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Friday, November 17, 2006

Fitzgerald Motion re: Reporters (Paper 192)

    Case 1:05-cr-00394-RBW             Document 192         Filed 11/16/2006       Page 1 of 14



                           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 MEMORANDUM IN OPPOSITION TO
        DEFENDANT'S MOTION TO EXCLUDE EVIDENCE RELATING TO
              REPORTERS' FIRST AMENDMENT LITIGATION,
      CONTEMPT PROCEEDINGS, AND JUDITH MILLER'S INCARCERATION

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

Counsel, respectfully submits the following memorandum of law in opposition to the Motion of I.

Lewis Libby to Exclude Evidence relating to Reporters' First Amendment Litigation, Contempt

Proceedings, and Judith Miller's Incarceration.

                                         INTRODUCTION

       Defendant is charged with obstruction of justice, perjury, and making false statements to

investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001, in connection with an investigation

concerning leaks to reporters of previously-classified information regarding the employment of

Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson. During the investigation of

this case, several reporters refused to testify in response to grand jury subpoenas on the stated ground

that they should not be required to disclose the identity of confidential sources or information

provided to them by such sources under the First Amendment and federal common law. Ultimately,

their claims were rejected, they testified, and defendant was indicted. Defendant seeks to preclude

the government from offering any evidence related to these proceedings at trial.



                                                   1

     Case 1:05-cr-00394-RBW             Document 192        Filed 11/16/2006      Page 2 of 14



          As demonstrated below, by this motion defendant seeks free rein to offer in evidence the

waiver of confidentiality he signed with respect to his conversations with reporters, and to use it to

argue that defendant lacked a motive or opportunity to lie, and to argue that he exhorted reporters

to testify, while preventing the government from offering contrary evidence that tends to show that:

(a) at the time he first told the story about learning about Ms. Wilson's wife from Tim Russert, and

repeating the information to reporters Miller and Cooper, he had a strong reason to believe that the

reporters would never testify; and that (b) even after signing the waiver, defendant's actions

reflected, at a minimum, ambivalence about the prospect of the reporters testifying and, at worst, an

effort to color their testimony. The evidence defendant seeks to preclude is directly relevant to his

state of mind ­ the issue defendant acknowledges is the central in the case. The motion should be

denied.

                                            ARGUMENT

I.        Background

          As charged in the indictment, in early June 2003 defendant was advised by the Vice President

that, according to the CIA, former Ambassador Wilson's wife worked at the CIA and played a role

in arranging Ambassador Wilson's 2002 trip to Niger. Defendant thereafter relayed this information

to New York Times reporter Judith Miller and Time Magazine reporter Matthew Cooper. The

indictment charges that, in the intervening period between defendant's conversation with the Vice

President and his conversations with Miller and Cooper, defendant spoke with at least six

government officials about Ms. Wilson's employment and possible role in sending Ambassador

Wilson on the 2002 Niger trip.

          As it turned out, Miller did not write a story about Ms. Wilson's employment at the CIA.


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    Case 1:05-cr-00394-RBW           Document 192        Filed 11/16/2006      Page 3 of 14



Instead, that information was first publicly disclosed by Robert Novak, a reporter who learned it

from a source other than defendant. The publication of Novak's column on July 14, 2003 sparked

a firestorm of criticism regarding the "outing" of a "covert" CIA agent. Ms. Wilson's employment

was also reported in articles contributed to by Matthew Cooper and published on July 17, 2003 and

July 21, 2003.

       In connection with the investigation that ensued, defendant was interviewed by agents of the

FBI on October 14 and November 26, 2003. In his interviews, defendant admitted that he first

learned of Ms. Wilson's employment and possible role in arranging Ambassador Wilson's trip to

Niger from the Vice President, and that he spoke to New York Times reporter Judith Miller and

Time Magazine reporter Matthew Cooper about Ms. Wilson's employment in July 2003. Defendant

made the same admissions when he was interviewed on November 26, 2003.

