No Easy Answers

Sources:
http://www.usdoj.gov/usao/iln/osc/documents/final_response_dow_jones_motion_unseal.pdf
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/04opinions/04-3138c.pdf

All of the below relates to action in a series of three cases known as In Re Grand Jury Subpoenas, first lodged against reporters Judith Miller, Matthew Cooper, and Time, Inc. The purpose of "the case" was to compel reporters' testimony in the investigation by Special Counsel Patrick Fitzgerald, into the leaking of the identity of Mr. Wilson's wife as a CIA employee, and into crimes related to that investigation.

Further, all of the below relates to a Motion by Dow Jones & Co. to unseal (make public) parts of the material obtained and produced by the government as a matter of compelling testimony from reporters. This post contains, following my comments:

1. The government's December 2, 2005 Response to Dow Jones's November 2, 2005 Motion to Unseal
2. The February 3, 2006 "Motion Granted" per curiam Opinion of the Circuit Court of Appeals for the District of Columbia, In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138 (D.C. Cir. 2006)

This 2005/2006 material is background for Dow Jones's December 20, 2006 Motion to Unseal, a repetition if you will, of a legal action started over a year ago.

         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] . [04-3138, 04-3139, 04-3140]
                   {UNDER SEAL IN VAULT}. (lmf) [04-3138 04-3139 04-3140]

Taking the December 20, 2006 filing date of the recent Motion to Unseal, an estimate for date of its resolution is no sooner than March, 2007, assuming the Motion is opposed. That puts the resolution of this Motion beyond the likely conclusion of Mr. Libby's pending trial for false statements, perjury and obstruction of justice.

The time estimate is based on the months-long timeline for resolving the November 2, 2005 Motion to Unseal: Dow Jones filed a first Motion to Unseal on November 2, 2005; there was no oral argument regarding the Motion; the Circuit Court's per curiam opinion followed on January 13; and the partially unredacted target Opinion (DC Circuit Court Case No. 04-3138) was released to the public on February 3, 2006.

As you will read below, the Circuit Court also unsealed parts of Fitzgerald's August 27, 2004 affidavit (text rendition, hat tip to yargb.blogspot.com for parts). Fitzgerald's affidavit was originally filed in the DC District Court -- the appeal was taken by Judith Miller on October 15, 2004. All three of the District Court cases (1:04-mc-00407, 1:04-mc-00460, and 1:04-mc-00461) carry the title Sealed v. Sealed and are unavailable to the public. Therefore, it isn't possible to estimate the timing or contents of additional affidavits filed at the Disctirct Court based on docket entries in the underlying cases (beyond the dates that subpoenas were issued to Cooper (May 21 and September 13, 2004), Time (before August 4, 2004), and Miller (August 12 and 14, 2004)).

Now, the December 20, 2006 Motion to Unseal requests unsealing the entire Opinion as well as Fitzgerald's (multiple - two filed in the Court below, and additional affidavits filed at the Circuit Court of Appeals) sealed affidavits.

The Associated Press and Dow Jones, in court papers filed this week, asked for the release of the sworn statements Fitzgerald gave to justify subpoenas for New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper.

"Recently the public learned that the special counsel's pursuit of those reporters was entirely unnecessary for him to determine who leaked Ms. Plame's name to Mr. Novak." ...

... The only way to know that, the lawyers argued, is to unseal Fitzgerald's affidavits and the court's full legal opinion on the issue.

Associated Press, Dow Jones Ask Judge to Unseal Documents in CIA Leak Case
Friday, December 22, 2006

In addition to the sealed filings relating to the appeal in the first place, the docket sheet at the D.C. Circuit Court of Appeal lists these government filings and affidavits. The list is interspersed with docket entries indicating Court Orders.

         12/2/05   NOTICE of filing sealed ex parte exhibits filed by Appellee
                   USA [935206-1]

         12/2/05   RESPONSE with Ex Parte Exhibits filed [935212-1]

         12/7/05   PER CURIAM ORDER filed [936081] Directing the government to
                   file a detailed description of the Special Counsel's
                   analysis in a sealed, ex parte affidavit by 4:00 on
                   12/13/05.

         12/13/05  NOTICE filed by Appellee USA [937230-1] of filing Sealed Ex
                   Parte Affidavit.

