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Tuesday, December 12, 2006

Pretrial Issues in US v. Libby

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Index to Liveblog Trial Summaries
Juror Questions / Witness Answers
Index to Trial Exhibits: Assoc. Press - Wash. Post

Outline list of Grounds for Appeal

Dec 10, 2007: Libby drops appeal
No further briefing.

On joint Motion filed 9/28, granted 10/3 ...

Oct 12, 2007 Dec 11, 2007: Appellant's brief/appendix due
Nov 13, 2007 Feb 11, 2008: Appellee's brief due
Nov 27, 2007 Mar 03, 2008: Appellant's reply brief due

Aug 17: Amicus Brief by Landmark Legal on issue of Defective Appointment
New material on July 16, Hat tip to Marcy Wheeler at TheNextHurrah, with commentary at What Fitzgerald Didn't Know Yet. Links below to newly unrdeacted affidavits by Patrick Fitzgerald. Thousands of words newly unredacted.


Press Briefing by Dana Perino - March 6, 2007
Vice President's Statement on Libby Verdict - March 6, 2007
Press Briefing by Tony Snow - March 7, 2007


Post-Sentencing Filings

June 19: Libby Notice of Appeal [Doc 370]
June 19: Libby Appeal of Order Denying Bail Pending Appeal - CADC Case No. 07-3068 [1048038-1 (text) (3.3 Mb pdf)]
June 20: Circuit Court ORDER: Response due by June 22, Reply (if any) by June 26, Motion for leave to file amicus brief is denied [1048387 (25 kb pdf)]
June 21: Judge Walton Opinion re: Denial of Bail Pending Appeal [Doc 373 (1.6 Mb pdf)]
June 22: Fitzgerald Response to Libby Motion [1048911-1 (880 kb pdf)]
June 26: Libby Reply [(480 kb pdf)]
July 2: Circuit Court DENIES Application to remain free on bail pending appeal [(30 kb pdf)]
July 2: President Bush Commutes Sentence - removing prison term [Grant of Executive Clemency]
July 3: District Court orders briefing on effect of commutation of prison sentence on supervised release [Doc 383 (80 kb pdf)]
July 9: White House Position Statement [Doc 386 (85 kb pdf)]
July 9: Government Position Statement re: Supervised Release [Doc 387 (80 kb pdf)]
July 9: Libby Position Statement [Doc 388 (65 kb pdf)]
July 12: Court rules supervised release remains in effect [Doc 390 (560 kb pdf - alt pdf)]


Case 1:05-cr-00394-RBW     Document 344     Filed 05/17/2007     Page 1 of 1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ORDER

    As a result of the Notice issued in this case on May 11, 2007, regarding the Court's receipt of letters concerning the defendant's sentencing in this case and providing the parties an opportunity to review the letters, a media representative has contacted Chambers and requested that the letters be made available to the press. The Court would like to hear the parties' views on disclosure of the letters to the media as well as the media's position on its entitlement to the letters. 1 It is hereby

    ORDERED that the parties, to the extent that they have a position, and the media file with this Court, no later than May 25, 2007, their legal views on disclosure of the letters to the media.

    so ORDERED this 17th day of May, 2007.

--
1The Court notes its particular concern regarding disclosing to the media of the names and personal information of the authors of the letters.



Case 1:05-cr-00394-RBW     Document 342     Filed 05/15/2007     Page 1 of 2

NOTICE OF FILING OF DECLASSIFIED PLEADINGS

    Pursuant to the Court's orders of November 15, 2006, January 17, 2007, March 1, 2007, and April 18, 2007, the government has filed with the clerk's office redacted, declassified versions of previously filed pleadings in this matter. The relevant agencies have determined that the unredacted material is not classified or has been declassified. We have been informed that the declassified pleadings are available for viewing in the clerk's office Monday through Friday between 9 a.m. and 4 p.m. Dated: May 15, 2007



Case 1:05-cr-00394-RBW     Document 335     Filed 04/13/2007     Page 1 of 2

NOTICE BY I. LEWIS LIBBY

    Mr. Libby respectfully submits this notice to inform the Court that he does not intend to file a motion before the District Court for a new trial pursuant to Federal Rule of Criminal Procedure 33.