       During the interviews, defendant provided the following details regarding his conversations

with reporters:

              (a) when he spoke to reporters Miller and Cooper on July 12, 2003, he did
       not remember having been told by the Vice President that former Ambassador
       Wilson's wife worked at the CIA and may have played a role in arranging
       Ambassador Wilson's 2002 trip to Niger;

               (b) instead, he conveyed to reporters Miller and Cooper information
       regarding Ms. Wilson which he believed he had learned during a telephone call with
       NBC News correspondent Tim Russert, who had told him on that day or the day
       before (July 11 or 12, 2003) that "all of the reporters" knew that former Ambassador
       Wilson's wife worked at the CIA;

             (c) he only remembered that the Vice President told him about Ms. Wilson's
       employment after finding a handwritten note among his records reflecting that fact;
       and

              (d) although he met with Judith Miller on July 8, 2003, he did not speak
       about Ms. Wilson during that meeting.


                                                3

    Case 1:05-cr-00394-RBW            Document 192        Filed 11/16/2006       Page 4 of 14



       At the conclusion of defendant's second FBI interview on November 26, 2003, defendant and

his lawyer were presented with a form that released reporters from any promises of confidentiality

related to conversations regarding Ambassador Joseph Wilson, his trip to Niger in February 2002,

and matters related thereto," and defendant was asked to sign the form. On January 5, 2004,

defendant signed the waiver.

       Defendant testified before the grand jury in March 2004, and provided an account of his

conversations with reporters that was essentially consistent with the details provided during his FBI

interviews.

       In May 2004, after defendant had testified before the grand jury, subpoenas were issued to

various reporters with whom defendant spoke or claimed to have spoken regarding the Wilsons.

Cooper, Miller and Russert moved to quash the subpoenas issued to them, asserting a purported

"reporter's privilege" under the First Amendment and federal common law. While all three reporters

ultimately testified, ^1 Cooper and Miller declined to do so until their claims were rejected by the

Court of Appeals and their petitions for certiorari were denied by the Supreme Court, and until they

had received personal assurances from defendant or his counsel that his waivers of confidentiality

applied to their conversations, and were voluntarily given.

       In the case of Miller, Miller did not request or receive a personal assurance from defendant

until September 2005, after she had exhausted her appeals and served 85 days in jail.



       1
           Russert testified on August 7, 2004, after defendant called and asked Russert to speak
with his lawyer, and after the government provided Russert with defendant's waiver. Cooper
testified on October 13, 2004 and July 13, 2005, after defendant's lawyer confirmed to Cooper's
lawyer that defendant's waiver was voluntary. Miller testified on September 30 and October 12,
2005. NBC reporter Glen Kessler also testified after receiving defendant's waiver.


                                                 4

      Case 1:05-cr-00394-RBW          Document 192        Filed 11/16/2006         Page 5 of 14



        After obtaining the testimony of reporters Cooper and Miller, the grand jury returned the

present indictment. As the Court is aware, the indictment charges that defendant's descriptions of

his conversations with reporters Miller, Cooper and Russert were false and misleading and that they

were made deliberately in an effort to mislead and deceive both federal investigators and the grand

jury. Specifically, the indictment charges that, contrary to defendant's account, (a) Tim Russert did

not speak with defendant regarding Ms. Wilson on July 12, 2003 but, rather, merely listened to

defendant's complaints regarding coverage by NBC correspondent Chris Matthews, (b) defendant

disclosed information regarding Ms. Wilson to Judith Miller and confirmed it to Matthew Cooper,

without any suggestion that the information had come from other reporters; and (c) defendant did

speak with Ms. Miller regarding Ms. Wilson on July 8, 2003. Although not specifically charged in

the indictment, defendant spoke with Ms. Miller regarding Ms. Wilson even earlier ­ on June 23,

2003, and provided information regarding Ms. Wilson to Ms. Miller only after seeking Miller's

commitment that she attribute the information to a "former Hill staffer."