         12/13/05  SUPPLEMENTAL EXHIBIT to [937233-1] response [935212-1]
                   filed by Appellee USA

         12/13/05  EX PARTE & UNDER SEAL RESPONSE filed [937235-1]

         1/13/06   PER CURIAM ORDER filed [942675] granting motion of Dow
                   Jones Co, Inc., et al. to unseal the court's December 15,
                   2005 order. 938528-1]

         1/13/06   NOTICE filed by Appellee USA of filing Sealed Ex Parte
                   Affidavit. [942757-1]

         1/13/06   RESPONSE filed EX PARTE & UNDER SEAL, which contains
                   classified documents [942758-1]

         1/17/06   REDACTED RESPONSE filed EX PARTE & UNDER SEAL [943183-1]

Comments Relating to Filings

The media allegation and complaint is that the investigator, Fitzgerald, was looking only at perjury, and not at "who outed Plame." Because of that focus, says the media, no reporter should have been compelled to testify. Judge Tatel's separate opinion -- concluding that Miller must testify (starting at page 43 of the pdf file, In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005) Case No. 04-3138) -- turns on the ability of the government to show actual harm. In this opinion, Tatel's reasoning involves his assumption that Plame was covert (at p.80 of the pdf, p.38 of Tatel's separate opinion). Absent a showing of harm or possible harm to the government (e.g., outing the agent - more than false statements or perjury), Judge Tatel would not compel a reporter to testify.

Bringing this Motion and publicizing it will add fuel to the political fire. There is substantial pressure in favor of crafting a statutory federal reporter's privilege, and where it can be shown that an investigator compelled reporter's testimony merely to prosecute perjury, Congress is more likely to provide a reporter shield.

In his Response to the Nov. 2005 Motion to Unseal ("Resp. to Mot."), Fitzgerald said,

After being served with the instant motion, the Special Counsel arranged for the classification review of the redacted portions of this Court's February 15, 2005 opinion by the relevant agency. Based on that review, it has been determined that the redacted pages contain no references to information that is classified as of November 30, 2005. Thus, the presence of classified information no longer provides a reason for maintaining the secrecy of the redacted pages. (Resp. to Mot. at 3, 4).

That leaves "grand jury secrecy" as the sole reason for redaction of "the Opinion" (In re: Grand Jury Subpoena, 397 F.3d 964), and in particular, protecting grand jury information that reveals targets (Rove) and/or the identity and testimony of witnesses that is not used in a public proceeding. However, Fitzgerald's January 13, 2006 Response to the Circuit Court of Appeals included classified documents.

Government filings after the Circuit Court's decision to unseal parts of the opinion and parts of the affidavits must go to the extent of disclosure, as disclosure itself had been ordered. I suspect that the "classified" material filed on January 13 was used to prevent the public release of parts of a Fitzgerald affidavit, as "[the Opinion] contain no references to information that is classified."

I expect little, if any further releases of the Opinion, because the material in it, that is presently out of public view, appears to relate to Rove, who hasn't been (and won't be) charged.

The December 20, 2006 Motion may, however, be used by the Circuit Court to revisit Tatel's opinion, and in particular to revisit his basis for finding that Miller should be compelled in this case. Tatel's opinion was based on belief that the investigator thought Mrs. Wilson was "covert," if not within the boundaries defined in 50 U.S.C 426 (of The Intelligence Identities Protection Act), at least to the extent that the national security would suffer harm if certain details of her employment relationship with the CIA became public.

Some people hold the thought that one of the Fitzgerald affidavits will either assert Plame's "covert" or "classified" status, or deny it. I doubt either will be so. At most, Fitzgerald has hinted at the CIA status of Plame. He hinted at that in FN 15 on page 28 of his August 27, 2004 affidavit.

If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Title 18, United States Code, Section 793 if the information is considered "information respecting national defense." In order to establish a violation of Title 50, United States Code 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who has carried out cover work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work. [emphasis added]

Fitzgerald has only hinted, and that in a round-about way, that the only charges he was pursuing were false statements and perjury. When the December 20, 2006 Motion of Dow Jones and AP is resolved, I believe the situation will remain that way. The public may have more hints, but it will not have an unequivocal assertion either way, regarding Fitzgerald's state of mind as he continued his investigations (and prosecution of Libby) past learning that Armitage was the leaker to Novak. I suspect this condition would exist if everything was made public.

Pieces of Eight - Opinion Journal - Dec 6, 2005

Even before we've seen the redacted pages, Mr. Fitzgerald's filing is revealing about the limited nature of his prosecution. Most notably, he more or less concedes that the information in the eight redacted pages is all related to contradictory testimony (hence the charges of perjury and obstruction of justice), not to any deep government secrets. He even notes that none of the redacted material is still classified. So much for the media and partisan speculations that this scandal was about a great national security cover-up.

