No Easy Answers


Friday, December 01, 2006

Court Opinion Re: CIPA 6(a) Admissibility [Doc 191/209]

CIPA 6(a) use, relevance, and admissibility

Transcribed by hand.

This page starts with summary lists of the classified documents that Libby requested be ruled admissible (footnotes 9 and 10), combined with cross references to the footnotes (14, 15 and 16) that represent the Court's rulings and rationales. The lists also note the nature of the evidence, where the Opinion gave that information, as well as identifiable follow-up Motions filed by either party.

Most of the inadmissibility rulings appear to be based on lack of intersection of papers with dates of significance, and therefore aren't relevant to Libby's memory and state of mind regarding the subject of Mrs. Wilson's employment.

Dates of significance

     May 6, 2003 Kristof article in NYT  : start bracket (earliest)
     March 24, 2004 Last GJ appearance   : end bracket   (latest)

     Opinion admits the following critical dates as highly probative of Libby's state of mind:

     Week of June 9-14  : conversations with officials
     June 23, 2003      : conversation with Miller (and day before and day after)
     July 6-12, 2003    : conversations with reporters

     October 14, 2003   : conversation with FBI (and day before and day after)
     November 26, 2003  : conversation with FBI (and day before and day after)
     March 5, 2004      : grand jury testimony (and day before and day after)
     March 24, 2004     : grand jury testimony (and day before and day after)

Footnote Contents:

FN 9 and FN 10 represent all of the classified papers at issue in the case
FN 9 and FN 10 have 5 papers in common, making the total number of papers 124

A minor note, Libby filed a Memorandum [Doc 195 (classified)] regarding CIPA Exhibits 100, 178, and 71. Two of those documents are therefore in contention (classified paper 178 was ruled admissible), which indicates a focus on the fodder for a possible Libby post-trial appellate challenge to the CIPA 6(a) ruling.


FN9 - relate primarily to preoccupation defense

  2                     (FN15)  (FN16)
  3                     (FN15)  (FN16)
  9                             (FN16)
 13
 15
 37
 40
 41
 49                             (FN16)  Libby meeting notes
 54                     (FN15)  (FN16)  Libby meeting notes
 55
 56     (FN10)
 61                     (FN15)  (FN16)
 62
 70                             (FN16)
 75     (FN10)                  (FN16)  Libby's task list for June 10, 2003
 76     (FN10)                  (FN16)
 78                             (FN16)
 79                             (FN16)
 81                             (FN16)  Libby meeting notes
 82                             (FN16)
 83                             (FN16)
 85                             (FN16)  Libby meeting notes
 87                             (FN16)
 89                             (FN16)
 90                             (FN16)
 93                             (FN16)
 94                             (FN16)
 95                             (FN16)
 96                             (FN16)
100     (FN10)                                  (subject of Libby memo - Doc 195)
103
106
109                     (FN15)  (FN16)
113                     (FN15)  (FN16)
115                     (FN15)  (FN16)
116                     (FN15)  (FN16)
119
120
122                             (FN16)
124                             (FN16)
125                             (FN16)
130
137
138
140
145
151
155
159
160
161
162
166                             (FN16)
167                             (FN16)
171                             (FN16)
172                             (FN16)
176                             (FN16)
177                             (FN16)
178     (FN10)                  (FN16)          (subject of Libby memo - Doc 195)
179                             (FN16)
181                             (FN16)
182                             (FN16)
183                             (FN16)
186                             (FN16)
189                             (FN16)
190                             (FN16)
202                             (FN16)
203                             (FN16)
217                             (FN16)
218                             (FN16)
222                             (FN16)
229                     (FN15)  (FN16)
235                     (FN15)  (FN16)
254             (FN14)          (FN16)
256             (FN14)          (FN16)
268             (FN14)          (FN16)
281
282
290
296
300
305                             (FN16)
308                             (FN16)
315
316
320
322
336             (FN14)          (FN16)
338                             (FN16)
341
357             (FN14)          (FN16)
359             (FN14)          (FN16)
360             (FN14)          (FN16)
361                             (FN16)
362             (FN14)          (FN16)
376
401
409                     (FN15)  (FN16)
411                             (FN16)


FN 10 - offered to show interest in Wilson, not Wilson's wife
         3 of 29 documents contain admissible evidence, all three also listed in FN9
        26 of 29 refer to evidence ruled inadmissible

 18
 56     (FN9)
 57
 58
 71                                             (subject of Libby memo - Doc 195)
 72
 73
 74
 75     (FN9)                   (FN16)  Libby's task list for June 10, 2003
 76     (FN9)                   (FN16)
 80
100     (FN9)                                   (subject of Libby memo - Doc 195)
105
152
170
173
174
178     (FN9)                   (FN16)          (subject of Libby memo - Doc 195)
198
199
209
210
211
212
213
216
225C
242
299




Case 1:05-cr-00394-RBW     Document 209     Filed 12/01/2006     38 pages

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
                                )
UNITED STATES OF AMERICA        )
                                )
                                )
     v.                         )       Criminal No. 05-394 (RBW)
                                )
                                )
I.LEWIS LIBBY,                  )
                                )
        defendant.              )
________________________________)


MEMORANDUM OPINION ^1

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 Sec. 6(a) (2000), ^2 to address 
the "use, relevance and admissibility" during the trial of 
certain classified documents and information the defendant 
desires to use as part of his defense. ^3 In 

FN1 Due to the nature of the information contained in this 
Memorandum Opinion, it must be filed with the Court Security 
Officer before it can be made available for public dissemination.  
In addition, because this opinion contains classified 
information, it must be handled by the parties in accordance with 
the protective orders issued in this case.  It is this Court's 
belief, however, that a substantial portion of this Opinion 
contains unclassified information Therefore, the government shall 
forward this opinion, along with all transcripts from the closed 
hearings in this matter, to the proper officials for 
classification determinations and thereafter provided this Court 
with a redacted version of this opinion so it can be placed on 
the public docket and the transcripts can be made available for 
public viewing.  The same holds true for all papers that have 
been filed through the Court Security Officer in connection with 
these CIPA proceedings.  It is this Court's desire to have as 
much of the proceedings in this case open to the public as soon 
as practical.  See November 14, 2006 Order.