II.     Defendant's Expectations Regarding Confidentiality are Relevant to Defendant's State
        of Mind.

        In deciding whether the government has met its burden of proving the charges beyond a

reasonable doubt, the jury will be required to determine whether defendant innocently erred or,

instead, deliberately lied when he made the charged false statements. Defendant's state of mind at

the time he made the false statements is therefore an important issue in the case and the government

obviously is entitled to present evidence relevant to defendant's state of mind.

        Defendant testified that when he spoke with reporters, he did so under the conventional

ground rules employed by reporters and their sources. In other words, defendant knew that, when



                                                 5

    Case 1:05-cr-00394-RBW            Document 192         Filed 11/16/2006       Page 6 of 14



he wanted to relay information to a reporter without being identified as the source of that

information, he need only ask that the information be used by the reporter "off-the-record," or as

"background," or that it be attributed to a "senior administration official," or similar moniker.

Defendant testified that he spoke with Miller, Cooper, and Russert under these ground rules.

       Indeed, these "ground rules," and the fact that reporters generally may be depended upon to

uphold promises of confidentiality, were well known not only to defendant but were widely reported

at the time. For example, one week before defendant's first FBI interview, the President commented

during remarks made to the press after a cabinet meeting:

       Q: Mr. President, how confident are you the investigation will find the leaker in the
       CIA case?
                       *       *      *
       THE PRESIDENT: [ ] Randy, you tell me, how many sources have you had that's
       leaked information that you've exposed or have been exposed? Probably none. I
       mean this town is a ­ is a town full of people who like to leak information. And I
       don't know if we're going to find out the senior administration official. Now, this
       is a large administration, and there's a lot of senior officials. I don't have any idea.
       I'd like to. I want to know the truth. That's why I've instructed this staff of mine to
       cooperate fully with the investigators ­ full disclosure, everything we know the
       investigators will find out. I have no idea whether we'll find out who the leaker is
       ­ partially because, in all due respect to your profession, you do a very good job of
       protecting the leakers. But we'll find out.


www.whitehouse.gov/news/releases/2003/10/20031007-2 (10/7/2003).


       Accordingly, when defendant first told investigators that he merely conveyed information he

had learned from one reporter to other reporters (and therefore could not possibly have disclosed

classified information to reporters), he had every reason to believe that it was highly unlikely that

reporters would become witnesses against him. Contrary to defendant's suggestion (Mot. 3), at that

time, defendant had not signed, or discussed, any waiver of confidentiality with respect to his

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       Case 1:05-cr-00394-RBW         Document 192         Filed 11/16/2006        Page 7 of 14



conversations with reporters.

         In support of his motion, defendant argues that the argument that the confidentiality with

which he could expect his conversations to be treated by reporters emboldened him to make false

claims about those conversations is "implausible." But the only basis he offers for this claim is

(presumably) the testimony he will offer at trial (that he expected the reporters to cooperate and

expected that the reporters testimony would exonerate him (Mot. 3)), and inferences he seek the jury

to draw from all the evidence. The purpose of a trial is to seek the truth. As this Court has noted

with respect to defendant's memory defense, relevance is not properly determined based on the

Court's ­ much less the opposing litigant's ­ assessment of its persuasiveness. Defendant is not

entitled to preclude the government from offering relevant evidence of opportunity and motive, and

then argue to the jury that none exists.

III.     The Government is Entitled to Rebut Defendant's Claim that he "Exhorted" Reporters
         to Testify.
         The government will not dispute the fact that defendant voluntarily signed a waiver of

confidentiality with respect to pertinent conversations with reporters in January 2004, or that in some

instances, his counsel gave assurances to reporter witnesses that defendant's waiver was voluntary.

However, the government will dispute an inference defendant will ask the jury to draw from this

conduct ­ that defendant lacked any motive to lie or consciousness of guilt. And the government

will offer evidence that tends to show that defendant did not, as he claims, at all times and in every

respect "exhort" reporters to testify. Defendant is not entitled to prevent the government from

rebutting inaccurate and misleading arguments he intends to make to the jury.