This also suggests that Mr. Fitzgerald very early in his probe concluded that there was no crime committed in leaking Valerie Plame's name, or any other classified information, to the media. Instead, his investigation focused on nailing Mr. Libby or someone else for making false statements.

As it was then, it's the same now. Those on the left persist in looking for conspiracy, and those on the right persist in excusing perjury "as long as our guy is doing it." To be fair, folks on the left excuse it too, when "it's only about sex."

For a well executed humorous take on the Dow Jones filing, see patrickjfitzgerald.blogspot.com, always a fun place to visit.

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                         ORAL ARGUMENT HELD ON DECEMBER 8, 2004

                              UNITED STATES COURT OF APPEALS
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT

....................................................................................
                                                                                   :
In Re Grand Jury Subpoenas, Judith Miller                                          :   Case Nos. 04-3138, 04-3139 and
In Re Grand Jury Subpoenas, Matthew Cooper                                         :   04-3140
In Re Grand Jury Subpoenas, Time Inc.                                              :
....................................................................................

           GOVERNMENT'S RESPONSE TO MOTION OF DOW JONES & CO.
           TO UNSEAL REDACTED PORTION OF THE COURT'S OPINION

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

Special Counsel, respectfully submits this response to the motion of Dow Jones & Company,

Inc., Amicus Curiae, to unseal all or part of the redacted portion of the Court's opinion issued

on February 15, 2005. As set forth below, while the Special Counsel does not object to the

unsealing of specified portions of the redacted opinion for which continued secrecy does not

appear necessary, the Special Counsel has concluded that the remainder of the redacted pages

should not be disclosed.

                                        BACKGROUND

           The consolidated appeals in this case arose from civil contempt proceedings

conducted during an ongoing federal grand jury investigation concerning alleged leaks to

reporters of purportedly classified information by one or more government officials. New

York Times reporter Judith Miller, Time Magazine reporter Matthew Cooper, and Cooper's

employer, Time Inc., challenged grand jury subpoenas issued to them, claiming that a

reporter's privilege relieved them of their obligation to provide testimony or documents in

---

response to the subpoenas. The district court rejected the reporters' claims and, when the

reporters refused to testify despite the court's unfavorable rulings, held them in civil

contempt of court.

       Although the government took the position in the district court that it was not legally

required to make any factual showing prior to demanding compliance with the subpoenas,

in order to assure the court that the subpoenas were appropriate, the government submitted,

ex parte and under seal, detailed descriptions of the progress of the investigation which

included specific references to grand jury witness testimony and materials identified as

"classified," and an extensive description of the strategy and direction of the investigation.

Likewise, on appeal, in order to maintain the confidentiality of the sealed materials and the

integrity of the investigation, which was then, and remains, ongoing, the government

provided its ex parte submissions to this Court ex parte and under seal.

       On February 15, 2005, a panel of this Court affirmed the judgments of the district

court, with all three members of the panel voting to affirm. In re: Grand Jury Subpoena,

Judith Miller, 397 F.3d 964 (D.C. Cir. 2005). Judge Tatel wrote a separate opinion in which

he set forth a detailed analysis of the evidence contained in the Special Counsel's ex parte

submissions to explain his conclusion that the information sought by the subpoenas was

"both critical and unobtainable from any other source," and that, thus, any conceivable

privilege was overcome. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d at 989-91

(Tatel, J., concurring). The other two members of the panel concurred in this portion of



                                              2

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Judge Tatel's opinion. Id. at 973 (Sentelle, J., Opinion for the Court)(stating that "[a]ll

further believe, for the reasons set forth in the separate opinion by Judge Tatel, that if such

a privilege applies here, it has been overcome.") The Court redacted those portions of Judge

Tatel's opinion that referred to classified and grand jury information, and the publicly-

available opinion notes these redactions. Id. at 1002. The redacted portions of Judge Tatel's

separate opinion (the "redacted pages") were filed under seal. This procedure facilitated

review by the Supreme Court without compromising classified information or grand jury

material.

       This Court denied the reporters' petitions for rehearing on April 19, 2005. The

reporters' petitions for certiorari were denied on June 27, 2005.

       On October 28, 2005, the grand jury returned a five-count indictment charging I.