    On March 6, 2007, defense counsel requested additional time to file a new trial motion under Rule 33. The Court granted the request and ordered that such a motion be filed by April 13, 2007.

    Mr. Libby intends to raise in the Court of Appeals substantial issues of law on appeal of his conviction, including issues that may result in the granting of a new trial. However, defense counsel's review of the record leads us to conclude that the issues were adequately presented to the District Court during the course of the proceedings and that the Court ruled on them during or before trial. Counsel also conclude that the record does not need to be supplemented on these issues. Accordingly, we will not reargue them in a motion under Rule 33.

Dated: April 13, 2007


The Dow Jones Motion to Unseal


Jan 15: My Libby trial predictions
Jan 22: A political affair, Scooter Libby - Scamming the Sham
Feb 20: My 15 minutes of fame, "cboldt" On The Closing Arguments
Feb 22: On Plame's status, Covert or Not in Purple Blogistan
Jul 13: On the Commutation, Rivkin Statement to House Judiciary Committee
Apr 7, '06: A political flareup, Libby and the Senate


Not authoritative, contains errors of statement and conclusion, may or may not be maintained, caveat emptor, etc.

Unlinked documents are either "classified" (and noted as such) or are scanned PDF files. Other than the "classified" material, all of the filings are publicly available. Links for some of the publicly available filings exist at sites such as:


Libby Case - Pleadings Tracker

Case No. 1:05-cr-00394-RBW

  1. Post-verdict Activity
    • Motion for retrial
      • April 13 Libby Notice - There will be no Motion for Retrial [Doc 335]
    • Sentencing
      • May 15 Pre-Sentence Investigation (PSI) Report due
      • May 25 Disputes to PSI due
      • May 25 Government Sentencing Recommentation [Doc 346 (110 kB pdf - Alt pdf source)]
      • May 25 Libby Argument Against Release of Testimonial Letters [Doc 348]
      • May 25 Government Sentencing Calculation Memorandum [Doc 351 (1.9 Mb pdf - Alt pdf source)]
      • May 25 Attachments to Sentencing Calculation [Doc 351-1 (2.7 Mb pdf - Alt pdf source)]
      • May 30 Court Order for May 30 filing deadline for Media Access to Testimonial Letters [Doc 353]
      • May 30 Court Order for May 31 filing deadline for Libby Response to Government Sentencing Memorandum [Doc 354]
      • May 30 Libby Response re: Media Access to Testimonial Letters [Doc 355]
      • May 31 Court Order re: Media Access to Testimonial Letters [Doc 356]
      • May 31 Libby Opposition to Sentencing Memorandum [Doc 357]
      • May 31 Libby Memorandum to aid Sentencing [Doc 358]
      • June 5 Testimonial Letters [Doc 359 (18 Mb pdf)]
      • June 5 Sentencing - 30 Months; $250,000 fine; 2 years supervised release; 400 hours of community service
    • Bail pending appeal
      • June 7 Libby memo on bail pending appeal [Doc 362 (900 kb pdf)]
      • June 7 Amicus brief supporting bail pending appeal [Doc 363 (40 kb pdf)(convertable to text)]
      • June 12 Government response re: bail pending appeal [Doc 365 (230 kb pdf)]
      • June 13 Libby reply re: bail pending appeal [Doc 368 (940 kb pdf)]
      • June 14 Court DENIES Motion for Bail Pending Appeal [Minute Entry]
      • June 19 Libby Notice of Appeal [Doc 370 (1 page)]
      • June 21 Court Opinion re: Denial of Bail Pending Appeal [Doc 373 (1.6 Mb pdf)]
    • Appeal of Denial of Bail Pending Appeal [CADC Case No. 07-3068]
      • June 19 Libby Appeal of Order Denying Bail Pending Appeal [1048062-1 (text)(3.3 Mb pdf)]
      • June 19 Motion for leave to file amicus brief [1048066-1]
      • June 20 Circuit Court ORDER: Response due by 4 p.m. June 22, Reply (if any) by noon June 26, Motion for leave to file amicus brief is denied [1048387 (25 kb pdf)]
      • June 22 Prosecution Response [1048062-1 (880 kb pdf)]
      • June 26 Libby Reply [(480 kb pdf)]
      • July 2 Circuit Court DENIES Application to remain free on bail pending appeal [(30 kb pdf)]
      • July 2 President Bush Commutes Prison Sentence (mooting the issue of bail pending appeal) [Grant of Executive Clemency - Statement by the President]
    • Appeal of Conviction on the Merits [CADC Case No. 07-3068]
    • Trial Court Action on Remand
    • July 2 President Bush Commutes Prison Sentence [Grant of Executive Clemency - Statement by the President]
    • July 3 District Court orders briefing on effect of commutation of prison sentence on supervised release [Doc 383 (80 kb pdf)]
    • July 9 White House Position Statement [Doc 386 (85 kb pdf - alt pdf)]
    • July 9 Government Position Statement re: Supervised Release [Doc 387 (80 kb pdf - alt pdf)]
    • July 9 Libby Position Statement [Doc 388 (65 kb pdf)]
    • July 12 Court rules supervised release remains in effect [Doc 390 (560 kb pdf - alt pdf)]
  2. Jury Deliberation Activity
    • February 21 Jury Note requesting flip chart, masking tape, post-it-notes [Doc 301 (45 kB pdf)]
    • February 22 Jury Note requesting witness photos [Doc 302 (55 kB pdf)]
    • February 27 Jury Notes re: Interpretation of Count Three [Doc 304 (85 kB pdf) and Doc 305 (50 kB pdf)]
    • February 28 Jury Note requesting easel pad [Doc 306]
    • March 01 Jury Note requesting 2 p.m. dismissal on Friday [Doc 308 (60 kB pdf)]
    • March 02 Jury notes re: reasonable doubt and scope of evidence to consider for the obstruction count [Doc 311 (135 kB pdf)]
    • March 05 Court Reply to Jury Questions on Reasonable Doubt/Cooper [Doc 313 (80 kB pdf)]
    • March 05 Jury Notes re: Parsing Count 3, use of GJ testimony as aid to Count 3 [Doc 314]
    • March 06 Jury Note: We have reached a verdict (11:15am) [Doc 316]
    • March 06 Jury Renders Guilty verdict on Counts 1, 2, 4 and 5; Not-guilty on Count 3 [Doc 317]