         Specifically, before and during Ms. Miller's confinement, defendant was put on notice that


                                                  7

     Case 1:05-cr-00394-RBW             Document 192         Filed 11/16/2006        Page 8 of 14



she did not regard his waiver as voluntary. Ms. Miller and her counsel made many public statements

to this effect, inside and outside of court, and the contrast between Matthew Cooper choosing to

testify after receiving personal assurances from defendant and Ms. Miller choosing to go to jail after

receiving none was unmistakable. Press reports, which the defense closely followed according to

defendant's lawyer, expressed the view that defendant had been less than cooperative in failing to

provide Miller with a personal waiver. See, e.g., Reuters September 8, 2004 article (quoting Miller's

attorney as commenting, "She is there (in jail) for a reason. At this time, the reason is still there. She

made a promise and, unless properly released from her promise by her source, she has no choice but

to continue to take the position that she's taking,")

        Indeed, on August 8, 2005, defendant received a letter from certain members of Congress

asking him give Miller a personal assurance and waiver:

        As you are aware, in the matter of the ongoing investigation of the leaking of the
        covert status of a Central Intelligence Agency operative (Valerie Wilson), the
        President has promised that his Administration will "fully cooperate" with the
        investigation. We are concerned that your conduct may have fallen far short of the
        President's pledge of full cooperation. . . . Your failure to grant [a personal] waiver
        to Ms. Miller has apparently led her to refuse to testify about her conversation(s) with
        you and, in turn, led to her recent incarceration for civil contempt. Only your
        willingness to step forward and permit Ms. Miller to testify about your July 8
        meeting and any other communications with her will allow the whole truth to be
        known. We urge you to immediately and publicly rectify this by issuing a personal
        waiver to Ms. Miller.


August 8, 2005 Letter from John Conyers and other Members of Congress.

        Yet defendant did nothing.

        Finally, after discussions that were initiated by an inquiry from Ms. Miller's counsel,

defendant provided the personal assurance Miller had been waiting for, orally and in writing. But


                                                    8

     Case 1:05-cr-00394-RBW             Document 192         Filed 11/16/2006         Page 9 of 14



defendant did not stop at that. He commented on the testimony of other reporters:

         . . . as I am sure will not be news to you, the public report of every other reporter's
        testimony makes clear that they did not discuss Ms. Plame's name or identity with
        me, or knew about her before our call.


9/15/05 letter from defendant to Judith Miller, attached as an exhibit to defendant's motion.

        Defendant argues that the presentation of this evidence will lead to a "trial within a trial," that

is, it would necessitate his calling as witnesses for the defense counsel for Ms. Miller and even the

Special Counsel. The defense proposes instead to have an "unopposed trial" within a trial. The

defendant would like the Court to order that he can freely argue and testify that he had no motive to

lie, when there is ample evidence that he did have such a motive, and to allow him to testify and

argue that he exhorted reporters to testify, when he did somewhat less than that. And of the course,

the defendant would like the Court to order the government to sit mute about these issues during the

trial. If there is disputed testimony, so be it. That is what trials are for. But there should be no great

delay. The reporter witnesses by their own published accounts will agree that they did not testify

until they had received a waiver they were persuaded was voluntary. The defense and government

both agree that Mr. Libby executed a waiver as requested. There is no need to call counsel for

various witnesses or the government. Moreover, it is unlikely that that evidence would even be

admissible. See United States v. Fonseca, 435 F.3d 369, 374 (D.C. Cir. 2006)((evidence at issue was

offered to challenge a witness' credibility and did not involve the defendant or the charged offenses);

E.g., United States v. Regan, 103 F.3d 1072, 1083 (2d Cir.1997)(the testimony of the prosecutor may

only be presented in a criminal trial where defendant demonstrates compelling and legitimate need

for evidence which is unavailable from any other source). See also United States v. Ziesman, 409


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      Case 1:05-cr-00394-RBW             Document 192      Filed 11/16/2006       Page 10 of 14



F.3d 941, 950 (8th Cir. 2005); United States v. Wooten, 377 F.3d 1134, 1143 (10th Cir. 2004); U.S.

v. Regan, 103 F.3d 1072, 1083 (2d Cir. 1997); United States v. Oreto, 37 F.3d 739, 746 (1st Cir.