Lewis "Scooter" Libby with obstruction of justice, perjury, and making false statements to

federal investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001. Beginning before

the return of the indictment and continuing through the present, the Special Counsel has

arranged to have documents obtained and generated during the course of the investigation,

including grand jury transcripts, reviewed by the appropriate agencies for the purpose of

identifying classified information and of assessing whether relevant documents may be

declassified, with a view toward making such documents available to defendant in discovery,

and to facilitating the use of such documents in public filings and proceedings.

       After being served with the instant motion, the Special Counsel arranged for the


                                              3

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classification review of the redacted portions of this Court's February 15, 2005 opinion by

the relevant agency. Based on that review, it has been determined that the redacted pages

contain no references to information that is classified as of November 30, 2005. Thus, the

presence of classified information no longer provides a reason for maintaining the secrecy

of the redacted pages.

       The grand jury investigation that led to the indictment of Mr. Libby is ongoing. ^1

                                         ARGUMENT

I.     Applicable Law

       The Supreme Court consistently has recognized that "the proper functioning of our

grand jury system depends upon the secrecy of the grand jury proceedings." United States

v. Procter & Gamble Co., 356 U.S. 677, 681 (1958)(emphasis added). In its decision in this

case, this Court noted the reasons for grand jury secrecy catalogued by the Supreme Court

in Douglas Oil :

       (1) disclosure of pre-indictment proceedings would make many prospective witnesses
       "hesitant to come forward voluntarily, knowing that those against whom they testify
       would be aware of that testimony"; (2) witnesses who did appear "would be less likely
       to testify fully and frankly as they would be open to retribution as well as
       inducements"; and (3) there "would be the risk that those about to be indicted would
       flee or would try to influence individual grand jurors to vote against indictment."

In re Grand Jury Subpoena, Judith Miller, 397 F.3d at 973 (quoting In re North (Omnibus

Order), 16 F.3d 1234, 1242 (D.C. Cir., Spec. Div., 1994 and Douglas Oil Co. of California


       1
          The investigation is continuing before a new grand jury, because the grand jury that
returned the indictment against Mr. Libby expired by statute, and could not be extended.

                                                4

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v. Petrol Stops Northwest, 441 U.S. 211, 218 n. 9 (1979))(quotation marks omitted). As

Judge Tatel put it in his concurrence to the denial of rehearing:

       Telling one grand jury witness what another has said not only risks tainting the later
       testimony (not to mention enabling perjury or collusion), but may also embarrass or
       even endanger witnesses, as well as tarnish the reputations of suspects whom the
       grand jury ultimately declines to indict. Strong guarantees of secrecy are therefore
       critical if grand juries are to obtain the candid testimony essential to ferreting out the
       truth.

See generally In re Grand Jury Subpoena, Judith Miller, 405 F.3d 17, 18 (D.C. Cir.

2005)(Tatel, J., concurring)(citation omitted). For these reasons, it is well settled that,

"[u]nlike typical judicial proceedings, grand jury proceedings and related matters operate

under a strong presumption of secrecy." In re Sealed Case, 151 F.3d 1085, 1069-71 (D.C.

Cir. 1998).    See also  United States v. R. Enterprises, Inc., 498 U.S. 292, 299

(1991)(suggesting that courts require in camera disclosure of the subject of investigation in

order to discourage routine use of motions to quash as a form of discovery); In re Sealed

Case, 199 F.3d 2000 (D.C. Cir. 2000)(stating that in the grand jury context "privacy and

secrecy are the norm"); In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C. Cir.

1998)(approving ex parte review in applying the crime-fraud exception to the attorney-client

privilege). While secrecy remains an issue even after a grand jury has been discharged, the

need to preserve the confidentiality of grand jury proceedings is most acute where the grand

jury's investigation is ongoing.   See, e.g., Butterworth v. Smith, 494 U.S. 624, 632

(1990)(noting that some interests served by grand jury are less significant after grand jury has

been discharged).

                                               5

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       The Federal Rules of Criminal Procedure protect grand jury secrecy by prohibiting

grand jurors, attorneys for the government, and others serving in official capacities from

disclosing matters occurring before the grand jury. Fed. R. Crim. P. 6(e)(2)(B). In addition,

the Rules require that judicial proceedings ancillary to the grand jury must be closed to the

extent necessary to prevent such disclosure, and requires that "records, orders and subpoenas

relating to the grand jury's proceedings shall remain under seal to the extent and for such

time as necessary" to prevent such disclosure. Fed. R. Crim. P. 6(e)(5) and 6(e)(6). Local

Criminal Rule 6.1 of the district court for the District of Columbia provides that documents

related to the grand jury may be made public only upon "a finding that continued secrecy is

not necessary to prevent disclosure of matters occurring before the grand jury." L. CR. R.

