No Easy Answers


Wednesday, December 20, 2006

Possibility of VP Cheney Appearance as a Defense Witness

On December 19, 2006, the Court held a Motions Hearing relating to several motions in limine. Out of that hearing, the solitary piece of emergent news was a report that Vice President Cheney would be called to testify. Of particular interest to those who follow the case is that the Vice President would be called by the defense (that is, by Libby), and not by the prosecution.

Of four motions in limine, the only one that refers to or has any relationship to actions or knowledge of Vice President Cheney is Libby's motion regarding disclosure of the contents of a National Intelligence Estimate.

Libby's counsel's two other motions in limine relate to: CIA damage assessment / Mrs. Wilson's "employment status" (code phrase to represent "classified") in the CIA; and the fact that some reporters resisted providing testimony to the grand jury, specifically including Judith Miller's resistance to the point of being incarcerated for 85 days.

Given that the Motion involves approval for disclosure of the NIE, my sense is that Libby intends to use the appearance of Vice President Cheney as somewhat of a character witness, to establish that Libby is not casual in handling of classified information. But I think the NIE is a window to obtain the Vice President's testimony on the broader question, "what did you authorize to be disclosed?".

The defense may ask the Vice President if he had authorized or suggested that Libby disclose "Wilson's wife works at the CIA, and she was involved in sending him on a junket to Africa." The absence of a specific "disclose Mrs. Wilson" instruction from the Vice President is useful to plant reasonable doubt that Libby had any concern about or awareness of Mrs. Wilson's role.

In that broader line of inquiry, the prosecution has a July 6, 2003 Op-ed by Wilson, marked up by Vice President Cheney. From Fitzgerald's May 12 Response to the Court's Inquiry Regarding News Articles [Doc 105]:

The [July 6 Wilson] article, and the fact that it contained certain criticisms of the administration, including criticisms regarding issues dealt with by the Office of the Vice President ("OVP"), serve both to explain the context of, and provide a motive for, many of the defendant's statements and actions at issue in this case. ...

Those annotations support the proposition that publication of the Wilson Op Ed acutely focused the attention of the Vice President and the defendant -- his chief of staff -- on Mr. Wilson, on the assertions made in his article, and on responding to those assertions. The annotated version of the article reflects the contemporaneous reaction of the Vice President to Mr. Wilson's Op Ed article, and thus is relevant to establishing some of the facts that were viewed as important by the defendant's immediate superior, including whether Mr. Wilson's wife had "sen[t] him on a junket."

Motions in limine re: NIE Disclosure


---===---


Case 1:05-cr-00394-RBW Document 165-1 Filed 10/30/2006 Page 1 of 3

I. LEWIS LIBBY'S MOTION IN LIMINE TO PRECLUDE THE
GOVERNMENT FROM OFFERING ANY EVIDENCE OR ARGUMENT
THAT HIS DISCLOSURE OF INFORMATION FROM THE OCTOBER 2002
NATIONAL INTELLIGENCE ESTIMATE WAS ILLEGAL OR IMPROPER

I. Lewis Libby, through his counsel, hereby moves in limine to preclude the government from offering any evidence or argument that his discussions with Judith Miller or any other reporter about information contained in the October 2002 National Intelligence Estimate (the "NIE") was in any way illegal or improper.

Any such offer is clearly foreclosed by this Court's prior ruling that "the legality of the defendant's disclosure of the NIE will not be an issue in this case," and its consequent decision to deny Mr. Libby discovery related to this issue Order at 7 (June 2, 2006)(Dkt. 112)("June 2 Order"). Further, there is no support for eh notion that Mr. Libby's actions with respect to the NIE contravened any law or policy. In fact, the opposite is true.

MEMORANDUM OF LAW

In the summer of 2003, Mr. Libby discussed certain contents of the NIE with some reporters, including Judith Miller, then of the New York Times. Mr. Libby was informed by the Vice President that the President had authorized disclosure of information contained in the NIE in order to respond to allegations that he had ignored intelligence information in making a statement in the January 2003 State of the Union address.

