA issues conclusively resolved before trial, to take the issues of "'use, relevance, and admissibility' at trial of certain classified documents and information" away from Libby, in the event the jury reaches a guilty verdict. It makes sense from the prosecution's point of view, to reduce the risk (and cost) of a post-trial appeal, and to get authoritative confirmation that the Court's evidentiary rulings relating to the application of CIPA are on sound and firm legal ground before conducting the trial. See also, Section 7 of the Classified Information Procedures Act (alternate citation) and Section 2054 of the United States Attorneys' Criminal Resource Manual.
Walton's Court has modified it's rationale for holding some substitute evidence admissible and sufficient, which indicates a certain amount of legal volatility - an amount that Fitzgerald would reasonably prefer to reduce now rather than during the trial.
A "big picture" reason for taking the appeal is to create an opportunity to resolve a split between circuits regarding the standard to be applied when evaluating the admissibility of classified information. CIPA is an important statute in prosecuting terrorism cases, and the government is persistently advancing the argument that the courts must balance the probative worth of the evidence against the potential harms to national security.
See McVeigh's 3/96 Memo Summarizing The Classified Information Procedures Act for a dated summary of the split between Circuits, and FN 26 in this June 2006 Law Review article by Ellen Yaroshefsky citing splits at both the discovery and admissibility stages of CIPA. Walton's September 21, 2006 Memorandum Opinion and Order [Doc 145], expressly rejected the prosecution-proposed three-step inquiry at the CIPA 6(a) (discovery) stage:
a classified document (or testimony based on a classified document) should be precluded from use at trial unless the Court determines
- that the document is relevant;
- that the document is "helpful to the defense," and
- that the defendant's interest in disclosure of the document outweighs the government's need to protect the classified information.
In an Order dated November 16 [Doc 193], Judge Walton expressed that a balancing involving national security interests on the one hand is inappropriate at the CIPA 6(c) (sufficiency of substitutions) stage, reversing his previous [Nov 13, Doc 178] statement, "Although Section 6(c) of the CIPA does not list specific factors to be considered when determining whether a substitution is acceptable, a court must at bottom balance the government's national security interests in protecting classified information against the defendant's ability to put on his defense."
The "big picture" can play in a range of cases, see, e.g., Judge issues secret ruling about secrets in Nacchio case, where CIPA is being used to keep evidence of classified government contracts with Qwest out of an insider trading trial. "The defense has said Nacchio was aware of classified government contracts awarded to Qwest and of plans for future government business dealings with the Denver-based company." NSA wiretapping perhaps?
For the case in hand, this appeal is an opportunity for Libby to get a more favorable ruling (a ruling that permits him to present increased volume and detail of events in the Office of the Vice President, other than those directly involved in Wilson's trip to Niger - evidence intended to create a firm impression of "Libby being fully preoccupied" in the minds of the jurors). Libby probably holds that his defense has been hamstrung by a stilted application of CIPA. There is evidence that the government's proposed substitutions are sparse. Walton's Opinion of November 13 ("balancing" rationale since vacated) concluded with, "the substitutions currently proposed by the government will not provide the defendant with substantially the same ability to make his defense. Accordingly, the government must go back to the drawing board and come forth with a more balanced proposal."
---===---
The timeline for resolution of the pre-trial interlocutory appeal is indefinite, and depends in part on the workload at the Circuit Court for the District of Columbia.
In the case of James H. Giffen in the Southern District of New York, the government took an interlocutory CIPA Section 7 appeal to the 2nd Circuit on October 25, 2005.
Invoking the interlocutory appeal provision contained in §7 of CIPA, the government appealed the district court's decision. Government briefs filed with the U.S. Court of Appeals for the Second Circuit stated that prosecutors may be forced to drop the case against Mr. Giffen because of Judge Pauley's decision allowing Mr. Giffen to present a public authority defense.The government asserted that many of the highly classified documents sought by the defense were irrelevant and that Mr. Giffen's review of the top-secret information would jeopardize national security interests and place the government in an "untenable" position. The defense responded simply that Mr. Giffen believed himself to be working for the CIA and other U.S. government agencies and, therefore, is entitled to assert a public authority defense.