6.1. The term "matters occurring before the grand jury" includes "the identities of the

witnesses, the substance of testimony, and the "strategy or direction of the investigation, the

deliberations or questions of grand jurors and the like." In re Motions of Dow Jones & Co.,

142 F.3d 496, 499-500 (D.C. Cir. 1998). As this Court has noted, matters occurring before

the grand jury include "not only what has occurred and what is occurring, but also what is

likely to occur" before the grand jury. Id.

       Consistent with Fed. R. Crim. P. 6(e) and the interests that underlie grand jury secrecy,

this Court has recognized that there is no First Amendment right to access to grand jury

proceedings. E.g., In re Motions of Dow Jones & Co. 142 F.3d at 499.


                                               6

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II.    The Propriety of Unsealing the Redacted Pages

       The redacted pages of Judge Tatel's separate opinion contain a detailed analysis of

evidence collected by the grand jury with respect to the grand jury's need for the information

sought by the challenged subpoenas to reporters, the existence of alternative sources of that

information, and the public interest in enforcing the subpoenas. The redacted pages make

extensive reference to the identity of grand jury witnesses, the substance of their testimony,

and the strategy and direction of the investigation. Because the redacted pages are replete

with references to matters occurring before the grand jury, the redacted pages clearly are

covered by Fed. R. Crim. P. 6(e), as this Court previously determined.

       Movant Dow Jones does not contest this Court's determination that redaction of

portions of Judge Tatel's concurrence was necessary to protect grand jury secrecy at the time

the Court's decision was rendered. Rather, movant asserts that it is no longer necessary to

maintain the secrecy of all or part of the information discussed in the redacted portion of

Judge Tatel's separate opinion, because that information has become publicly known as a

result of the indictment of I. Lewis Libby, public statements concerning the indictment, and

certain reporters' reports of their own testimony before the grand jury. As discussed below,

after a careful review of the redacted pages and consideration of the principles underlying

Fed. R. Crim. P. 6(e), the Special Counsel has concluded that continued secrecy is not

necessary with respect to certain portions of the redacted pages that directly relate to Mr.

Libby, whose status as a subject of the grand jury investigation became publicly known


                                              7

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through the return of the indictment subsequent to the issuance of the Court's February 15,

2005 opinion, and that do not relate to other persons whose status as a witness or subject has

not been publicly disclosed. However, the Special Counsel has concluded that secrecy

continues to be necessary with respect to the remainder of the redacted pages, in order to

protect from public embarrassment or ridicule individuals whose status as grand jury

witnesses or subjects has not been publicly disclosed, as well as to protect the integrity of the

ongoing investigation. Together with this Response, the Special Counsel is submitting as

"Exhibit 1," ex parte and under seal pending the Court's resolution of the instant motion, a

copy of the redacted pages of Judge Tatel's concurrence, in which the Special Counsel has

redacted the portions which the Special Counsel believes must remain under seal. ^2 Also, for

the Court's convenience, the Special Counsel is submitting as "Exhibit 2," ex parte and

under seal, a complete copy of the redacted portion of Judge Tatel's separate opinion.

       Since the Court's opinion was issued on February 15, 2005, certain information

referred to in the redacted pages has become publicly known through the return of the

indictment against Mr. Libby. ^3 As a result of the indictment, Mr. Libby's status as a subject

and target of the investigation was revealed. Second, witnesses who gave testimony that

directly contradicted Mr. Libby's testimony were identified in the indictment. Third, the


       2
          Should this Court require a detailed description of the Special Counsel's analysis, it
will be provided in a sealed, ex parte affidavit.

       3
          The Special Counsel strongly disagrees that any comments made during the press
conference concerning the indictment provide an independent basis for unsealing all or part of
the redacted pages.

                                                 8

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substance of the witnesses' testimony described in the redacted pages was revealed as a result

of being quoted or summarized in the indictment, although the redacted pages do contain

very limited details that go beyond those included in the indictment. ^4 In addition, all but one

of the witnesses discussed in this portion of the redacted pages have publicly disclosed the

substance of their own testimony before the grand jury. Finally, the part of the investigation

that specifically focused on Mr. Libby's conduct has largely been concluded.