The government never suggested -- nor could it -- that the President lacks the power to authorize the disclosure of previously classified information as he sees fit. The government also has never stated that Mr. Libby was not aware of that authority at the relevant time. To the contrary, the government has made clear -- in representations to this Court -- that it would not attempt to prove at trial that "there was anything illegal about [Mr. Libby] giving over material in the NIE, that was declassified by direction of a superior." Tr. of Mot. Hearing at 65 (May 5, 2006)(Dkt. 106), see id. ("We are not alleging to the jury that Mr. Libby is guilty of disclosing classified information [or] committed a crime that they should vote on by discussing the NIE"); id. ("We're not alleging that he committed a crime when he talked to Ms. Miller about the NIE on July 8.").

Given the government's prior representations, and absent any support for the notion that Mr. Libby's conduct with respect to the NIE was in any way unlawful or improper, the government cannot be permitted to suggest otherwise at trial.

The Court has already confirmed the irrelevance of this issue. In its June 2 Order, it held that "the legality of the defendant's disclosure of the NIE will not be at issue in this case," and that therefore, "documents relating to [the NIE] and its declassification need not be produced." June 2 Order at 7; see id. at 7 n.6 (offering to instruct the jury on this point). Mr. Libby had moved for the production of certain documents that would confirm the propriety of his actions with respect to the NIE. See Third Motion of I. Lewis Libby to Compel Discovery Under Rule 16 and Brady at 14 (March 17, 2006)(Dkt. 68)(requesting all documents related to the declassification of the NIE or reflecting public comments by government officials about the NIE). Having denied Mr. Libby that discovery, the Court should now make clear that the government must now stand by its word, an that it will not be permitted to offer evidence or to

-2-

suggest that Mr. Libby's conversations with Ms. Miller and others regarding the NIE was in any way unlawful of improper. See United States v. Lewis, 511 F.2d 798, 800-803 (D.C.Cir. 1975) (Where the prosecution states that it did not intend to use any statements made by the defendant at the time of arrest, it may not be permitted to refer to those statements at trial).

CONCLUSION

For the foregoing reasons, Mr. Libby respectfully requests that the Court grant the relief requested in the proposed order attached hereto.

-3-


Case 1:05-cr-00394-RBW Document 165 Filed 10/30/2006 Page 1 of 2

PROPOSED ORDER Upon consideration of Mr. Libby's Motion In Limine To Preclude The Government From Offering Any Evidence Or Argument That His Disclosure Of Information From The October 2002 National Intelligence Estimate Was Illegal Or Improper, it is hereby

ORDERED that this motion is GRANTED, and it is further

ORDERED that the government cannot offer at trial any evidence or argument that Mr. Libby's discussions with Judith Miller or any other reporter about information contained in the October 2002 National Intelligence Estimate was in any way illegal or improper.


---===---


     Case 1:05-cr-00394-RBW           Document 185         Filed 11/15/2006       Page 1 of 8



                           THE UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                      )
                                              )       CR. NO. 05-394 (RBW)
               v.                             )
                                              )
I. LEWIS LIBBY,                               )
      also known as Scooter Libby             )

              GOVERNMENT'S RESPONSE TO DEFENDANT'S
         MOTION TO PRECLUDE EVIDENCE OR ARGUMENT THAT HIS
     DISCLOSURE OF THE OCTOBER 2002 NIE WAS ILLEGAL OR IMPROPER

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

Counsel, respectfully submits this Response to Defendant's Motion to Preclude Evidence or

Argument That His Disclosure of the October 2002 National Intelligence Estimate (NIE) Was Illegal

or Improper.