FN2 This Court had hearings pursuant to Section 6(a) of the CIPA 
on September 27 and 28, 2006; October 3, 4, 26 and 30, 2006; and 
November 1, 2006. [Docket shows Nov. 2]

-- page 1 --

advance of those hearings, the Court detailed in a September 21, 
2006, Memorandum Opinion and Order, the standard the Court must 
employ in resolving whether certain classified information should 
be precluded from trial pursuant to Section 6(a) of the CIPA. 
(citation omitted) (concluding that under Section 6(a) only "the 
Federal Rules of Evidence and the restrictions they impose 
control whether the information subject to CIPA proceedings is 
admissible during a trial). ^4 Consistent with the standard 
enunciated in the September 21, 2006 Opinion, the Court issued a 
number of rulings from the bench during Section 6(a) CIPA 
hearings resolving contested issues concerning the "use, 
relevance, and admissibility" of the classified documents and 
information the defendant desires to use.  This opinion 
memorializes those rulings as required by Section 6(a) of the 
CIPA 18 U.S.C. App. III Sec. 6(a) ("the court shall set forth in 
writing the basis 

FN3 In connection with these hearings, the following papers have 
been submitted to the Court; (1) the Defendant's Consolidates 
CIPA Sec. 5 Notice ("Def.'s Notice") [Doc 127]; (2) the 
defendant's Memorandum Concerning Use, Relevance and 
Admissibility of Classified Documents and Information Listed in 
Defendant's Consolidated CIPA Sec 5 Notice ("Def.'s Mem.") [Doc 
128]; (3) the Government's CIPA Sec. 6(b) Notice ("Gov't's 
Notice") [Docs 133, 136; Amended Docs 148, 149]; (4) the 
Government's Memorandum in Opposition to Defendant's Arguments 
Regarding the Use, Relevance, and Admissibility of Classified 
Documents ("Gov't's Opp'n") [Docs 141, 144]; (5) the Defendant's 
Reply Memorandum Concerning Use, Relevance and Admissibility of 
Classified Documents and Information Listed in Defendant's 
Consolidated CIPA Sec. 5 Notice ("Def's Reply") [Doc 143]; (6) 
the Government's Specific Objections to Classified Information 
Defendant Seeks to Admit at Trial ("Gov's Obj.") [Docs 160, 162]; 
and (7) Defendant's Response to Government's Specific Objections 
to Classified Information Defendant Seeks to Admit at Trial 
("Def.'s Response") [Doc 163].  In addition, the parties filed 
the following additional memoranda: (1) Memorandum of I. Lewis 
Libby Concerning the Admissibility of Documents on the 
Defendant's Consolidated Sec. 5 Notice [Doc 146]; (2) 
Government's Response to Defendant's Memorandum Concerning 
Admissibility of Documents on Defendant's Consolidates Sec. 5 
Notice [Doc 147]; (3) Memorandum of I. Lewis Libby Concerning 
Admissibility of Documents to Corroborate his Potential Trial 
Testimony [Doc 150]; and (4) Government's Memorandum of Law in 
Response to Court's Inquiries Regarding Legal Authorities in 
Connection with CIPA Sec. 6(a) Hearing [Doc 151].

FN4 Even if this Court had applied the heightened standard for 
use, relevance and admissibility that the government encouraged 
it to adopt, Government's Memorandum in Opposition to Defendant's 
Arguments Regarding the Use, Relevance, and Admissibility of 
Classified Documents at 5-15, the rulings set forth in this 
opinion would not differ.  The classified information that this 
Court concludes is relevant is undoubtedly "helpful to the 
defense" and the defendant's interest in putting on a complete 
defense to the charges against him outweighs the need to protect 
the classified information from disclosure.

-- page 2 --

for its [use, relevance, and admissibility] determination."). ^5

BACKGROUND

This Court has, on several occasions, set forth the facts of this 
case in published opinions.  See, e.g., United States v. Libby, 
432 F.Supp.2d 81, 82-83 (D.D.C. 2006); United States v. Libby, 
432 F.Supp.2d 26, 28-29 (D.D.C. 2006); United States v. Libby, 
429 F.Supp.2d 27, 28-29 (D.D.C. 2006); United States v. Libby, 
429 F.Supp.2d 1, 4 (D.D.C. 2006). Accordingly, the Court need not 
do so again in this opinion.  However, it is necessary to discuss 
the classified information the defendant desires to disclose or 
will cause to be disclosed during his trial.  As discussed more 
fully below, over the course of Section 6(a) proceedings, the 
classified information subject to the section 6(a) proceedings 
has evolved from a mountainous volume of documents and other 
classified information to a much more modest quantity.

The Defendant's Consolidated CIPA Sec. 5 Notice was filed on 
August 5, 2006.  The notice identified 412 documents and nine 
narrative summaries which contain classified information that the 
defendant reasonably expects to disclose or cause the 


FN5 During the course of the Section 6(a) proceedings, the Court 
was provided a number of binders created by the parties to assist 
in the review of the classified information at issue.  These 
binders included: (10 a four volume set of binders provided by 
the defendant with copies of each of the 412 documents provided 
in his Section 5 CIPA notice [redacted] (2) a binder provided by 
the government containing [redacted] material referenced in the 
defendant's Section 5 CIPA notice; (3) a binder from the 
government containing defense exhibits to which the government is 
not objecting in whole or in part; (4) a binder from the 
government containing proposed classified government exhibits, 
which had not otherwise been designated by the defense; (5) a 
binder provided by the defendant containing all of the documents 
identified in his Section 5 CIPA notice that relate to Ambassador 
Joseph Wilson and his mission to Niger; (6) a binder provided by 
the government containing the defendant's unclassified daily 
schedule; (7) a binder provided by the defendant containing 
copies of the 100 documents the defendant desires to disclose at 
trial, in whole or in part, through testimony, the introduction 
of the documents, or both, and (8) a binder from the government 
containing additional proposed classified government exhibits, 
which had not been designated by the defendant as information he 
desires to use.

-- page 3 --

disclosure of during the trial. ^6 Def.'s Notice at 1. As 
indicated by the defendant, he may introduce the listed document 
itself into evidence, or present testimony concerning the 
classified information contained in the document, or both. Id. 
According to the defendant, these documents and the narrative 
summaries are relevant to two aspects of the defense.  First, the 
vast majority of the documents would be used to establish the 
foundation for the defendant's anticipated defense that any 
misstatements he made when speaking with the Special Agents of 
the Federal Bureau of Investigation ("FBI") or testifying before 
the grand jury were the result of confusion or faulty memory, not 
an intent to willfully misrepresent the truth.  Def.'s Mem. at 
8-14.  In support of this theory of his defense, the defendant 
anticipates introducing classified information related to nine 
topic areas, which detail the work he will posit commanded his 
time and attention during the time period he purports is relevant 
to his case. Id at 8-10.  And the defendant will contend that 
these topics consumed the focus of his attention and had 
significantly greater importance to him than the conversations he 
allegedly had with various news reporters that form the bases for 
the offenses he is charged with committing. Id. at 10.  
Accordingly, the defendant will assert that to the extent he made 
inaccurate statements to the FBI agents or to the grand jury 
concerning the substance of conversations he had with various 
news reporters, such inaccuracies were inadvertent as they 
concerned conversations that were "relatively unimportant to 
him."  Id.  And second, the defendant anticipates introducing 
classified information, primarily through his notes, in an 
attempt to demonstrate that to the extent he was involved in an 
attempt to

FN6 To the extent that the Court refers to specific 
document/exhibit numbers in this opinion, those references are to 
the numbers assigned to documents by the defendant in his Section 
5 CIPA notice, as amended by the table provided to this Court on 
September 27, 2006.  Def.'s Notice at 3-14; Corrected 
Consolidated CIPA Sec. 5 Exhibits.

