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Saturday, December 30, 2006

Dow Jones December 20, 2006 Motion to Unseal

Contrary to my first report posted hours ago, this motion ...

       12/20/06  MOTION filed (Captioned MOTION of AMICI CURAIE DOW JONES
                 and the AP to UNSEAL)(5 copies) by Amicus Curiae for
                 Appellant Dow Jones Co Inc in 04-3138, Amicus Curiae for
                 Appellant Assoc Press in 04-3138 (certificate of service
                 dated 12/20/06 ) [1012356-1]

... was NOT filed under seal.

A small share of blame for reporting the presence of official secrecy might go to the Circuit Court clerks and the photocopy service for asserting that this motion was filed under seal. But given the nature of the filing, it is beyond ken that this filing would be under seal, and I have to take full responsibility for repeating via post that "the DJ Motion of December 20 was filed under seal." Additional research was certainly called for before piping up, and additional research resulted in finding that the filing was not under seal.

To the notion that this filing will produce something useful to the Libby trial, I have a one-word response. "Nonsense." The Court (with Fitzgerald's agreement) already released more than Dow Jones asked for in November, 2005 (Dow Jones didn't ask then for the release of affidavits, it asked only for release of redacted portions of the Opinion), and the Court released everything in the "Motion to Compel Reporter Testimony" that related to the prosecution of Libby. Any further releases are irrelevant to the question of whether or not Libby lied to investigators.

As to the notion that grand jury testimony relating to investigation of Rove should become public, based on Rove's admission, Armitage coming clean, and other public revelations to date, I assume the Court will reject the notion and the motion. The court and grand jury won't "lead" the publication of secret testimony, although they may well (and should) follow. Sure, we might see revelations such as "Karl Rove testified on such and so date," and technically, that constitutes the Court releasing more information. But I don't expect a release that documents why the Special Counsel was considering Rove as a target for a false statements and/or perjury charge, and I think that's what the bulk of the redactions comprise.

Transcribed by hand with only a spell check as a crutch. Blame me for typos, but pin your substantive criticism on Theodore J. Boutrous, Jr., Thomas H. Dupree, Jr. and Jack M. Weiss, all of Gibson, Dunn & Crutcher, LLP.

... ---oooOOO===OOOooo--- ...

MOTION OF AMICI CURIAE DOW JONES
AND THE ASSOCIATED PRESS TO UNSEAL

    More than three years ago, the Deputy Attorney General of the United States appointed United States Attorney Patrick Fitzgerald to investigate the disclosure of the identity of CIA operative Valerie Plame. The principle questions at the time were whether the disclosure of Ms. Plame's identity was part of a concerted effort originating in the White House to discredit her husband, who was a critic of the President's war policies, and whether the disclosure violated federal criminal laws, including the Intelligence Identities Protection Act. As part of his investigation, the Special Counsel obtained orders compelling two reporters to disclose their conversations with confidential sources or be imprisoned; those orders ultimately led to one of the reporters being imprisoned for nearly three months.

    Recently, the public learned that the Special Counsel's pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's name to Robert Novak, the columnist who had first published it. The public now knows that the Special Counsel knew the identity of that leaker -- Richard Armitage, the former Deputy Secretary of State -- from the very beginning of his investigation.

    This development regarding Mr. Armitage, along with recent public statements by the attorney for presidential advisor Karl Rove that the Special


Counsel has advised that Mr. Rove will not be charged in connection with this matter, justify releasing the remaining sealed portions of Judge Tatel's opinion in this case, as well as the Special Counsel's sealed affidavits. This will allow the public to gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters, and why it was necessary to imprison one of those journalists for 85 days for refusing to divulge her conversations with a different government official, I. Lewis "Scooter" Libby.

    Accordingly, pursuant to Fed. R. App. P. 27 and D.C. Circuit Rules 27 and 47.1, amici Dow Jones & Company, Inc. and the Associated Press respectfully move this Court to unseal all or some of the remaining redacted portions of Judge Tatel's opinion and the Special Counsel's sealed affidavits in this case. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138 (D.C. Cir. 2006)(ordering some, but not all, of these materials to be unsealed and stating that the Court would consider unsealing additional portions as the matter progressed). 1

--
1 Dow Jones and the Associated Press filed their corporate disclosure statements in their amicus brief submitted October 25, 2004.

