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Friday, November 17, 2006

Fitzgerald Motion re: NIE Evidence (Paper 185)

     Case 1:05-cr-00394-RBW           Document 185         Filed 11/15/2006       Page 1 of 8



                           THE 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 TO PRECLUDE EVIDENCE OR ARGUMENT THAT HIS
     DISCLOSURE OF THE OCTOBER 2002 NIE WAS ILLEGAL OR IMPROPER

       The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special

Counsel, respectfully submits this Response to Defendant's Motion to Preclude Evidence or

Argument That His Disclosure of the October 2002 National Intelligence Estimate (NIE) Was Illegal

or Improper.

       As discussed below, the government has no intention, and has never expressed an intention,

of arguing that defendant's disclosure of the previously-classified October 2002 NIE was illegal or

improper. What the government does intend to establish is that the circumstances surrounding the

disclosure ­ including the fact that the information disclosed was specially de-classified by the

President, through the Vice President, and the fact that the Vice President specifically authorized

disclosure of the information to a reporter ­ made the conversation in which the disclosure was made

unique and memorable to defendant. That conversation was a meeting with New York Times

reporter Judith Miller at St. Regis Hotel on July 8, 2003, in which defendant and Ms. Miller also

discussed the fact that Valerie Wilson worked at the CIA as part of his response to criticisms of the

White House's assertions regarding purported Iraqi efforts to acquire uranium from Niger. Thus,

     Case 1:05-cr-00394-RBW            Document 185         Filed 11/15/2006       Page 2 of 8



rather than "fleeting" and "inconsequential," ^1 the conversation between defendant and Miller was

unique and memorable ­ but not illegal.

       However, as discussed below, the government's agreement not to argue that defendant's

disclosure of the NIE was illegal should not be understood as an agreement to remain mute if the

defense seeks to affirmatively represent as fact to the jury statements that may not be true or

accurate.

I.     Background

       As defendant acknowledges in his motion, Def. Mot. at 1, defendant disclosed to reporters

certain portions of an October 2002 NIE that set forth the intelligence community's assessment of

Iraq's potential possession of weapons of mass destruction. One of those disclosures occurred on

July 8, 2003, when defendant met with Ms. Miller. In that meeting with Ms. Miller, defendant

discussed, among other things, Mr. Wilson's Op-Ed, Mr. Wilson's trip to Niger, portions of the

October 2002 NIE ­ and the CIA employment of Ms. Wilson. When the topic of the meeting

specifically turned to Mr. Wilson, defendant asked that Ms. Miller characterize defendant, for

purposes of attribution, as a "former Hill staffer" rather than as an administration official.

       Defendant described to the grand jury that he was authorized by the Vice President to

disclose the October 2002 NIE to the press some time before the July 8th meeting with Ms. Miller.

When the Vice President initially directed defendant to disclose the NIE's contents to the press,

defendant expressed concern regarding disclosure of the NIE because it was classified. The Vice




       1
       See Def. Resp. to Govt. Motion in Limine at 4 (contending that defendant "had fleeting,
inconsequential conversations with reporters regarding Ms. Wilson") (Docket No. 179).

                                                  2

      Case 1:05-cr-00394-RBW            Document 185        Filed 11/15/2006       Page 3 of 8



President advised that he would obtain authority to disclose from the President. Later, the Vice

President informed defendant that the President had authorized disclosure of the NIE.

          After speaking with the Vice President, defendant asked David Addington, then-Counsel to

the Vice President, whether the President had the authority to de-classify classified information. Mr.

Addington confirmed that the President had such authority, a proposition that the government does

not dispute.

II.       Analysis

          The government has never charged, argued, nor intended to argue that the disclosure of the

information contained in the NIE by defendant to reporters was illegal. Nor have we argued or

intended to argue that such disclosure was otherwise wrongful. Indeed, the government has never

disputed, nor intended to dispute, that Executive Order 12958 allows the President to declassify

information for public dissemination. See also Department of Navy v. Egan, 484 U.S. 518, 527

(1988).