-- page 4 --

respond to Ambassador Joseph Wilson's findings regarding Iraq's 
relationship with Niger, such efforts were for the legitimate 
purpose of addressing the merits of those findings, and had 
nothing to do with disclosing Ambassador Wilson's wife-- Valerie 
Plame Wilson's -- affiliation with the Central Intelligence 
Agency ("CIA"). Id at 14-15.

The initial Section 6(a) hearings, while not resolving at the 
time every dispute on the admissibility of the subject classified 
information, was extraordinarily helpful in framing what use, 
relevance, and admissibility determinations needed to be resolved 
by the Court.  The benefit that resulted from the initial 
hearings was the defendant's modification of his CIPA Section 5 
notice clarifying what classified information was in fact at 
issue. ^7 Moreover, before the Section 6(a) hearings commenced, 
and during the hearings themselves, the amount of classified 
information at issue was reduced substantially.  Specifically, on 
September 6, 2006, and again on September 26, 2006, the 
government filed a notice pursuant to Section 6(b) of CIPA 
identifying various documents listed in the defendant's Section 5 
notice that are not classified. ... In addition, over the course 
of the hearings, it became apparent, as to the documents related 
to the memory aspect of the defense, that the defendant is not 
seeking to introduce the actual classified information contained 
in each and every document identified in his Section 5 notice. 
Rather, the defendant identified a substantial number of 
documents only for the purpose of establishing that an event 
occurred or that classified information was provided to him, 
without any intention of revealing during the trial the actual 
substance of the events or the information contained in the

FN7 The defendant's Section 5 notice now consists of (1) the 
classified information set forth in narrative form in the 
Defendant's Consolidated CIPA Sec. 5 Notice, as amended orally in 
court on October 4, 2006; (2) the classified information in 
defense counsel's oral discussion of the use, relevance, and 
admissibility of the listed documents at the CIPA Sec. 6(a) 
hearings; and (3) the classified information in the highlighted 
portions of the exhibits provided to the Court and the government 
on October 5, 2006.

-- page 5 --

documents. ^8 And, as to those documents or the information 
therein he anticipates seeking to actually introduce, it became 
apparent that in many instances the defendant does not desire to 
introduce all the information in every document.  Thus, as a 
result of these developments, the amount of classified 
information the defendant seeks to disclose has been reduced 
substantially.

In addition to the topic summaries in the defendant's Section 5 
CIPA notice, there are 100 documents containing classified 
information, ^9 which the defendant seeks to introduce to 
establish the foundation for his memory defense.  And there are 
twenty-nine documents containing classified information, ^10 
which the defendant seeks to introduce to establish that he was 
not engaged in an effort to reveal the identity of Ambassador 
Joseph Wilson's wife as a CIA employee, but rather was merely 
attempting to legitimately rebut the merits of Ambassador 
Wilson's assertions.  As these documents (along with the 
narrative summaries contained in the Section 5 notice) contain 
all of the classified information at issue, this Court's ruling

FN8 The defendant will present this information to the jury 
through the use of "dots" depicted on a Power Point presentation 
for the purpose of showing how busy he was.

FN9 The following documents, in addition to the narrative summary 
contained in Section 5 notices, contain classified information, 
which the defendant anticipates disclosing at trial in support of 
this defense: [100 item list above, with cross references]

FN10 The following documents, in addition to the narrative summary 
contained in Section 5 notices, contain classified information, 
which the defendant anticipates disclosing at trial in support of 
this defense: [29 item list above, with cross references]

-- page 6 --

is thus limited to this information. ^11 The Court will discuss 
each group of documents in turn.

II. Discussion

As already noted, this Court previously concluded that when ruling 
on the "use, relevance a, and admissibility" of classified 
information pursuant to Section 6(a) of the CIPA, the Court must 
solely employ the standard rules of evidence that govern other type 
of evidence in federal court. Libby, ___ F.Supp.2d at ___, 2006 
WL 2692740 at #1.  In opposition to the defendant's arguments 
regarding the use, relevance, and admissibility of the classified 
information identified in his CIPA Section 5 notice, the 
government advances three arguments, which were also recurring 
themes during the Section 6(a) hearings.  First, the government 
contends that these documents relate to time periods not relevant 
to the defendant's memory defense.  Gov't's Opp'n at 23-26.  
Second, the government argues that the classified information 
contained in the topic summaries and the documents themselves 
contain a level of detail that is not relevant.  Id. at 26-28.  
And finally, the defendant (sic) maintains that much of the 
classified information should be excluded under Federal Rule of 
Evidence 401 ("Definition of Relevant Evidence") and 403 
("Exclusion of Relevant Evidence on the Grounds of Prejudice, 
Confusion, or Waste of Time"). Id at 32-34.  The government's 
most recent filing details, document-by-document, the governments 
specific objections.  See generally Gov't's Obj.  The Court will

FN11 Although this Court is ruling only on this limited set of 
documents, the Court appreciates that the defendant's Section 5 
notice contains a plethora of other documents, which at this time 
he intends to introduce for an extremely limited purpose to show 
when the defendant was working on issues relating to the various 
topic areas, without revealing the actual classified information 
itself.  And the Court recognizes that depending upon further 
pretrial developments and events as they unfold during the trial, 
the defendant may feel it necessary to introduce the actual 
substance of this classified information.  Should this occur, the 
defendant must immediately notify the Court and the government 
before such information is elicited at trial.  The Court will 
then, as necessary, make proper CIPA rulings.

-- page 7 --

address each of these arguments in turn.  However, before turning 
to the documents themselves, it is helpful to first set forth a 
few general principles in response to objections raised by the 
government and by the defendant during the Section 6(a) 
proceedings.

First, it is important to discuss one recurring debate that 
occurred throughout the Section 6(a) proceedings -- the line 
between Federal Rules of Evidence 401 and 403 on the one hand, 
and substitutions under Section 6(c) of the CIPA on the other 
hand.  During the Section 6(a) proceedings, the government 
objected to much of the information identified by the defendant 
in his Section 5 notice because it claimed that such evidence was 
too detailed and that such level of of detail made much of the 
evidence irrelevant under Rule 401.  In addition, the government 
opined that any probative value such details have is far 
outweighed by the unfair prejudice and confusion that would 
result from the evidence being presented to the jury, thus making 
it inadmissible under Rule 403.  In response, the defendant 
argued that the government's concern about the level of detail 
was more properly addressed in the later substitution proceedings 
under Section 6(c) of the CIPA.

