No Easy Answers

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

1. that the document is relevant;
2. that the document is "helpful to the defense," and
3. 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)

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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)

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11/15/2006 191 MEMORANDUM OPINION as to I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 11/15/2006)

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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

posted by cboldt  # 11/22/2006 07:34:00 PM