          Rather, the government will argue that the circumstances surrounding defendant's disclosure

of the 2002 NIE tend to show, see Fed. R. Evid. 401, that responding to Mr. Wilson's allegations and

the criticism of the White House's statements about Iraq and uranium was a sufficiently high priority

in defendant's mind to warrant declassification and dissemination of classified information to rebut

that criticism, and that these events were sufficiently distinct to be memorable. As this Court is well

aware, defendant's primary defense is that he was so preoccupied with other matters that he

misremembered how he learned of Ms. Wilson's CIA employment (to the point of creating a

conversation that did not occur) and misremembered to whom he disclosed that information. This

evidence shows that the conversations between defendant and Ms. Miller were important and


                                                   3

       Case 1:05-cr-00394-RBW          Document 185         Filed 11/15/2006       Page 4 of 8



memorable, and not so drowned out by the other matters that he misremembered how he learned of

Ms. Wilson's employment and to whom he disclosed that information.

III.    Timing of the De-Classification

        The timing of the de-classification relative to defendant's disclosure of the NIE to reporters

is unclear. Initially, defendant testified in the grand jury that he was authorized to disclose the

information to Ms. Miller shortly before their July 8, 2003 meeting. Defendant's discussion with

Mr. Addington concerning presidential authority to de-classify occurred sometime after July 6, 2003,

according to Mr. Addington. However, the defendant also disclosed the NIE to Washington Post

associate editor Bob Woodward on June 27, 2003, and to New York Times reporter David Sanger

on July 2, 2003. In both conversations, defendant disclosed information from the NIE ­ specifically,

the NIE's conclusion that Iraq was vigorously trying to procure uranium ­ which was substantially

less information than disclosed to Ms. Miller on July 8. Defendant later testified in the grand jury

that he was unsure whether, by the time of the July 2 conversation with Mr. Sanger, defendant had

(a) received authorization from the Vice President to disclose the NIE; (b) relied on publicly-made

statements by the then-National Security Advisor; or (c) just "slipped." ^2 Defendant testified that he

recalled a "go-stop-go" sequence in discussions concerning authorization to disclose the NIE, that

is, he was authorized to disclose, then he was instructed to hold off, and then later told again to

disclose.

        Thus, there is ambiguity concerning when the de-classification of the NIE actually occurred.

At the May 5, 2006 motions hearing before this Court, the government agreed that it would not make



        2
         Defendant was not asked in the grand jury about the disclosure to Bob Woodward because
that information arose after defendant's grand jury appearances.

                                                  4

     Case 1:05-cr-00394-RBW             Document 185         Filed 11/15/2006       Page 5 of 8



an issue of the fact that any disclosure prior to the authorization violated the law, but noted that as

a result of the ambiguity regarding timing, the government could not be forced to stipulate that

defendant was authorized as of particular dates in June or early July. 5/5/06 Tr. at 68 ("I don't know

what happened before so I am not going to stipulate that he was authorized on June 23 or July 2.").

Government counsel also expressed concern that defendant not be allowed to make, unrebutted, an

affirmative argument that defendant never disclosed classified information without authorization,

and the Court recognized that the door to contrary evidence could be opened depending on the

defense argument. ^3 5/5/06 Tr. at 73-74. Nevertheless, the government will not argue that the

defendant's disclosures of the 2002 NIE were illegal or improper.

       The government does not know what position the defense will advance at trial as to the

timing of the relevant discussions authorizing the NIE's disclosure, and the timing issue may be

important because defendant did ask the Counsel to the Vice President, some time after July 6,

questions about what paperwork would be involved when the spouse of a CIA employee traveled

abroad (a reference to Ms. Wilson and to Mr. Wilson's trip to Niger), together with a question about

the President's de-classification authority. Any questions about when the authorization was given

in relation to the various discussions with journalists Woodward, Sanger, and Miller would be