It is undisputed that this Court has a duty to engage in a Rule 
403 balancing to determine whether otherwise relevant evidence 
should be excluded at trial.  Courts therefore frequently employ 
Rule 403 to exclude irrelevant, confusing, and misleading 
evidence.  See United States v. Anderson, 872 F.2d 1508, 1518 
(11th Cir. 1989); see also United States v. Wilson, 586 F.Supp 
1011 (S.D.N.Y. 1983), aff'd 750 F.2d 7 (2d Cir. 1984).  And 
although Section 6(c) provides the procedures through which the 
Court (and the parties) will engage in the process of 
substitutions and redactions of classified evidence that is deemed 
relevant and admissible, Courts have

-- page 8 --

recognized that the balancing under Rule 403 can include a 
"balanc[ing] between relevance and prejudice and the alternatives 
available for the substitution of less prejudicial proof," United 
States v. Long, 574 F.2d 761, 770 (3d Cir. 1978) (Adams, J. 
concurring); see United States v. Lobovitz, 669 F.2d 894, 902 (3d 
Cir. 1982) (Adams, J., concurring).  As the Eight Circuit 
recognized in United States v. Sewall, 457 F.3d 841, 844 (8th 
Cir. 2006), "[i]n weighing [the Rule 403] elements, the district 
court should discount the probative value of the disputed 
evidence if an evidentiary alternative has equal of greater 
probative value and poses a lower risk of unfair prejudice." Id. 
(citing United States v. Becht, 267 F.3d 767, 773 (8th Cir. 
2001)).  This, a Court making a Rule 403 determination can 
examine whether "less prejudicial proof" with equal probative 
value can be substituted to eradicate any unfair prejudice or 
confusion.  Cf. Long, 574 F.2d at 770.  Accordingly, where this 
Court has concluded that the introduction of certain terms that 
are part of the classified proof would create unfair prejudice or 
confusion, it has required redactions or substitutions of less 
prejudicial terms.  However, in making these redactions or 
substitutions under Rule 403, the Court was not concerned with 
whether they altered the classification status of the documents 
or information.  Rather, the Court was only concerned with 
removing the confusing or prejudicial language.  Only after the 
Section 6(a) hearings were completed, has the Court concerned 
itself with substitutions and redactions designed to address the 
government's concerns about disclosing the classified nature of a 
document or information. ^12

FN12 Admittedly, it is quite difficult to make definitive rulings 
on Rule 403 grounds as this Court does not yet know how the trial 
will unfold and what facts and evidence will actually be 
presented by the parties.  As such, it is virtually impossible to 
conclude at this stage of the litigation that certain pieces of 
evidence would be cumulative or their admission would result in 
undue waste of time.  Because this Court wants to provide the 
defendant every possible accommodation to put on his defense, the 
Court has been extremely reluctant to exclude evidence on these 
grounds.  Accordingly, while this Memorandum opinion does set 
forth substantive rulings on a number of issues, the Court 
reserves the right to alter these rulings as the trial unfolds.

-- page 9 --

Second, before engaging in an extensive document-by-document 
analysis, it was important to assess the time periods that are 
critically relevant to the prosecution.  This assessment weighed 
heavily on what classified information contained in the documents 
should be excluded or to what degree the extent of the 
classified information the defendant seeks to admit should be 
limited.  As discussed more fully below, the court employed, what 
is in effect, a "sliding scale."  On one end of the scale is the 
classified information that relates to events that allegedly 
consumed the defendant's time and attention during critical dates 
as alleged in the indictment.  The classified information that 
reflects what the defendant was confronting during those critical 
dates was deemed far more probative than the information 
confronting the defendant during those other times.  This 
demarcation caused the Court to conclude that the level of detail 
the defendant would be permitted to introduce at trial would be 
generally controlled by whether the classified documents or 
information related to one of those critical dates.  If so, for 
the jury to get an appreciation of what exactly was purportedly 
consuming the defendant's time and attention during these 
specific periods, it is the Court's view that the defendant must 
be permitted to testify with some level of detail about those 
events or introduce documents with the same level of detail.  On 
the other hand, except for several specific instances, documents

-- page 10 --

relating to events not occurring or within close proximity of 
these key dates are much less probative, and thus, there is 
simply no need for the jury to know with the same degree of 
detail about those events.  In other words, while the defendant 
will be permitted to provide detailed testimony about information 
relating to events that fall on or within close proximity of 
critical dates in the indictment, he will be precluded from 
testifying altogether or his testimony will be limited as to 
classified information relating to events falling outside these 
critical dates.

Admittedly, some of the information contained in the documents 
and narrative summaries related to these critical dates is highly 
sensitive.  Nonetheless, these are the activities and events that 
the defendant will contend were consuming his time and attention 
during the dates that are identified in the indictment.  Thus, in 
order to put on this defense, the defendant must be afforded the 
opportunity to show the jury that his focus was consumed by this 
information is credible.  And it is of no moment that the 
government does not anticipate challenging the defendant's 
assertions that he was consumed with important matters because 
the government will no doubt challenge the relative weight the 
jury should accord to this information as compared to the focus 
he gave to Ambassador Wilson and the information he had provided 
about his trip to Niger. ^13

To determine which dates are significant to the offenses charged 
in the indictment, the Court must look to the indictment itself 
The first date of any significance in the indictment is May 6, 
2003, the date on which New York Times columnist Nichols Kristof 
published his column in the New York Times challenging the 
accuracy of the President's State of the Union

FN13 With the exception of the instances described in this 
opinion where the Court does conclude that certain pieces of 
classified information should be excluded, the Court finds no 
need to discuss the government's objection on a 
document-by-document basis where its objection cannot be 
sustained.

-- page 11 --

address, during which the President stated that "[t]he British 
government has learned that Saddam Hussein recently sought 
significant quantities of uranium from Africa." Indictment at 3, 
para 3. And the last date in the indictment of significance is 
March 24, 2004, the date of the defendant's last grand jury 
appearance. Id. at 11, para 30.  The period of time falling 
within these dates largely set the parameters for the period 
relevant both to the prosecution and the defense of this case, as 
it is the events falling within these dates that form the 
predicate for the charges that have been lodged against the 
defendant.  However, this Court cannot conclude that the detail 
in every document, the detail of every conversation, and the 
detail of every task the defendant performed during this entire 
eleven month period is relevant or relevant to the same degree to 
his memory defense.  Rather there are several discrete points in 
time during this eleven month period when significant 
conversations occurred, such as the dates the defendant spoke 
with the various news reporters, had conversations with various 
administration officials, spoke with the FBI agents, and 
testified before the grand jury, that are of critical importance 
to this prosecution.  It is the information and work that 
consumed the defendant during these key dates, and the days 
immediately surrounding these key dates, that are most relevant 
and probative.  In other words, the items that allegedly consumed 
his time and attention during these key periods are the tasks 
that most likely would have caused the defendant to allegedly 
misremember the conversations at issue.  Moreover, several other 
distinct events, due to the immediacy or gravity of the 
information, could also be construed by the jury to have impacted 
the accuracy of the defendant's memory. Therefore, the defendant 
will be permitted to disclose the details of this information and 
those events as well.