1994); United States v. Ashman, 979 F.2d 469, 494 (7th Cir. 1993); United States v. Roberson, 897

F.2d 1092, 1098 (11th Cir.1990); United States v. Prantil, 764 F.2d 548, 554 (9th Cir. 1985); United

States v. Weinberger, Crim. A. No. 92-235, 1992 U.S. Dist. LEXIS 14534, at *14-15 (D.D.C. Sept.

29, 1992).

        In sum, defendant's effort to require the government to stand mute while the defense makes

assertions and arguments that are contradicted by the facts should be rejected.

IV.     Evidence Regarding the Reporters' Litigation is Relevant to Explain Miller's Failure
        to Recall her June 23, 2003 Meeting with Defendant, and to Rebut Arguments of Bias.


        Defendant has indicated that he intends to elicit testimony regarding the fact that, during her

first grand jury appearance, reporter Miller had no memory of discussing Wilson's wife with

defendant on June 23, 2003, and did not recall it until she found her notes of that conversation. See

5/16/06 Tr. 7. The government is entitled to offer in evidence information that bears on Ms.

Wilson's memory. Specifically, Miller's first grand jury appearance occurred on the morning after

being released from 85 days in jail, and the fact that Miller did not have the opportunity to review

all of her notes before that appearance. Defendant has vociferously argued that he is entitled to

present an avalanche of evidence detailing events and issues with which he dealt, and evidence of

his lack of opportunity to review notes, in order to persuade the jury that any errors in his testimony

were the product of memory failure. Yet he seeks to exclude evidence of a lengthy and obviously

stressful experience suffered by a witness, and evidence of a witness's lack of access to notes, as

"irrelevant to any issue in the case."

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    Case 1:05-cr-00394-RBW              Document 192      Filed 11/16/2006       Page 11 of 14



       Defendant has also indicated that he intends to explore the issue of bias of the reporter

witnesses on cross examination (3/10/06 Tr. 96)("the credibility of Mr. Cooper with respect to his

description that Mr. Libby confirmed Mr. Plame's employment by the CIA is going to be very much

at issue in this case.") Defendant is certainly entitled to do this. But the government is likewise

entitled to explore issues of bias ­ and to offer evidence that tends to undermine any suggestion that

its witnesses are biased against defendant or in favor of witnesses. Evidence that the reporters spent

more than a year battling the government in court and, in Miller's case, that the battle ended only

after she suffered 85 days in jail, strongly rebuts an argument of bias in favor of the government.

The government is entitled to use it.

                                           CONCLUSION

       For all of the foregoing reasons, the government respectfully requests that this Court deny

defendant's motion.

                                                       Respectfully submitted,



                                                                  /s/
                                                       PATRICK J. FITZGERALD
                                                       Special Counsel
                                                       DEBRA RIGGS BONAMICI
                                                       KATHLEEN M. KEDIAN
                                                       Deputy Special Counsels


                                                       Office of the United States Attorney
                                                       Northern District of Illinois
                                                       219 South Dearborn Street
                                                       Chicago, Illinois 60604

                                                 11

   Case 1:05-cr-00394-RBW   Document 192      Filed 11/16/2006   Page 12 of 14



                                           (312) 353-5300


Dated: November 15, 2006




                                    12

    Case 1:05-cr-00394-RBW           Document 192        Filed 11/16/2006      Page 13 of 14



                                CERTIFICATE OF SERVICE


       I, the undersigned, hereby certify that on this 15th 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

Case 1:05-cr-00394-RBW   Document 192   Filed 11/16/2006    Page 14 of 14



                                           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




                                 14

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