        3
        Defendant complains in his motion that this Court denied his discovery request for
documents relating to the de-classification, Def. Mot. at 2, but he had already received all such
documents in the government's possession (e.g., defendant's own notes), see 5/5/06 Tr. at 63-64, 68
("There's no other discovery we have on it [the de-classification] so it's not like we're sitting on
documents or exhibits"). In order to allow defendant to assess the risks of arguing that he had clear
authority to disclose, the Court directed that the government disclose to the defense all the
information in its possession concerning the timing of the de-classification and the relevant
conversations, see 5/5/06 Tr. at 71. Consistent with this Court's oral ruling, id. at 71, the government
provided, on September 7, 2006, a letter to defense counsel setting forth the information from the
witnesses's interviews concerning the de-classification.

                                                   5

     Case 1:05-cr-00394-RBW           Document 185        Filed 11/15/2006       Page 6 of 8



pertinent to establishing when conversations regarding Ms. Wilson occurred. However, if any

evidence is adduced at trial concerning the possibility that defendant engaged in a limited but

premature disclosure of the NIE, the government will refrain from arguing that defendant's conduct

was illegal, and will consent to an appropriate instruction. But what defendant cannot do is to take

the government's agreement not to make an issue of the possible premature disclosure of the NIE

and use that agreement to insulate from all challenge the potential defense argument that defendant

was clearly authorized to disclose the NIE each time defendant did so ­ the facts simply do not bear

that out. After all, defendant himself has already indicated, in his grand jury testimony, that he

thought the de-classification might have happened later. We should not be foreclosed from asking

questions if he or his counsel change his account. Yet Mr. Wells indicated at the May 5, 2006

hearing that "when [defendant] talked to Mr. Woodward [on June 27] he did it with the

understanding that he had been authorized." 5/5/06 Tr. at 73. The government should not be

muzzled from raising any questions about the de-classification's timing. ^4 We will not, however,

argue from the inconsistency that defendant committed a crime when he discussed the NIE. At




       4
         The government has consistently stated that the government would not make the de-
classification an issue, so long as defendant does not make it an issue or open the door. 5/5/06 Tr.
at 68-69, 74. Putting the same point another way, the government's consistent concern has been that
the defense will take the government's agreement not to argue a certain factual issue as an open
invitation for the defense to argue for the very different proposition that the government has
conceded the fact and will not attempt to rebut the issue raised by the defense. 5/5/06 Tr. at 74
(government express concern that "I say, well, we're not going there [the de-classification timing]
and then people stand up and say the government agrees X, Y, and Z, and start tying our hands.").
For example, the defense claims the ability to make "strong representations to the jury that he was
authorized by the Vice President with the understanding that the President also had declassified the
document," 5/5/06 Tr. at 65-66, and yet presumably would prevent the government from arguing that
the timing was not clear, even after the defense ­ not the government ­ injects what would otherwise
be a dormant issue.

                                                 6

     Case 1:05-cr-00394-RBW           Document 185         Filed 11/15/2006      Page 7 of 8



bottom, the government simply wishes to make clear that it cannot affirmatively agree that each time

defendant disclosed the NIE, he was authorized to do so.

                                         CONCLUSION

       For the reasons discussed above, the government respectfully requests that this Court deny

defendant's motion as moot.

                                                     Respectfully submitted,

                                                               /s/
                                                     PATRICK J. FITZGERALD
                                                     Special Counsel
                                                     219 South Dearborn Street
                                                     Chicago, Illinois 60604
                                                     (312) 353-5300


Dated: November 14, 2006




                                                 7
     Case 1:05-cr-00394-RBW           Document 185        Filed 11/15/2006       Page 8 of 8



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 14th day of November, 2006, I caused true and

correct copies of the foregoing to be served on the following parties by electronic mail:

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

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

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

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

                                                             Patrick J. Fitzgerald
                                                             Special Counsel
                                                             U.S. Department of Justice
                                                             1400 New York Ave., N.W.
                                                             Washington, D.C. 20530
                                                             202-514-1187

                                                             By:      /s/
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel



                                                 8

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