-- page 12 --

The indictment alleges that the defendant participated in 
conversations beginning on or around June 9, 2003, with 
administration officials concerning Ambassador Joseph Wilson and 
his trip to Niger, Indictment at 4, para 5, and that these 
conversations continued throughout that week, id. at 4-5 paras 
6-11.  It is clear that the government will use these 
conversations to establish that the defendant had knowledge of 
Valerie Plame Wilson, and knew of her affiliation with the CIA.  
Accordingly, there can be no question that what otherwise 
allegedly consumed the defendant's time and attention during this 
week -- June 9 through 14, 2003 -- is relevant and extremely 
probative to the prosecution and defense of this action.  In 
addition, the defendant had various conversations pertinent to 
this prosecution during the week of July 6 through 12, 2003, 
including the conversations with various news reporters, which 
form the predicate for the charges which have been filed against 
the defendant.  Again, this week is critical to the case, and the 
events occurring during this week are relevant and highly 
probative.  Finally, there are other significant dates discussed 
in the indictment that are also relevant, including the date of 
the defendant's conversation with Judith Miller (June 23, 2003), 
his conversations with FBI agents (October 14, 2003 and November 
26, 2003) and the dates he testified before the grand jury (March 
5, 2004 and March 24, 2004). Indictment at 6, para 14, id. at 9, 
para 26, id. at 11, para 30.  What the defendant was doing and 
the information provided to him on those dates, in addition to 
the day before and the day after, are also relevant and highly 
probative of whether he is culpable for committing the charged 
offenses.  Accordingly, documents and information that fall 
within all of the dates discussed above are clearly relevant to 
establish what matters the defendant was allegedly focusing on at 
those times.  And the defendant will therefore be permitted to 
introduce

-- page 13 --

documentary proof or testify with some degree of detail, if he 
so chooses to testify, about the events and activities he was 
engaged in during these relevant time periods.

On the other side of the scale, however, are those documents and 
information which relate to the defendant's activities outside 
these clearly critical time periods.  Although the Court cannot 
say with absolute certainty that no other documents or 
information related to events falling outside these time periods 
are totally irrelevant, their probative value is diminished in 
assessing whether the defendant innocently misremembered the 
conversations that form the basis for the charged offenses.  In 
fact, there is a "danger of unfair prejudice, confusion of the 
issues, or misleading the jury," in providing the jury details of 
the defendant's activities falling outside the critical time 
periods.  Specifically, permitting the defendant to testify as to 
the details of what consumed his time outside the critical time 
periods discussed above would likely confuse the jury concerning 
what events actually allegedly consumed the defendant's attention 
at the times that he had the conversations that form the basis 
for this prosecution.  Accordingly, while the defendant will be 
permitted to testify generally about the matters that consumed 
his time and attention during those periods outside of the dates 
identified in the indictment, permitting detailed descriptions of 
events occurring during such periods will be excluded pursuant to 
Rule 403.

While the vast majority of classified documents and information 
will fall squarely into one of the two categories described 
above, the Court acknowledges that there are events occurring 
outside of the critical time periods that may have impacted the 
defendant's memory and perception of the events at issue in this 
case.  For example, this Court recognizes that simply

-- page 14 --

because the defendant received an intelligence briefing on a 
given day, does not mean that he was only consumed with the 
information contained in that briefing on that day.  Thus, for 
example, the Court will permit the defendant to testify in detail 
about events that occurred on the day before and the day after 
the critical day itself. Moreover, the Court recognizes that 
particularly significant events occurring during the period of 
time between the defendant's conversations with the various news 
reporters and his conversations with FBI agents and his testimony 
before the grand jury could impact his memory and perception of 
those conversations.  Accordingly, the defendant has proffered a 
limited number of events, supported by information contained in 
classified documents, which he believes fall into this category.  
Specifically, during the Section 6(a) proceedings, the defendant 
proffered four dates on which events occurred that were of such 
significance that he believes could have cause him to misremember 
his conversations with various news reporters and administration 
officials.  According to the defendant, such events occurred on 
or around July 29, 2003, August 20, 2003, November 21, 2003, and 
late-December 2003. ^14 In addition to these dates, the defendant 
opines that there were a few other discrete pieces of classified 
information that he was exposed to outside of the time frame 
encompassing the critical dates that they likely impacted his 
memory. ^15 Considering the significance of these events and the 
plausibility that they would have had overwhelming impact on the 
focus of his attention and therefore impacted his memory of 
earlier events even though they occurred a considerable time 
after the events he was being asked to remember, the Court

FN 14 This classified information is contained in documents:

254
256
268
336
357
359
360
362

FN 15 This classified information is contained in documents:

  2
  3
 54             Libby meeting notes
 61
109
113
115
116
229
235
409

-- page 15 --

will permit the defendant to testify about these limited number 
of events.  Moreover, the defendant will be permitted to testify 
at the level of detail proffered by his attorney during the 
Section 6(a) proceedings, which is equivalent to the level of 
detail he is permitted to provide regarding those events that 
occurred during the critical times designated in the indictment. ^16

Finally, before turning to the classified documents and 
information itself, it is helpful to discuss whether the actual 
documents will be admissible, as opposed to simply testimony 
concerning the information contained in the documents.  As 
indicated during Section 6(a) proceedings, many, if not most, of 
the documents themselves are unlikely to be admitted as evidence 
during the trial for several reasons.  First, the documents would 
be cumulative of the testimony provided by the defendant.  And 
second, it would appear at this time that the information 
contained in many of the documents will pose substantial hearsay 
problems.  However, the Court will have to defer issuing 
definitive rulings in this regard until an issue of admissibility 
arises.  At that time, the Court will be able to consider the 
question in context and assess whether there may be some basis 
for the actual admission of the documents, e.g., past 
recollection recorded.  The Court will now turn to the classified 
documents and information itself.


FN 16 - This ruling is limited to those documents and information 
that the defendant seeks to introduce in whole or in part to 
support his memory defense.  Based upon the foregoing analysis, 
the defendant may use at trial, subject to any other limitations 
set forth in this opinion and substitutions or redactions 
required during the Section 6(c) proceedings, classified 
information contained in the following documents:

  2                     (FN15)                  Includes note re: Cheney statements (FN32)
  3                     (FN15)                  Includes note re: Cheney statements (FN32)
  9                                             Includes note re: Cheney statements (FN32)
 49                                     Libby meeting notes
 54                     (FN15)          Libby meeting notes
 61                     (FN15)
 70
 75     (FN10)                          Libby's task list for June 10, 2003 (FN32)
 76     (FN10)                                  Includes note re: Cheney statements (FN32)
 78
 79
 81                                     Libby meeting notes
 82
 83
 85                                     Libby meeting notes
 87
 89
 90
 93
 94
 95
 96
109                     (FN15)
113                     (FN15)
115                     (FN15)
116                     (FN15)
122
124
125
166                                             Includes note re: Cheney statements (FN32)
167
171
172
176
177
178     (FN10)                                  Includes note re: Cheney statements (subject of Libby memo - Doc 195)
179                                             Includes note re: Cheney statements (FN32)
181                                             Includes note re: Cheney statements (FN32)
182
183
186
189
190
202
203
217
218
222
229                     (FN15)
235                     (FN15)
254             (FN14)
256             (FN14)
268             (FN14)                          Includes note re: Cheney statements (FN32)
305
308
336             (FN14)
338
357             (FN14)
359             (FN14)
360             (FN14)
361
362             (FN14)
409                     (FN15)
411