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BACKGROUND

    This case arises from the disclosure of Valerie Plame's identity as a CIA operative. On February 15, 2005, a panel of this Court affirmed the district court's refusal to quash grand jury subpoenas issued to New York Times reporter Judith Miller, Time magazine reporter Matthew Cooper, and Time, Inc.

    In so holding, the panel split three ways as to whether the common law and Federal Rule of Evidence 501 recognized a reporter's confidential source privilege. The panel agreed, however, that "if [a common law] privilege applies here, it has been overcome" by the Special Counsel's ex parte evidentiary proffer that purportedly established the need for the reporters' testimony and documents. 397 F.3d at 973. The panel stated that on this point it was adopting the reasoning of Judge Tatel's concurring opinion, which devoted eight pages to explaining how the Special Counsel, with his "voluminous classified filings," had "met his burden of demonstrating that the information [sought from reporters] is both critical and unobtainable from any other source." 397 F.3d at 1002 (Tatel, J., concurring). Those pages, however, which comprised eight pages of the slip opinion, were redacted from the versions of the opinion made available to the reporters and the public on the basis that they contained nonpublic grand jury information protected from disclosure pursuant to Federal Rule of Criminal Procedure 6(e). 397 F.3d at 1002.

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    On November 2, 2005, in the wake of the grand jury's indictment of Mr. Libby, the former Chief of Staff to the Vice President of the United States, Dow Jones moved to unseal Judge Tatel's opinion in full or in part. On February 3, 2006, this Court granted the motion, unsealing certain portions of Judge Tatel's opinion, along with portions of one of the Special Counsel's affidavits that set forth his alleged need for reporters' testimony. See In re Grand Jury Subpoena, 438 F.3d 1138. The Court explained that "there is no longer any need to keep significant portions of the eight pages under seal," given that "Libby's indictment, now part of the public record, reveals some grand jury matters, and we see little purpose in protecting the secrecy of grand jury proceedings that are no longer secret." Id. at 1140. Thus, the Court "unseal[ed] those portions containing grand jury matters that the special counsel confirmed in the indictment or that have been widely reported." Id. The Court also unsealed "parts of one of the special counsel's affidavits upon which [it] relied in concluding that Miller's evidence was critical to the grand jury investigation," explaining that '[i]f the public is to see our reasoning, it should also see what informed that reasoning." Id.

    The Court declined, however, to unseal the entirety of Judge Tatel's opinion or the Special Counsel's affidavits/ The Court noted that unsealing additional portions of these documents could identify witnesses or jeopardize the Special Counsel's ongoing investigation. Id. at 1141. But the Court recognized that

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additional public disclosure could warrant unsealing the remaining portions of the opinion and affidavits, and thus emphasized that "[t]his order is without prejudice to Dow Jones's right to move to unseal additional materials at a later date." Id.

    Subsequent to this Court's February 2006 ruling, two significant events have occurred that appear to warrant the unsealing of additional materials. First, former Deputy Secretary of State Richard Armitage has publicly disclosed that he was the source of the leak that led to the first public disclosure of the CIA affiliation of Valerie Plame. See Transcript of CBS Evening News at 3-4 (sept 7, 2006) (Attached as Exh. A); David Johnston, Source in C.I.A. Leak Case Voices Remorse, N.Y.Times (Sept. 8, 2006)(attached as Exh. B). Mr. Armitage has publicly stated that he told FBI investigators that he was the person who told columnist Robert Novak that Ms. Plame worked at the CIA, and that he also discussed Ms. Plame with Washington Post reporter Bob Woodward. Id. Mr. Armitage further stated that he disclosed his role in October 2003, but that Special Counsel "asked me not to discuss this and I honored his request." Exh A at 4; Exh. B at 2. He added that the Special Counsel has now given him permission to discuss these matters publicly. See Exh. B at 2 ("This week, after news reports clearly identified him as the source, Mr. Armitage said Mr. Fitzgerald had consented to his public disclosure of his role."); see also Robert Novak, My Role in the Plame Leak Probe, Chi. Sun-

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Times (July 12, 2006)(discussing substance of his grand jury testimony)(attached as Exh. C); Robert Novak, The Real Story Behind the Armitage Story, Chi. Sun-Times (Sept. 14, 2006)(discussing conversation with Mr. Armitage)(attached as Exh. D).