  3. Rulings on Proposed voir dire and Jury Instructions
    • November 13 Libby proposed jury instructions [Doc 180 (1.0 Mb pdf)]
    • November 13 Fitzgerald proposed jury instructions [Doc 181]
    • February 16, 2007 Court Proposed Jury Instructions
    • November 13 Fitzgerald proposed voir dire [Doc 182]
    • November 17 Libby proposed voir dire [Doc 201]
    • December 15 Libby proposed instructions to partially cure CIPA 6(c) substitutions [Doc 221 (alt 180 kB pdf)]
    • December 19 Court Order re: Press access to voir dire process [Doc 223 (43 kB pdf)]
      • January 4, 2007 Press Application for Access to Voir Dire and Audio [Doc 1 (470 kB pdf)]
      • January 9, 2007 Court DENIES Application for Access to Voir Dire and Audio Recordings [Doc 3]
    • January 10, 2007 Court Order re: trial proceedings and press/public observation [Doc 242 (40 kB pdf)]
    • January 11, 2007 Court Order - Parties to Prepare Proposed Jury Verdict Forms by 1/29 [Doc 243]
      • January 29, 2007 Libby Proposed Verdict Form [Doc 259]
      • January 29, 2007 Fitzgerald Proposed Verdict Form [Doc 260]
      • February 14, 2007 Fitzgerald Memo and Proposed Verdict Form [Doc 284]
      • February 14, 2007 Libby Proposed Verdict Form [Doc 287 (alt 80 kB pdf)]
      • February 15, 2007 Libby Objection to Gov't Verdict Form [Doc 288]
      • February 17, 2007 Libby Objections to Proposed Verdict Form [Doc 294]
      • February 21, 2007 The Verdict Form (15 kB pdf)
    • January 16, 2007 Libby Notice of Pretrial Publicity [Doc 246]
    • January 16, 2007 Voir dire questionnaire and List of Players in the case [Text (55 kB pdf - voir dire) (35 kB pdf - list of names)]
    • January 19, 2007 Libby Proposed Theory of Defense [Doc 249 (alt 75 kB pdf)]
    • February 6, 2007 Libby Proposed IIPA Instruction [Doc 265]
    • February 7, 2007 Fitzgerald Proposed Instruction re: Paucity of Subpoenas to Reporters [Doc 267]
    • February 7, 2007 Fitzgerald Motion for CIPA Instruction [Doc 268]
    • February 12, 2007 Libby Request for Instruction on Drop Miller Count [Doc 279]
    • February 14, 2007 Agreed Proposed Instruction re: "Secret" on Libby's written note [Doc 286 (alt 45 kB pdf)]
    • February 16, 2007 Libby Memorandum re: Good Faith Defense [Doc 291 (alt 340 kB pdf)]
    • February 19, 2007 Fitzgerald Request for More Closing Argument Time [Doc 297]
    • February 19, 2007 Libby Opposition to More Closing Argument Time [Doc 298]
    • February 20, 2007 Libby Brief on Scope of Closing Argument [Doc 299]
    • February 20, 2007 Fitzgerald Closing Argument TRANSCRIPT