-- page 16 --

A. Documents and Information Related to the "Memory Defense"

As noted earlier, the defendant seeks to introduce documents and 
the information contained therein relating to nine different 
subject areas, which he contends occupied his time and focus of 
attention during the relevant time periods. These nine topics 
are:

Nine categories of topical summaries, prepared by Libby

  1. threatened attacks on Americans and American interests by Al 
     Qaeda, Hezbollah, and other terrorist groups

  2. enhancing the United States defenses for Homeland Security

  3. nuclear proliferation by Pakistani scientist A.Q. Kahn and 
     efforts by the United States to stop his activities

  4. the development of nuclear weapons by North Korea

  5. Iran's development of nuclear weapons, its arrest and 
     potential harboring of Al Qaeda members, and its involvement
     in Iraq

  6. the proper size and role of the Iraqi military and security 
     forces in the months following the fall of Saddam Hussein's 
     regime and the proper composition of the governing entity in 
     Iraq

  7. the Israeli-Palestine relationship, including the emergence 
     of Mahmaud Abbas (Abu Mazen) as an alternative to Yassar Arafat 
     and the threat that Hamas posed to peace and security

  8. a tense diplomatic crisis that arose during the first half of 
     July 2003 resulting from the arrest of Turkish soldiers in Iraq 
     by the United States military

  9. the unrest in Liberia in June and July 2003, culminating in 
     the ousting of President Charles Taylor from his office in early 
     July 2003, the danger to the United States Embassy and its 
     occupants in Monrovia, Liberia and the United States role in 
     protecting civilians caught in the middle of the conflict in 
     Liberia

Three groups of documents

The classified documents and information identified by the 
defendants as relevant to his memory defense that fall within 
these nine categories can be divided into three groups.  The 
first group includes the [redacted ("PDB"?)] material provided to 
the defendant, [redacted].

-- page 17 --

The second group contains the classified information in the nine 
topic narratives contained in the defendant's Section 5 CIPA 
notice.  And finally, the documents themselves, which comprise 
primarily the defendant's notes.  The Court will address each set 
of documents separately. ^18

Summary of Court's Opinion on the First Category

The Opinion reads as though [redacted] is a reference to PDB's, which are apt to recite specific terrorist threats (and other issues) by name and location.

An appendix to the opinion contains a list of names, locations and phrases that must be redacted from the documents. The intent here is to avoid confusing the jury with a plethora of names that they don't recognize. Libby may use al Qaeda, Hezbollah, Saddam Hussein, and other well-known identifiers. The appendix runs about 2 and a third pages in length, and is fully redacted.

Defendant's testimony is further restricted, in this category, in that he cannot link the source of information (probably PDB) to his possession of the information. In other words, Libby can show these issues were presented to him, but not attach that they came to him as material intended to guide the President. He can say "as the National Security Officer for the Vice President, he believed that the intelligence information he was provided was the best information on the subject."


1. [redacted] ^19

The defendant seeks to introduce portions of information 
[redacted ("from the Presidential Daily Briefings"?) FN20 
redacted] The information he seeks to introduce references those 
activities that the defendant contends were consuming his time 
and attention.  As this Court has discussed in earlier opinions, 
this case is about whether the defendant provided false 
statements to Special Agents of

FN18 The record in this case details, often times at great 
length, the various government objections to the defendant's 
request to use the classified documents and information.  The 
Court has largely addressed all of the objections raised by the 
government.  Accordingly, the Court finds no need to repeatedly 
set forth the government's document-by-document objection unless 
the objection has merit.

FN19 It is important to note at the outset that this Court's 
rulings regarding [redacted (about 24 characters)] material is 
limited first by its earlier ruling concerning the relevant 
dates, and second, by the fact that the defense, during the 
Section 6(a) hearings, made oral proffers concerning the level of 
detail the defendant's anticipated testimony would entail 
concerning the information contained in these documents.  While 
this court, of course, cannot mandate that the defendant's 
testimony follow the oral proffers verbatim, defense counsel's 
proffer, based on his representation that it essentially 
constituted the level of detail the defendant himself would 
present through his testimony, provides a guide for both parties 
as to the level of detail this Court will deem permissible under 
Rules 401 and 403, as the Court has found what counsel indicated 
reasonable.

-- page 18 --

the FBI and false testimony to the grand jury.  See Libby, 429 
F.Supp.2d at 15.  Thus, it is the state of mind of the defendant 
that is at issue (and, to a lesser extent, the state of mind of 
the media witnesses and various other government witnesses).  
However, [redacted] themselves are not relevant, as they do not 
show what the defendant believed was important or what matter the 
defendant devoted his efforts to on a given day. material 
provided to the defendant, [redacted].  The exception, of course, 
are those inquiries made by the defendant, [redacted] in response 
to reviewing these documents."  [redacted] However, the defense 
has affirmatively stated that the defendant intends to testify on 
his own behalf.  It will therefore be the defendant's testimony 
about what he was focused on and that his workday was consumed by 
the information [redacted ("in the PDB's"?)] that makes the 
classified information contained in these documents relevant 
under Rule 401.

While the classified information [redacted ("in the PDB's"?)] 
along with the defendant's testimony that will be based on the 
content is relevant, this conclusion does not end the Court's 
inquiry.  The Court must further determine whether there are any 
other evidentiary grounds that merit the exclusion of otherwise 
relevant classified evidence the defendant desires to present at 
trial, either in whole or in part.  Rule 403 provides such a 
predicate.  For instance, the defendant anticipates testifying 
that the intelligence information [redacted]. Moreover, he asserts 
tat he focused to a greater extent on

-- page 19 --

intelligence that [redacted ("came to him in a PDB"?)] than he 
did on information that [redacted].  Accordingly, the defendant 
posits that it was entirely reasonable that his time and 
attention was consumed by the information contained in these 
documents.  The Court agrees.

While the substance of the classified information [redacted ("in 
the PDB's"?)] is relevant, the court must conclude that testimony 
or documents linking the information to the fact that it is 
contained in such a highly classified document is inadmissible 
because the probative value of the source of this information is 
far outweighed by the danger that the linkage will potentially 
cause unfair prejudice and distract the jury from focusing on the 
issues it is being asked to decide.  Permitting the defendant to 
testify that he received specific intelligence information 
[redacted ("from the PDB's"?)] standing alone, has no probative 
value. [sentence(s) redacted] Not only would such disclosures be 
irrelevant, but it would cause the jury to give undue 
consideration to a matter that has no bearing on the issues that 
are germane to this case.  Accordingly, while the defendant can 
testify about the information in [redacted ("the PDB's"?)] 
subject to other limitations set forth in this opinion, he may 
not testify that the information originated [redacted ("in the 
PDB's"?)].  Moreover, although the defendant is precluded from 
stating that the intelligence information originated [redacted 
("in the PDB's"?)]

