No Easy Answers

     Case 1:05-cr-00394-RBW              Document 184        Filed 11/14/2006      Page 1 of 10



                              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 PRECLUDE EVIDENCE AND ARGUMENT
               RELATING TO VALERIE WILSON'S EMPLOYMENT STATUS

            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 Preclude Evidence and Argument related to Valerie Wilson's employment status and

the actual or potential damage caused by public disclosure of that status.

                                           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. Defendant has been provided

with a disclosure of information from the Central Intelligence Agency ("CIA") establishing that Ms.

Wilson's employment was previously classified, and outlining the potential risks of publicly

disclosing her employment. Defendant seeks to preclude the government from offering this evidence

at trial.

            As discussed below, the government does not intend to establish at trial that Ms. Wilson's

employment status was in fact classified in June and July 2003, or that the public disclosure of Ms.


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Wilson's employment in fact posed a risk of damage to the national security, the CIA, or Ms. Wilson

herself ­ as long as the defendant does not open the door by suggesting to the jury that Ms. Wilson's

employment was actually not classified or that in fact there was no real risk to Ms. Wilson as a result

of disclosure of her employment. ^1 Instead, the government intends to limit its proof to: (a)

establishing that the FBI and grand jury investigations defendant sought to obstruct concerned the

possible unauthorized disclosure of classified information and the possible unlawful disclosure of

a covert agent, and that the false information defendant is charged with providing to investigators

and the grand jury was therefore material; and (b) establishing that, before defendant was

interviewed by the FBI or testified in the grand jury, defendant received information indicating that

Ms. Wilson's employment could be classified and that disclosure could be damaging, and that this

information made defendant's conversations regarding Ms. Wilson even more memorable to him,

and provided defendant with a motive to lie.

                                           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 and, shortly thereafter, defendant relayed this

information to New York Times reporter Judith Miller and Time Magazine reporter Matthew



       1
          The government reserves the right to offer proof of the classified status of Ms. Wilson's
employment if the defendant contends that the questions and answers at issue were not material
to the grand jury investigation or seeks jury nullification based on the absence of such evidence.
To the government's knowledge, the defense intends to contend that defendant's answers were
accurate but if they were not accurate they were misremembered ­ and does not intend that any
intentionally false statement was not material.

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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.

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

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

a firestorm of criticism regarding the "outing" of a "covert" CIA agent. After the publication of

Novak's column, defendant was a party to conversations regarding Ms. Wilson's possible "covert"

status, including a conversation in which the Director of Central Intelligence noted that people

talking about Wilson's wife could be a "problem," a conversation in which a CIA briefer commented

on the potential dangers posed by the disclosure of Ms. Wilson's employment, and a conversation

with Counsel to the Vice President (now the Vice President's Chief of Staff), David Addington, in

which defendant asked how one could determine whether a CIA employee was "covert."

       Defendant and his staff closely tracked stories about the Wilsons beginning no later than July

2003. After the investigation became public in late September 2003, defendant and his staff closely

tracked news reports and commentary regarding Ms. Wilson, including reports that speculated that

defendant had been the source for Mr. Novak's column and thus was responsible for "outing" Ms.

Wilson. Defendant also followed public statements made by White House Press Secretary Scott

McClellan regarding the leak in late September and early October 2003 in response to press

inquiries. During this period, McClellan publicly asserted that the President expected "everyone in

his administration to adhere to the highest standards of conduct," and that the President considered


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"leaking classified information [to be] a very serious matter [which] should be ... pursued to the

fullest extent . . . . " McClellan drew a distinction between "setting the record straight" and

"spreading information to punish someone for speaking out," and noted that the White House would

not condone the latter type of activity. McClellan told reporters that, "[i]f someone in this

administration leaked classified information, they [would] no longer be a part of this

administration[.]"

         On September 29, 2003, Scott McClellan made a public statement exonerating Karl Rove

of being involved in the leak. Defendant responded to McClellan's action by insisting he be publicly

exonerated as well. On October 4, 2003, McClellan did so, stating (based on information defendant

provided to him) that defendant "neither leaked the classified information, nor would he condone

it."

         On September 30, 2003, while speaking in Chicago, Illinois, the President personally

commented regarding the disclosure of information regarding Ms. Wilson:

         [I]f there is a leak out of my administration, I want to know who it is. And if the person has
         violated law, the person will be taken care of. . . . I want to know the truth. If anybody has
         got any information inside our administration or outside our administration, it would be
         helpful if they came forward with the information . . . I've spoken out consistently against
         [leaks] and I want to know who the leakers are.

         Defendant was interviewed by the FBI for the first time two weeks after the President made

these remarks, and a second time approximately six weeks later. 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 the Vice President learned this

information from the CIA. Defendant further admitted that he spoke to New York Times reporter

Judith Miller and Time Magazine reporter Matthew Cooper about Ms. Wilson's employment in July


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2003. Defendant repeated these statements when he testified before the grand jury in March 2004.

       With respect to his conversations with reporters, defendant told both the investigating agents

and the grand jury that:

              (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.