       As discussed below, the government has no intention, and has never expressed an intention,

of arguing that defendant's disclosure of the previously-classified October 2002 NIE was illegal or

improper. What the government does intend to establish is that the circumstances surrounding the

disclosure ­ including the fact that the information disclosed was specially de-classified by the

President, through the Vice President, and the fact that the Vice President specifically authorized

disclosure of the information to a reporter ­ made the conversation in which the disclosure was made

unique and memorable to defendant. That conversation was a meeting with New York Times

reporter Judith Miller at St. Regis Hotel on July 8, 2003, in which defendant and Ms. Miller also

discussed the fact that Valerie Wilson worked at the CIA as part of his response to criticisms of the

White House's assertions regarding purported Iraqi efforts to acquire uranium from Niger. Thus,



     Case 1:05-cr-00394-RBW            Document 185         Filed 11/15/2006       Page 2 of 8



rather than "fleeting" and "inconsequential," ^1 the conversation between defendant and Miller was

unique and memorable ­ but not illegal.

       However, as discussed below, the government's agreement not to argue that defendant's

disclosure of the NIE was illegal should not be understood as an agreement to remain mute if the

defense seeks to affirmatively represent as fact to the jury statements that may not be true or

accurate.

I.     Background

       As defendant acknowledges in his motion, Def. Mot. at 1, defendant disclosed to reporters

certain portions of an October 2002 NIE that set forth the intelligence community's assessment of

Iraq's potential possession of weapons of mass destruction. One of those disclosures occurred on

July 8, 2003, when defendant met with Ms. Miller. In that meeting with Ms. Miller, defendant

discussed, among other things, Mr. Wilson's Op-Ed, Mr. Wilson's trip to Niger, portions of the

October 2002 NIE ­ and the CIA employment of Ms. Wilson. When the topic of the meeting

specifically turned to Mr. Wilson, defendant asked that Ms. Miller characterize defendant, for

purposes of attribution, as a "former Hill staffer" rather than as an administration official.

       Defendant described to the grand jury that he was authorized by the Vice President to

disclose the October 2002 NIE to the press some time before the July 8th meeting with Ms. Miller.

When the Vice President initially directed defendant to disclose the NIE's contents to the press,

defendant expressed concern regarding disclosure of the NIE because it was classified. The Vice


       1
       See Def. Resp. to Govt. Motion in Limine at 4 (contending that defendant "had fleeting,
inconsequential conversations with reporters regarding Ms. Wilson") (Docket No. 179).

                                                  2



      Case 1:05-cr-00394-RBW            Document 185        Filed 11/15/2006       Page 3 of 8



President advised that he would obtain authority to disclose from the President. Later, the Vice

President informed defendant that the President had authorized disclosure of the NIE.

          After speaking with the Vice President, defendant asked David Addington, then-Counsel to

the Vice President, whether the President had the authority to de-classify classified information. Mr.

Addington confirmed that the President had such authority, a proposition that the government does

not dispute.

II.       Analysis

          The government has never charged, argued, nor intended to argue that the disclosure of the

information contained in the NIE by defendant to reporters was illegal. Nor have we argued or

intended to argue that such disclosure was otherwise wrongful. Indeed, the government has never

disputed, nor intended to dispute, that Executive Order 12958 allows the President to declassify

information for public dissemination. See also Department of Navy v. Egan, 484 U.S. 518, 527

(1988).

          Rather, the government will argue that the circumstances surrounding defendant's disclosure

of the 2002 NIE tend to show, see Fed. R. Evid. 401, that responding to Mr. Wilson's allegations and

the criticism of the White House's statements about Iraq and uranium was a sufficiently high priority

in defendant's mind to warrant declassification and dissemination of classified information to rebut

that criticism, and that these events were sufficiently distinct to be memorable. As this Court is well

aware, defendant's primary defense is that he was so preoccupied with other matters that he

misremembered how he learned of Ms. Wilson's CIA employment (to the point of creating a

conversation that did not occur) and misremembered to whom he disclosed that information. This

evidence shows that the conversations between defendant and Ms. Miller were important and


                                                   3



       Case 1:05-cr-00394-RBW          Document 185         Filed 11/15/2006       Page 4 of 8



memorable, and not so drowned out by the other matters that he misremembered how he learned of

Ms. Wilson's employment and to whom he disclosed that information.