       As this Court has noted, while "[i]t is true that `Rule 6(e) does not create a type of

secrecy which is waived once public disclosure occurs,' . . . it is also true that `when

information is sufficiently widely known ... it has lost its character as Rule 6(e) material.'

." In re Motions of Dow Jones & Co., 142 F.3d at 505 (quotation marks and citations

omitted).   See also In re Sealed Case No. 99-3091, 192 F.3d 995, 1004 (D.C. Cir.

1999)(noting that where the general public has already become aware of matters occurring

before the grand jury, there is no additional harm in disclosure); In Re North, 16 F.3d 1234,

1245 (D.C. Cir.1994) (stating, "There must come a time . . . when information is sufficiently

widely known that it has lost its character as Rule 6(e) material. The purpose in Rule 6(e) is

to preserve secrecy. Information widely known is not secret."); In re Petition of Craig, 131

F.3d 99, 107 (2d Cir.1997) ("[T]he extent to which the grand jury material in a particular case

has been made public is clearly relevant because even partial previous disclosure often

undercuts many of the reasons for secrecy."). Thus, while public disclosure of certain grand


       4
          The additional details include quotations from testimony summarized in the indictment,
and the identities of certain persons who were identified in the indictment solely by job title.

                                               9

---

jury information does not automatically warrant disclosure of matters occurring before the

grand jury, such disclosure is relevant tot he question of whether continued secrecy is

necessary.

       Given that the information contained in the portion of the redacted pages that relates

directly to Mr. Libby (and not to the conduct of other persons) has become publicly known

through the indictment, and also through the public statements of grand jury witnesses, and

that the investigation concerning the conduct of Mr. Libby is largely concluded, the

principles underlying Rule 6(e) do not require maintaining this portion of the redacted pages

under seal. Under these circumstances, the need to encourage voluntary participation, and

full and frank testimony, of witnesses in the grand jury, or to protect witnesses from

retribution and inducements, in connection with this aspect of the investigation is minimized.

See In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C. Cir. 1998)(quoting Douglas

Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979)). Moreover, the release of these

portions of the redacted pages will not result in "persons who are accused but exonerated by

the grand jury [being] held up to public ridicule." Id. In the Special Counsel's view, the fact

that the redacted pages contain references to a limited number of discrete details that have

not been made public does not alter the analysis. Accordingly, the Special Counsel has no

objection to the release of the portions of the redacted pages that relate directly to Mr. Libby,

and not to others, which are identified in Exhibit 1.

       The remainder of the redacted pages discuss grand jury testimony related to persons


                                               10

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who have not been, and may never be, charged with a criminal offense, and persons who

have not been publicly identified as witnesses or subjects of the investigation. Continued

secrecy with respect to these portions of the redacted pages is vital "`to protect [an] innocent

accused who is exonerated from disclosure of the fact that he has been under investigation.'"

See In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001)(quoting United States v. Procter

& Gamble Co., 356 U.S. 677, 682 n. 6 (1958)(internal quotation marks omitted). Moreover,

because the investigation concerning these matters is ongoing, continued secrecy is needed

to assure that prospective witness will come forward voluntarily, and will testify fully and

frankly, and to prevent any efforts to obstruct the investigation. See Douglas Oil, 441 U.S.

at 219. While some of the testimony discussed in these portions of the redacted pages has

become publicly known as a result of public statements made by witnesses, this fact does not

reduce the need for continued secrecy. Even if a witness's public statements about his own

testimony standing alone were sufficient to justify the disclosure of such testimony in

connection with an ongoing grand jury investigation, in this case, the references to such

testimony contained in the redacted pages is so tightly interwoven with non-public grand jury

matters that it would be impossible to disclose such testimony without revealing other details

concerning the subjects and witnesses, as well as the strategy and direction, of the grand

jury's ongoing investigation. See In re Motions of Dow Jones & Co., 142 F.3d at 505 (citing

In Re North, 16 F.3d at 1242). Thus, it is necessary that the portions of the redacted pages

that do not refer specifically to the charged conduct of Mr. Libby, and do refer to individuals


                                              11

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who have not been charged with crimes, remain under seal, and the Special Counsel objects

to their release.

                                       CONCLUSION

       For all of the foregoing reasons, the Special Counsel respectfully requests that the

motion of Dow Jones & Company, Inc. be granted only with respect to those portions of the

redacted pages of Judge Tatel's separate opinion that specifically relate to the charged

conduct of I. Lewis Libby as identified in Exhibit 1 to this Response, and that the motion be

denied with respect to the remaining portions of the redacted pages.