Oral argument in that appeal was heard on Jan. 25, 2006, and as of October 26, 2006, the 2nd Circuit had not rendered its decision.
11/15/2006 189 ORDER as to I. LEWIS LIBBY; that the government shall complete a classification review of this Court's November 15, 2006 Opinion by December 1, 2006. That the government shall complete a classification review of the pleadings filed under seal by January 15, 2007, and the transcripts of the classified proceedings by March 2, 2007. That the government shall provide redacted copies of these items to the Court immediately upon their completion; Signed by Judge Reggie B. Walton on 11/15/06. (erd) (Entered: 11/15/2006)---===---
11/15/2006 190 ORDER as to I. LEWIS LIBBY; that the defendant's use of classified information and documents at trial shall be limited as set forth in the accompanying Memorandum Opinion; Signed by Judge Reggie B. Walton on 11/15/06. (erd) (Entered: 11/15/2006)
---===---
11/15/2006 191 MEMORANDUM OPINION as to I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 11/15/2006)
---===---
11/22/2006 204 NOTICE OF APPEAL (Interlocutory) by USA as to I. LEWIS LIBBY re 190 Order, 191 Memorandum Opinion. Fee Status: IFP, Govt. Parties have been notified. (erd) (Entered: 11/22/2006)
11/22/2006 Transmission of Notice of Appeal and Docket Sheet as to I. LEWIS LIBBY to US Court of Appeals re 204 Notice of Appeal - Interlocutory (erd) (Entered: 11/22/2006)
The order being appealed is contained in Doc 190. There is no indication that the government objects to the Doc 189 "classification review" Order of the same date.
Doc 190 reads ...
On September 27, 2006 this Court commenced a series of hearings pursuant to Section 6(a) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III, § 6(a)(2000), to address the "use, relevance, and admissibility" at trial of certain classified documents and information the defendant intends to use as part of his defense. For the reasons set forth in the accompanying Memorandum Opinion, it is hereby,ORDERED that the defendant's use of classified information and documents at trial shall be limited as set forth in the accompanying Memorandum Opinion.
SO ORDERED this 15th day of November, 2006.
Finally, with that background, the text of the November 22 paper that initiates an appeal from the Opinion (Ruling) and Order of November 15 ...
Case 1:05-cr-00394-RBW Document 204 Filed 11/22/2006 Page 1 of 1
United States District Court for the District of Columbia
UNITED STATES OF AMERICA )
)
vs. ) Criminal No. 05-CR-394
)
I. LEWIS LIBBY, also known as )
Scooter Libby )
_______________________________________)
NOTICE OF APPEAL
Name and address of appellant United States of America
Name and address of appellant's attorney Patrick J. Fitzgerald, Special Counsel
United States Attorney's Office
219 South Dearborn, 5th Floor
Chicago, Illinois 60604
Offense: 18 U.S.C. §§ 1503, 1001(a)(2), and 1623
Concise statement of judgement or order, giving date, and any sentence
Order and Memorandum Opinion filed and entered on the docket on November 15, 2006,
pursuant to CIPA § 6(a) of the Classified Information Procedures Act, 18 U.S.C.
App. III, § 6(a)(2000), determining the use, relevance and admissibility of certain
classified information which defendant seeks to disclose at trial.
Name and institution where now confined, if not on bail: N/A
I, the above named appellant, hereby appeal to the United States Court of Appeals for the
District of Columbia Circuit from the above-stated judgement.
11/22/06 United States of America
-------------------------- ------------------------------------------
DATE APPELLANT
Patrick J. Fitzgerald / Kmk
CJA, NO FEE __N/A___ ------------------------------------------
PAID USDC FEE __N/A___ ATTORNEY FOR APPELLANT
PAID USCA FEE __N/A___
Does Counsel wish to appear on appeal? Yes
Has counsel ordered transcripts? Yes
Is this appeal pursuant to the 1984 Sentencing Reform Act? No
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