III.    Timing of the De-Classification

        The timing of the de-classification relative to defendant's disclosure of the NIE to reporters

is unclear. Initially, defendant testified in the grand jury that he was authorized to disclose the

information to Ms. Miller shortly before their July 8, 2003 meeting. Defendant's discussion with

Mr. Addington concerning presidential authority to de-classify occurred sometime after July 6, 2003,

according to Mr. Addington. However, the defendant also disclosed the NIE to Washington Post

associate editor Bob Woodward on June 27, 2003, and to New York Times reporter David Sanger

on July 2, 2003. In both conversations, defendant disclosed information from the NIE ­ specifically,

the NIE's conclusion that Iraq was vigorously trying to procure uranium ­ which was substantially

less information than disclosed to Ms. Miller on July 8. Defendant later testified in the grand jury

that he was unsure whether, by the time of the July 2 conversation with Mr. Sanger, defendant had

(a) received authorization from the Vice President to disclose the NIE; (b) relied on publicly-made

statements by the then-National Security Advisor; or (c) just "slipped." ^2 Defendant testified that he

recalled a "go-stop-go" sequence in discussions concerning authorization to disclose the NIE, that

is, he was authorized to disclose, then he was instructed to hold off, and then later told again to

disclose.

        Thus, there is ambiguity concerning when the de-classification of the NIE actually occurred.

At the May 5, 2006 motions hearing before this Court, the government agreed that it would not make


        2
         Defendant was not asked in the grand jury about the disclosure to Bob Woodward because
that information arose after defendant's grand jury appearances.

                                                  4



     Case 1:05-cr-00394-RBW             Document 185         Filed 11/15/2006       Page 5 of 8



an issue of the fact that any disclosure prior to the authorization violated the law, but noted that as

a result of the ambiguity regarding timing, the government could not be forced to stipulate that

defendant was authorized as of particular dates in June or early July. 5/5/06 Tr. at 68 ("I don't know

what happened before so I am not going to stipulate that he was authorized on June 23 or July 2.").

Government counsel also expressed concern that defendant not be allowed to make, unrebutted, an

affirmative argument that defendant never disclosed classified information without authorization,

and the Court recognized that the door to contrary evidence could be opened depending on the

defense argument. ^3 5/5/06 Tr. at 73-74. Nevertheless, the government will not argue that the

defendant's disclosures of the 2002 NIE were illegal or improper.

       The government does not know what position the defense will advance at trial as to the

timing of the relevant discussions authorizing the NIE's disclosure, and the timing issue may be

important because defendant did ask the Counsel to the Vice President, some time after July 6,

questions about what paperwork would be involved when the spouse of a CIA employee traveled

abroad (a reference to Ms. Wilson and to Mr. Wilson's trip to Niger), together with a question about

the President's de-classification authority. Any questions about when the authorization was given

in relation to the various discussions with journalists Woodward, Sanger, and Miller would be


        3
        Defendant complains in his motion that this Court denied his discovery request for
documents relating to the de-classification, Def. Mot. at 2, but he had already received all such
documents in the government's possession (e.g., defendant's own notes), see 5/5/06 Tr. at 63-64, 68
("There's no other discovery we have on it [the de-classification] so it's not like we're sitting on
documents or exhibits"). In order to allow defendant to assess the risks of arguing that he had clear
authority to disclose, the Court directed that the government disclose to the defense all the
information in its possession concerning the timing of the de-classification and the relevant
conversations, see 5/5/06 Tr. at 71. Consistent with this Court's oral ruling, id. at 71, the government
provided, on September 7, 2006, a letter to defense counsel setting forth the information from the
witnesses's interviews concerning the de-classification.