-- page 20 --

he is welcome to state that as the National Security Officer for 
the Vice President, he believed that the intelligence information 
he was provided was the best information on the subject."  
Accordingly, he can testify that he took such information very 
seriously.  The restriction imposed by this opinion excludes 
[redacted] but still provides the defendant with a full 
opportunity to testify about the substance of the information.

In addition [redacted] there are portions of these documents 
themselves that must be excluded because their probative value 
is substantially outweighed by both (1) the confusion 
introduction of the information would create for the jury and (2) 
the undue waste of time that would result from the introduction 
of the evidence. [sentence(s) redacted - FN21 redacted] While 
these documents at times do discuss groups and individuals that 
are well known, such as Hezbollah or al Qaeda, often these 
documents discuss individuals and groups whose names are not 
commonly known by the general public (and therefore the 
individuals who will comprise the jury), [redacted lines - FN22 
redacted]. References to this later category of names will be 
excluded under Rule 403 for a variety of reasons.  First, the 
probative value of identifying these groups is minimal, at best, 
since their names will in all likelihood not be known by jurors.  
Moreover, introducing the names of multiple terrorist groups, 
terrorist, and sources of information will undoubtedly confound 
the jury, as it is likely that its members will focus on trying 
to assess where those

-- page 21 --

groups and individuals fit into the various threats that were 
being made against the United States and our allies, rather than 
simply focusing on the fact that defendant was exposed to what 
the government will acknowledge was information of significant 
importance to the defendant.  Furthermore, introducing the names 
of these various terrorist groups, terrorists, and source and 
methods of intelligence gathering will unduly waste time.  For the 
jurors to appreciate why the defendant would be concerned about 
these unfamiliar names, he would have to explain who these groups 
and individuals are and why the United States, and the defendant 
in particular, had interest in their activities.  And this is 
unnecessary in light of the government's decision not to 
challenge their importance.  Accordingly, the Court concludes 
pursuant to Rule 403 that reference to organizations and 
individuals listed in the appendix to this opinion must be 
redacted [redacted] and no reference can be made to them during 
the trial. ^23 However, the defendant is welcome to suggest 
generic substitutes for the names of these groups and individuals 
if doing so will aid his defense.  On the other hand, because the 
same problems do not arise in connection with names that are well 
known ^24 the defendant will be permitted to use them as part of 
his defense.

In addition to the redactions discussed above, any testimony 
concerning classified

FN23 The parties should note that when making it initial rulings 
in this matter, this Court may have overlooked some references to 
these individuals in various documents.  It is the Court's 
intention that references to these groups or individuals in any 
document must be avoided.  In addition to such names, thus Court 
has also excluded reference to certain locations and other 
phrases in various documents under Rule 403; [redacted]

FN24 These names include, for example, Hezbollah, al Qaeda, and 
Saddam Hussein.

-- page 22 --

information [redacted] shall also be limited by the restrictions 
discussed earlier.  Unless [redacted] falls within the time 
frames identified above as relevant, the defendant (or any other 
witness) may not testify to the details contained within the 
documents.  Rather, references to this classified information 
must be identified as nothing more than "dots" on the defendant's 
Power Point presentation, or in some similar non-descriptive 
manner.  Accordingly, for the foregoing reasons, the defendant 
will be permitted to introduce the substance of the classified 
information [redacted ("from the PDB's"?)] as limited above.

2. The Topical Summaries Contained in the Defendant's Consolidated 
   Section 5 Notice

This material covers May 6, 2003 to May (should be March) 24, 2004

The court orders redactions of defendant-prepared narrative summaries under Rule 403, mostly names and places that are not commonly familiar.


-- page 23 --

Topic 1: The summaries are not to mention a certain country by name. By the length of the redaction, I would guess "Lebanon" or "Israel," more likely Israel as the Court says, "... such testimony would likely lead the jury to unduly focus on the foreign affairs of the country, which is totally irrelevant to this case."


-- page 24 --

Footnotes 26 and 27 illuminate Libby's role in the OVP.


FN26 The Court had initially removed all such references ("the 
President and his advisers") throughout the narrative portion of 
the defendant's Section 5 notice.  However, after further 
discussion with the parties, the Court concluded that such 
language should only be removed when it refers to information 
being provided to others in the Administration, and should remain 
intact to the extent that the language shows what the defendant 
and others were actually working on.  Removing the language in 
the second instance would make it appear that only the defendant 
was tasked to do certain projects, thus providing a false picture 
to the jury of exactly what was consuming the defendant's time 
and attention.

FN27 During this Court's initial review of the defendant's 
narrative summaries, it was inclined to exclude certain portions 
of the narrative summaries because it appeared that, as drafted, 
the defendant had not been involved in the activity related to 
these items of classified information.  After further discussions 
with the parties, it was proffered by defense counsel that the 
defendant was actually involved in these activities.  
Accordingly, these portions of the narrative will not be 
excluded.

-- page 25 --

Topic 2: The Court does not rule on the admissibility of unclassified portions of this narrative, and excludes a portion of the summary narrative that appears to link a shortage of (my guess) vaccine to a specific threat. The Court permits Libby to testify of concern about the shortage.


FN 29 This Court also noted during the hearing that the 
discussion on page 26 of the defendant's Section 5 notice, which 
reads, "such as advanced elements of Biowatch (city-wide, near 
real-time agent detection) or Bioshield (advanced development of 
potential new medicines or vaccines)," was not relevant and 
should be excluded.  It is this Court's understanding, however, 
that this statement is not classified.  Accordingly. even though 
the Court continues to question the relevance of this 
information, it need not make a definitive ruling on the 
admissibility of the statement at this time.

-- page 26 --

Topic 3: The Court has excluded two particular references in the summaries, and has also excluded the documents that contain those references.

Topic 4: Libby has agreed to modify the narrative, and as modified, it is not excluded.

Topic 5: Other than removing the name of a not-commonly-known terrorist organization, the narrative summary is not excluded.

This is interesting, as the topic is Iranian nuclear weapons development.

Topic 6: The Court excludes all portions outside of the critical dates, and one particular reference.



-- page 27 -- 

Topics 7, 8 and 9: The Court makes no exclusions under Rules 401 or 403.


-- page 28 --

3. The Classified Information Contained in the Documents ^30

Based on the Court's rulings, there are thirty-five documents 
[redacted - FN31 redacted] containing classified information 
which the defendant seeks to introduce at trial in whole or in 
part.  After reviewing these documents, the Court must exclude 
certain portions under either Rule 401, 403, or both.  The Court 
will begin with the information contained in these documents that 
apply to multiple documents.