                                                   Respectfully submitted,

                                                   PATRICK J. FITZGERALD


                                          By:      _________________________
                                                   PETER R. ZEIDENBERG
                                                   Deputy Special Counsel

PATRICK J. FITZGERALD
Special Counsel
JAMES P. FLEISSNER
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


                                             12

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In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138 (D.C. Cir. 2006)

                  United States Court of Appeals

              FOR THE DISTRICT OF COLUMBIA CIRCUIT



                     Decided February 3, 2006
 
                            No. 04-3138

           IN RE: GRAND JURY SUBPOENA, JUDITH MILLER


                         Consolidated with
                         04-3139, 04-3140


            Appeals from the United States District Court
                    for the District of Columbia
                          (No. 04mc00407)
                          (No. 04mc00460)
                          (No. 04mc00461)


    On Amicus Curiae Dow Jones & Co., Inc's Motion to Unseal
                              ______

        Theodore J. Boutrous, Jr. and Thomas H. Dupree, Jr. were
    on the motion to unseal and the reply to the government's
    response.

        Peter R. Zeidenberg and James P. Fleissner, Deputy
    Special Counsels, U.S. Department of Justice, were on the
    responses to the motion to unseal.

        Before:   SENTELLE, HENDERSON, and TATEL, Circuit
    Judges.

---

                                   2

        Opinion for the Court filed PER CURIAM.

         PER CURIAM: Guided by Special Counsel Patrick J.
    Fitzgerald, a federal grand jury investigating the public exposure
    of a covert CIA agent's identity subpoenaed two reporters,
    Judith Miller of the New York Times and Matthew Cooper of
    Time magazine, to give evidence relating to their confidential
    sources. After being held in civil contempt for refusing to
    comply with the subpoenas, the reporters appealed to this court.
    Affirming, we held that neither the First Amendment nor any
    applicable common-law privilege excused the reporters from
    their obligation as citizens to give the grand jury evidence
    relating to possible criminal activity. In re Grand Jury
    Subpoena, Judith Miller, 397 F.3d 964, 968-73 (D.C. Cir. 2005).

         As we explained in our per curiam opinion, however, "the
    Court is not of one mind on the existence of a common law
    privilege." Id. at 973. Specifically:

        Judge Sentelle would hold that there is no such common
        law privilege for reasons set forth in a separate opinion.
        Judge Tatel would hold that there is such a common law
        privilege. Judge Henderson believes that we need not,
        and therefore should not, reach that question.

    Id. Nevertheless, we agreed that, "for the reasons set forth in the
    separate opinion of Judge Tatel, . . . if such a privilege applies
    here, it has been overcome." Id.

         Relying on ex parte submissions from the special counsel,
    Judge Tatel's opinion explained that the reporters' testimony
    was critical to the investigation, that the grand jury had
    exhausted alternative non-reporter sources, and that the public
    interest favored compelling disclosure. Id. at 1001-03. Eight
    pages of Judge Tatel's opinion were redacted to preserve grand

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    jury secrecy and to protect classified information. See id. at
    1002.

         Now that the grand jury has returned an indictment against
    I. Lewis Libby for perjury, obstruction of justice, and making
    false statements to federal investigators, amicus curiae Dow
    Jones & Company moves to unseal the eight pages--or, failing
    that, portions thereof relating to matters that are now public. See
    D.C. Cir. R. 47.1(c). Although objecting to unsealing the
    opinion in its entirety, the special counsel informs us that
    nothing in the concurring opinion remains classified and agrees
    that portions of the redacted opinion may be made public
    without jeopardizing grand jury secrecy. We also asked the
    special counsel to tell us whether portions of the two affidavits
    he initially submitted to this court explaining the need for the
    reporters' cooperation may also be released to the public. In
    response, he filed an affidavit expressing his view that,
    consistent with the need for grand jury secrecy, portions of one
    of the two affidavits may be unsealed.