                                                   5



     Case 1:05-cr-00394-RBW           Document 185        Filed 11/15/2006       Page 6 of 8



pertinent to establishing when conversations regarding Ms. Wilson occurred. However, if any

evidence is adduced at trial concerning the possibility that defendant engaged in a limited but

premature disclosure of the NIE, the government will refrain from arguing that defendant's conduct

was illegal, and will consent to an appropriate instruction. But what defendant cannot do is to take

the government's agreement not to make an issue of the possible premature disclosure of the NIE

and use that agreement to insulate from all challenge the potential defense argument that defendant

was clearly authorized to disclose the NIE each time defendant did so ­ the facts simply do not bear

that out. After all, defendant himself has already indicated, in his grand jury testimony, that he

thought the de-classification might have happened later. We should not be foreclosed from asking

questions if he or his counsel change his account. Yet Mr. Wells indicated at the May 5, 2006

hearing that "when [defendant] talked to Mr. Woodward [on June 27] he did it with the

understanding that he had been authorized." 5/5/06 Tr. at 73. The government should not be

muzzled from raising any questions about the de-classification's timing. ^4 We will not, however,

argue from the inconsistency that defendant committed a crime when he discussed the NIE. At


       4
         The government has consistently stated that the government would not make the de-
classification an issue, so long as defendant does not make it an issue or open the door. 5/5/06 Tr.
at 68-69, 74. Putting the same point another way, the government's consistent concern has been that
the defense will take the government's agreement not to argue a certain factual issue as an open
invitation for the defense to argue for the very different proposition that the government has
conceded the fact and will not attempt to rebut the issue raised by the defense. 5/5/06 Tr. at 74
(government express concern that "I say, well, we're not going there [the de-classification timing]
and then people stand up and say the government agrees X, Y, and Z, and start tying our hands.").
For example, the defense claims the ability to make "strong representations to the jury that he was
authorized by the Vice President with the understanding that the President also had declassified the
document," 5/5/06 Tr. at 65-66, and yet presumably would prevent the government from arguing that
the timing was not clear, even after the defense ­ not the government ­ injects what would otherwise
be a dormant issue.

                                                 6



     Case 1:05-cr-00394-RBW           Document 185         Filed 11/15/2006      Page 7 of 8



bottom, the government simply wishes to make clear that it cannot affirmatively agree that each time

defendant disclosed the NIE, he was authorized to do so.

                                         CONCLUSION

       For the reasons discussed above, the government respectfully requests that this Court deny

defendant's motion as moot.


---===---


Case 1:05-cr-00394-RBW Document 199 Filed 11/17/2006 Page 1 of 2

REPLY OF I. LEWIS LIBBY IN SUPPORT OF HIS MOTION IN LIMINE TO
PRECLUDE THE GOVERNMENT FROM OFFERING ANY EVIDENCE OR
ARGUMENT THAT HIS DISCLOSURE OF INFORMATION FROM THE OCTOBER
2002 NATIONAL INTELLIGENCE ESTIMATE WAS ILLEGAL OR IMPROPER

The government's response makes clear that it "has no intention, and has never expressed an intention, or arguing that [Mr. Libby's] disclosure of previously-classified October 2002 NIE was illegal or improper." Government's Response at 1 (Nov 15, 2006)(Dkt. 185). The government's response further provides that, "if any evidence is adduced at trial concerning the possibility that [Mr. Libby] engaged in a limited but premature disclosure of the NIE," it will "refrain from arguing that [Mr. Libby's] conduct was illegal, and will consent to an appropriate instruction." Id. at 6 (emphasis added).

In light of the government's response, Mr. Libby's motion should be granted. In addition, consistent with the government's response, if there is any suggestion at trial that Mr. Libby's discussions of the NIE with reporters were in any way improper, the defense respectfully requests that at that time the Court provide the jury with the following curative instruction:

You have heard [testimony/evidence] that Mr. Libby discussed with reporters information from the October 2002 National Intelligence Estimate. None of this [testimony/evidence] is being offered to show, or should be taken as establishing, that Mr. Libby's discussions of the NIE were improper or illegal. The government is not alleging that Mr. Libby's discussions with reporters were in any way wrongful, and you should not consider that issue in your deliberations.
For these reasons, and those set forth in his opening memorandum, Mr. Libby's Motion in limine to Preclude the Government from Offering any Evidence or Argument that his Disclosure of Information From the October 2002 National Intelligence Estimate was Illegal or Improper should be granted.

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