The indictment charges that these statements were false, as evidenced by, among other things, the

facts that 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, and that 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. The indictment charges that defendant deliberately made the charged false statements in

an effort to mislead and deceive both federal investigators and the grand jury as to how and when

defendant acquired and disclosed to reporters information concerning the employment of Ms.Wilson

by the CIA.




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II.     Direct Evidence of the Classified Status of Ms. Wilson's Employment

        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 the charged false statements related

to matters within the jurisdiction of the Federal Bureau of Investigation and were material to the

grand jury's investigation, and whether defendant innocently erred or, instead, deliberately lied when

he made them. In doing so, the jury necessarily will consider the nature and scope of the

investigation, as well as defendant's motives for lying to investigating agents and to the grand jury.

Information regarding the possible crimes being investigated by the FBI and the grand jury, and the

information known to defendant before he made the charged statements, is therefore directly relevant

to the issues the jury must decide in this case.

        The government agrees that evidence establishing the facts that "Valerie Wilson's

employment status with the Central Intelligence Agency (the "CIA") was . . . classified or covert"

and that "any damage to the national security, the CIA, or Ms. Wilson herself was . . . or could have

been, caused by the disclosure of that status" (Mtn. at 1) is not strictly necessary to prove that the

charged false statements were material to the grand jury's investigation and within the jurisdiction

of the executive branch. Nor is evidence of these facts necessary to a determination that defendant

had a motive to lie during his FBI interviews and grand jury testimony. Therefore, the government

agrees not to offer a declaration from the CIA or any other direct evidence of the facts that Ms.

Wilson's CIA employment actually was classified or that the public disclosure of that employment

actually damaged the national security, the CIA, or Ms. Wilson, or had the potential of doing so.

This agreement is not intended to confer upon defendant a license to mislead the jury, however.

Thus, if defendant were to open the door by attempting to challenge the classified status of Ms.


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Wilson's employment or the potential risks of publicly disclosing that employment, or if the defense

disputed the materiality of the statements or sought nullification, the government would be entitled

to, and would, seek to offer this evidence. In any event, government counsel would not consider,

and need not be ordered to avoid, an improper attempt to "manufacture a wrongful conviction" by

offering evidence for the purpose of "arousing the passions or prejudices" of this, or any other, jury.

II.     Information Regarding Ms. Wilson's Status that Defendant Received Prior to Being
        Questioned.

        As defendant acknowledges, information regarding Ms. Wilson's status that defendant

received is relevant to defendant's state of mind. Inexplicably, however, defendant seeks to restrict

the government's proof to information regarding Ms. Wilson's status which defendant received prior

to July 14, 2003 (the date Ms. Wilson's status was publicly disclosed in a column written by Robert

Novak).

        Obviously, everything defendant knew about the classified status of Ms. Wilson's

employment, and everything he knew about the potential ramifications of disclosing information

regarding her employment ­ both to her and to himself ­ is directly relevant to defendant's state of

mind and motive to lie at the time of his FBI interviews and grand jury appearances. Defendant's

effort to restrict the government's presentation of relevant evidence is ironic in light of his extensive

efforts to present to the jury hundreds of details regarding wholly unrelated events occurring well

after July 14, 2003 in support of his memory defense. In short, defendant seeks to preclude the

government from presenting evidence of motive and then argue that there is none. This he must not

be permitted to do.

        Instead, the government is entitled to present evidence of all the information that defendant



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received regarding Ms. Wilson's status, the risks of public disclosure, and the risks faced by those

who made the disclosures if their identities were revealed, at the time he was interviewed or testified.

Thus, the government is entitled to present evidence of conversations, news reports or other means

by which such information was disclosed to him at any time prior to the FBI interviews or

defendant's grand jury appearances. All of this evidence is directly relevant to show that, far from

being unremarkable "snippets" of conversation, defendant's conversations with reporters and others

regarding former Ambassador Wilson, his 2002 trip to Niger, and his wife's possible role in

arranging that trip, were unique and memorable events that took on more, rather than less,

importance prior to the time defendant was questioned concerning them.

III.     Evidence Concerning Information Known to Other Government Officials But Not
         Communicated to Defendant

         Defendant argues that information regarding the Ms. Wilson's employment known to other

government officials with whom defendant spoke about Ms. Wilson is relevant to the case. (Mot.

1). However, as this Court previously held in the context of discovery, information known to other

government officials regarding Ms. Wilson's employment is relevant only if such knowledge was

shared with defendant, or with reporters Miller, Russert or Cooper. ^2 See June 2, 2006 Order at 6.

The government has no intention of straying from the limits previously set by this Court for purposes

of discovery, and will confine its evidence concerning Ms. Wilson's classified status to information

of which defendant was made aware. It is the government's expectation that the defense will do the

same.




         2
        These reporters were not made aware of any such information prior to their
conversations with defendant.

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                                        CONCLUSION

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

defendant's motion as moot.

                                                    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
                                                    (312) 353-5300

Dated: November 14, 2006




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                                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

posted by cboldt  # 11/17/2006 02:04:00 PM