         Reflecting our criminal justice system's longstanding
    commitment to grand jury secrecy, Douglas Oil Co. v. Petrol
    Stops Nw., 441 U.S. 211, 218 n.9 (1979) ("Since the 17th
    century, grand jury proceedings have been closed to the public,
    and records of such proceedings have been kept from the public
    eye."), Rule 6(e) of the Federal Rules of Criminal Procedure
    prohibits the disclosure of "matter[s] occurring before the grand
    jury," Fed. R. Crim. P. 6(e)(2), and requires that "[r]ecords,
    orders, and subpoenas relating to grand-jury proceedings must
    be kept under seal to the extent and as long as necessary to
    prevent the unauthorized disclosure of a matter occurring before
    a grand jury," id. R. 6(e)(6). The Supreme Court has advanced
    several practical justifications for grand jury secrecy:

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                                   4

       First, if preindictment proceedings were made public,
       many prospective witnesses would be hesitant to come
       forward voluntarily, knowing that those against whom
       they testify would be aware of that testimony.
       Moreover, witnesses who appeared before the grand jury
       would be less likely to testify fully and frankly, as they
       would be open to retribution as well as to inducements.
       There also would be the risk that those about to be
       indicted would flee, or would try to influence individual
       grand jurors to vote against indictment. Finally, by
       preserving the secrecy of the proceedings, we assure that
       persons who are accused but exonerated by the grand
       jury will not be held up to public ridicule.

    Douglas Oil, 441 U.S. at 219. Consistent with these purposes,
    we have recognized that grand jury secrecy covers "the
    identities of witnesses or jurors, the substance of testimony as
    well as actual transcripts, the strategy or direction of the
    investigation, the deliberations or questions of jurors, and the
    like." In re Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C.
    Cir. 1998) (internal quotation marks omitted).

         Grand jury secrecy is not unyielding, however. Judicial
    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." Fed. R. Crim. P. 6(e)(6) (emphasis added); cf. Dow
    Jones, 142 F.3d at 502 (explaining that identical language in
    Rule 6(e)(5) requires courts to open judicial hearings ancillary
    to grand jury affairs to the public whenever consistent with
    grand jury secrecy). Our case law, moreover, reflects the
    common-sense proposition that secrecy is no longer "necessary"
    when the contents of grand jury matters have become public.
    For example, in the wake of Iran-Contra we ordered the release
    of the independent counsel's report detailing the outcome of his

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                                   5

    investigation, notwithstanding the fact that the report was
    primarily based on grand jury testimony. In re North, 16 F.3d
    1234 (D.C. Cir. 1994). We reasoned that "[t]here must come a
    time . . . when information is sufficiently widely known that it
    has lost its character as Rule 6(e) material. The purpose in Rule
    6(e) is to preserve secrecy. Information widely known is not
    secret." Id. at 1245. During the grand jury's investigation into
    the Monica Lewinsky matter, we similarly held that staffers at
    the Office of the Independent Counsel could not have violated
    Rule 6(e) when they told the New York Times they believed
    then-President Clinton should be indicted for perjury and
    obstruction of justice. In re Sealed Case, 192 F.3d 995, 1001-05
    (D.C. Cir. 1999). Although we recognized that revealing a
    witness's identity and naming the target of a grand jury's
    investigation would ordinarily constitute Rule 6(e) violations, id.
    at 1004, we found that the staffers "did not reveal any secret, for
    it was already common knowledge" both that President Clinton
    had testified and that the grand jury was investigating possible
    perjury and obstruction charges against him, id. at 1004-05.

          For similar reasons, we are satisfied here that there is no
    longer any need to keep significant portions of the eight pages
    under seal. 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. Because discrete portions of the eight pages can
    be redacted without doing violence to their meaning, today we
    unseal those portions containing grand jury matters that the
    special counsel confirmed in the indictment or that have been
    widely reported. (The formerly redacted materials appear in
    italics on pages 30-39.) On our own initiative, moreover, we
    also unseal parts of one of the special counsel's affidavits upon
    which we relied in concluding that Miller's evidence was critical
    to the grand jury investigation. If the public is to see our
    reasoning, it should also see what informed that reasoning.

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                                   6

         But just as some parts of the record may now be made
    public, others must remain secret. After reviewing the special
    counsel's submissions, we agree that some information in the
    eight pages and in the special counsel's affidavits
    unquestionably remains grand jury material that Rule 6(e)
    obligates us to maintain under seal. Its 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. That the
    special counsel's investigation is ongoing only heightens the
    need for maintaining grand jury secrecy, for the special counsel
    is entitled to conduct his investigation out of the public eye and
    with the full cooperation of witnesses who have no fear their
    role in the investigation will lightly be disclosed.

         It is therefore ORDERED and ADJUDGED that, pursuant
    to Circuit Rule 47.1(c), Dow Jones's motion is granted in part
    and denied in part, and that the redacted opinion and ex parte
    affidavit shall be placed in the public docket. This order is
    without prejudice to Dow Jones's right to move to unseal
    additional materials at a later date.

                                                         So ordered.