    Second, an attorney for presidential advisor Karl Rove has publicly disclosed that Mr. Rove was advised by the Special Counsel that he will not be charged in connection with this matter. See CNN.com, Lawyer: Rove won't be charged in CIA leak case (June 13, 2006)(attached as Exh. E)("White House senior advisor Karl Rove has been told by Special Counsel Patrick Fitzgerald that he will not be charged in the CIA leak case, according to Robert Luskin, Rove's lawyer."). Moreover, Matthew Cooper and Robert Novak have revealed their own testimony concerning Mr. Rove. See Matthew Cooper, What I Told the Grand Jury, Time, July 25, 2005, at 38; Novak, My Role in the Plame Leak Probe, Chi. Sun-Times (July 12, 2006).

ARGUMENT

    As this Court has explained in its prior order in this case, "[g]rand jury secrecy is not unyielding," and thus "[j]udicial materials describing grand jury information must remain secret only 'to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.'" 438 F.3d at 1140 (quoting Fed. R. Crim. P. 6(c)(6))(emphasis added by the Court). The Court

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noted that its precedent "reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public" 438 F.3d at 1140. Indeed, "'[t]here must come a time . . . when information s sufficiently widely known that it has lost its character as Rule 6(e) material.'" Id. (quoting In re North, 16 F. 3d 1234, 1245 (D.C. Cir. 1994)). See also In re: Motions of Dow Jones & Co., 142 F.3d 496, 502 (D.C. Cir. 1998)(public disclosure of grand jury materials is warranted if doing so will not endanger grand jury secrecy, and "Rule 6(e)(5) contemplates that this shall be done")(emphasis added).

    Here, the public statements of Mr. Armitage and Mr. Rove's lawyer strongly suggest that additional portions of Judge Tatel's concurrence and the Special Counsel's affidavits may now be unsealed. Where, as here, the witnesses themselves have made grand jury information widely known, continued secrecy is unwarranted. In In re: Motions of Dow Jones & Co., for example, the Court held that secrecy was in appropriate when a witness' attorney "virtually proclaimed from the rooftops that his client had been subpoenaed to testify before the grand jury." 142 F.3d at 505. The Court noted that the witness' "identity as a person subpoenaed to appear before the grand jury has become [public] information, not because of press reports relying on unnamed sources, but because [the witness'] attorney decided to reveal this fact to the public." Id.

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    In this case, Mr. Armitage has publicly revealed that he was the source of the leak that led to the first public disclosure of Ms. Plame's identity; that he told FBI investigators of this fact in October 2003, before the Special Counsel had even been appointed; and that Special Counsel asked him not to publicly discuss the matter, but recently released him from that promise. Likewise, Mr. Rove's lawyer has publicly revealed that Mr. Rove is not a target f the investigation and will not be charged in this case. These disclosures strongly suggest that additional portions of Judge Tatel's opinion and the Special Counsel's affidavits can be released without compromising the interests protected by Rule 6(e). See In re Grand Jury Subpoena, 438 F.3d at 1141 (declining to unseal additional material because "publication at this juncture could identify witnesses, reveal the substance of their testimony, and -- worse still -- damage the reputations of individuals who may never be charged with crimes"); id. (noting the need to protect information concerning witnesses' "role in the investigation"). Although the Court in its prior order noted that the fact that "the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy," id., it now appears that the Special Counsel's investigation is over.

    These proceedings involve a matter of great public importance that has already received considerable publicity and public attention. In Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991), this Court emphasized "the critical

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importance of contemporaneous access . . . to the public's role as overseer of the criminal justice process." Id. at 287 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 592 (1980)(Breman, J., concurring)).

    These considerations carry special force here, where the criminal justice process has embroiled officials at the highest levels of the United States government and forced journalists to testify about their confidential sources. Unsealing the redacted portions of Jude Tatel's opinion and the Special Counsel's affidavits will enable the public to scrutinize the basis for this Court's ruling that any common law reporter's privilege was overcome. Furthermore, it will help the public understand the basis for the appointment of the Special Counsel and the Special Counsel's determination and argument that, notwithstanding Mr. Armitage's revelation in October 2003, he viewed it necessary to compel testimony from Ms. Miller and Mr. Cooper -- and force the imprisonment of Ms. Miller -- to fulfill his investigatory mandate.

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CONCLUSION

    For all the reasons set forth above, this Court should now unseal Judge Tatel's opinion and the Special Counsel's affidavits in their entirety or, at a minimum, unseal those portions that concern Mr. Armitage and Mr. Rove and that are no longer protected under Rule 6(e).

Dated: December 20, 2006

Respectfully Submitted,

Theodore J. Boutrous, Jr.
Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington, D.C 20036

Jack M. Weiss
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193

Attorneys for amici curiae

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