Some portions of those documents must be redacted. With regard to Libby's notes, the names of people present at meetings is not relevant, and even if it was, it would excluded under Rule 403.


Many of the documents proffered by the defendant are notes that 
he took at various meetings.  Almost without fail, at the top of 
each set of his notes, the defendant has written the date and 
time of the meeting, the location, who was present (and whether 
those present constituted, for example, the National Security 
Counsel, the War Counsel, the Principal's Committee, or the 
Deputy's Committee), and how the individuals participated in the 
meetings (live or via teleconferencing). See e.g., Doc. 49, 54, 
81, & 85.  Other than the date and time of the meeting, and the 
fact that the defendant was a participant, the additional 
information in his notes referenced above is simply not relevant.  
As this Court has repeated time and again, it is what the 
defendant contends was dominating his attention that is critical 
in this

FN30 It is important to note that the Court greatly appreciates 
the parties diligent efforts to resolve their disputes amicably.  
And, the parties' collaborative efforts have resolved a number of 
disputes. [redacted]

-- page 29 --

case.  Whether or not another administration official was present 
at these meetings is simply irrelevant.  Even if this Court could 
conclude that such information was relevant, it would nonetheless 
be excluded under Rule 403 because such information would mislead 
and confuse the jury for the following reasons.  First, if the 
jury were exposed to the entire cast of characters at each of 
these meetings, they would undoubtedly lose site (sic) of what is 
important to this case -- the activities on which the defendant 
was purportedly focusing his time and attention.  Rather, the 
jury would likely also focus on the matters these other 
administration officials were exposed to and that assessment 
would have nothing to do with the issue the jury will be asked to 
resolve in this case.  Thus, the names of these participants will 
be excluded.  The same is true for entries in documents that list 
what administration officials the defendant anticipated would be 
present at future meetings.  See Dec. 115.

The defendant's meeting notes also often contain statements made 
by various meeting participants.  For the same reason expressed 
alone (sic), the defendant may not, under Rule 401 and 403, 
generally attribute to his own state of mind statements made by 
other meeting participants.  That cannot be said, however, for 
statements attributed to the Vice President of the United States.  
There can be little argument that the Vice President's state of 
mind and actions would have significant impact on the state of 
mind and actions of the defendant, who served as his Chief of 
Staff and National Security Adviser.  Accordingly, since the Vice 
President is the defendant's direct supervisor, the jury could 
reasonably infer that statements made by the Vice President in 
the defendant's presence impacted the defendant's state of mind. 
^31 Therefore, the defendant will

-- page 30 --

be permitted to reveal statements made by the Vice President as 
memorialized in documents 2, 3, 9, 75, 76, 166, 178, 179, 181, 
and 268. ^32

Other than the limitations set forth in this section, the Court 
must also conclude that certain portions of these documents must 
be excluded under Rules 401 and 403.  First, for the same reasons 
discussed in the context of [redacted ("the PDB's"?)] there are 
certain names that must be excluded as they are not relevant and 
their introduction would violate Rule 403's prohibition on 
introducing testimony that would confuse the issues the jury has 
to address and waste time.  Those names appear in the appendix 
to this opinion. ^33 And there are two documents that require 
more substantive redactions under Rules 401 and 403.  One is 
document [two lines redacted] While the fact that defendant 
received this information is relevant, the details outlined in 
this document is not necessary and is therefore irrelevant.  
Accordingly, the following material must be redacted --[redacted]

FN31 While the same can be said for other high-level 
administration officials such as CIA Director George Tenent (sic) or 
then National Security Advisor Condoleeza Rice, any impact 
statements made by these officials had on the defendant's state 
of mind would undoubtedly pale in comparison to the impact 
statements made by the Vice President would have, as the 
defendant's immediate supervisor.  While this Court will not 
categorically exclude statements made in the defendant's presence 
by other administration officials, the defendant will have to 
make an adequate showing that such statements impacted his state 
of mind.

FN32 The Court does note, however, that at least as to document 
179, it is the Court's understanding that the defendant does not 
intend to introduce the actual back-and-forth of that 
conversation.

FN33 For these same reasons, the Court also finds it appropriate 
to redact certain other terms contained in particular documents 
under Rules 401 and 403; [redacted]

-- page 31 --

In addition to being irrelevant, this level of detail concerning 
[redacted] would likely confuse the jury and cause them to focus 
on matters that are not at issue in this trial.  Similarly, 
[redacted] contains a significant amount of information 
concerning [redacted] details that are simply irrelevant and 
which will likely also confuse the jury.  This information will 
therefore be excluded under Rules 401 and 403. [FN34 redacted]

B. Documents and Information Related to Ambassador Joseph Wilson
   and Niger

The final group of documents that this Court must examine are 
those relating to Ambassador Joseph Wilson and Niger.  As to 
these documents, the parties have been able to resolve virtually 
all of their disputes.  In fact, of the twenty-nine documents 
that remained at issue as of September 27, 2006, the parties have 
now informed the Court that they need a

-- page 32 --

definitive ruling on only one document. ^35

Document 75, Libby's task list for June 10, 2003, is at issue. Significant portions of that are to be redacted as irrelevant.


Document 75 is the defendant's task list for June 10, 2003. ^36 
In this document, the defendant lists the many action items he 
was to address [six lines redacted] However, the fact that [three 
lines redacted] is all irrelevant and must be excluded for the 
following reasons.  First, the average person will not know 
[redacted] and thus introduction [redacted] would waste time as 
the background of this [redacted] would have to be explained to 
the jury, without there being any benefit derived from the 
explanation.  Moreover, introducing [redacted] would confuse and 
mislead the jury by diverting their attention from the task 
actually before them.  Accordingly, the

FN35 As of the writing of this opinion, document 178 was still at 
issue as well.  The dispute as to this document appears to be 
extremely minor and the parties believe that they may be able to 
resolve their differences amicably.  Accordingly, the Court need 
not address it at this time.  In addition, it is important to 
note that while the parties have reached agreements as to the 
use, relevance and admissibility of these documents, they have 
not reached agreement on possible substitutes or redactions under 
Section 6(c).

FN36 [redacted]

-- page 33 --

statement in this document that [redacted] will be excluded under 
Rule 403.  However the defendant may state generally [redacted].

III. Conclusion

The Court makes general statements regarding the efficacy and difficulty of CIPA, and asserts that ...


... the Court has made its Section 6(a) determinations with a 
slant towards admissibility, to ensure that the defendant has 
every opportunity to present his chosen defense.

-- page 34 --

... Thus, this Court reserves, as it must, the right to alter the 
rulings set forth herein, and declare otherwise relevant evidence 
inadmissible under either Rule 401 or 403, depending upon how the 
facts are actually developed during the trial.

        SO ORDERED this 15th day of November, 2006.

-- page 35 --

Appendix

[fully redacted]

-- pages 36, 37 and 38 --


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