  4. Rulings on Motions in limine - Hearing conducted on December 19;
    Judge Walton will reserve/defer ruling on all (4) of the motions
    • Re: Government's charging (or not) decisions
      • October 30 Fitzgerald Motion [Doc 164]
      • November 13 Libby Response [Doc 179]
      • November 17 Fitzgerald Reply [Doc 198]
    • Re: NIE Disclosure
    • Re: CIA damage, Mrs. Wilson CIA employment
      • October 30 Libby Motion [Doc 166 (630 kB pdf)]
      • November 14 Fitzgerald Opposition [Doc 184]
      • November 17 Libby Reply [Doc 200]
    • Re: Reporters assert privilege, Miller incarceration
    • Re: Libby Nondisclosure Agreements with Government
      • January 25 Fitzgerald Motion to Admit Libby's NDA's [Doc 253 (alt 60 kB pdf)]
      • January 29 Libby Response [Doc 258]
      • February 8 One NDA was admitted as a trial exhibit [Government Exhibit GX 5A]
    • Re: Ari Fleisher Immunity Agreement
      • January 26 Libby Motion to Exclude Testimony as to Fleischer's reason (thought leak may be criminal) [Doc 254]
      • January 26 Libby Memorandum to Discover Fleisher Immunity Agreement [Doc 255]
      • January 28 Fitzgerald Response to Libby Motion and Memorandum [Docs 256 & 257]
      • January 29 Court DENIES Discovery, Fitz Agrees to not introduce 1x2x6 article at this time [Ruling from bench] (Article admitted on February 8, but not for the purpose of inferring Fleischer's motive for seeking legal counsel)
    • Re: Articles from Libby's files
      • February 3 Fitzgerald Motion to admit [Doc 261 (alt 120 kB pdf)]
      • February 3 Libby Motion to exclude [Doc 262 (alt 55 kB pdf)]
      • February 5 Court Rules the Articles are admissible [Ruling from the Bench]
      • February 8 Libby mark-up of 1x2x6 Article Admitted [Government Exhibit GX 422]
      • February 8 Libby copy (no mark-up) of "outing" Brewster Jennings Admitted [Government Exhibit GX 423]
    • Re: Admission of CIPA Evidence without the defendant taking the stand
      • February 5 Libby Motion to Admit CIPA w/o Testifying [Doc 264 (alt 600 kB pdf)]
      • February 9 Fitzgerald Response re: Admission of CIPA w/o Testifying [Doc 280]
      • February 11 Libby Reply re: Admission of CIPA w/o Testifying [Doc 277]
      • February 14 CIPA Presentation Limited by Judge Walton [Ruling from the Bench]
      • March 02 Court Limits on evidence wo/Libby taking stand [Docs 309 and 310 (3.7 Mb pdf)]
    • Re: Accommodations made to obtain Russert's Statements
      • February 5 Fitzgerald Motion to Preclude Testimony [Doc 269]
      • February 5 Fitzgerald Affidavit re: relevant conversations with Mr. Russert's counsel [Doc 270 (notice only)]
      • February 6 Libby Response [Doc 272]
      • February 8 Russert Accommodations were admitted at trial
    • Re: Jill Abramson Testimony and Miscellaneous Points
    • Re: Some (specific) Andrea Mitchell Testimony
      • February 6 Fitzgerald Motion to Preclude Some Mitchell Testimony [Doc 266 (alt 85 kB pdf)]
      • February 8 Libby Response to Motions to Preclude [Doc 274 (alt 145 kB pdf)]
      • February 8 Walton rules against admitting MSNBC/Mitchell "everybody knew" tape under Russert [From the Bench]
      • February 8 Walton defers ruling on Some Mitchell Testimony [From the Bench]
      • February 9 Libby Motion to Admit Some Mitchell Testimony [Doc 275]
      • February 9 Fitz Reply to Preclude Some Mitchell Testimony [Doc 276]
      • February 10 Mitchell Reply to Opposition to Motion to Quash [Doc 4]
      • February 11 Libby Offer of Proof re: Some Mitchell Testimony [Doc 278]
      • February 14 Judge rules that "everyone knew" is not admissible - defense chooses to not call Mitchell
      • March 02 Court Grants Fitzgerald Motion to preclude Mitchell Testimony [Docs 309 and 310 (3.7 Mb pdf)]
    • Re: Admission of Russert "Lawyer in GJ room" statements for impeachment purposes
      • February 14 Libby Memo in Support of Impeaching Russert [Doc 282]
      • February 14 Walton Rules that "Lawyer in GJ room" Impeachment will NOT be admitted [From the Bench]
      • February 26 Libby Notice of Filing Russert Exhibit [Doc 303]
      • March 02 Court DENIES Libby Motion to admit Russert impeachment [Docs 309 and 310 (3.7 Mb pdf)]
    • Re: Use of Provisionally Declassified Documents and Testimony
      • February 15 Libby Proffer [Doc 293 (classified)]

  5. December 14 Issues from Libby and Fitzgerald Status Reports
    • Rulings on future Libby motions and subpoenas for testimony
      • One reporter will move to quash subpoena for trial testimony (Woodward?, Novak?, Pincus?, Mitchell) [See Doc 219, Part II (alt 183 kB pdf) and Libby Motion to Opposing Mitchell Motion to Quash (Doc 275)]
        • April 18 Time, Inc. Motion to Quash (Case 1:06-mc-128) [Doc 7]
        • May 8 Press Replies to Libby Objections to Motions to Quash (Cases 1:06-mc-123, et seq) [Docs 8, 6, 13]
        • May 16 Hearing on Motion to Quash or Modify Subpoena to Press [(165 kB pdf) (See also July 9, 2006 discussion at JOM)]
        • May 26 Court Opinion re: Subpoenas on News Reporters (Cases 1:06-mc-123, et seq) [Doc 12]
        • Dec 19 Court Order Media to be Prepared to Produce at Trial [Doc 14]
      • Libby will again subpoena unredacted parts of Judith Miller notebooks [See Doc 219, Part III]
      • December 20 Wilson Motion to Quash Subpoena (Case 1:06-mc-560) [Doc 1]
        • January 3, 2007 Libby Response to Wilson Motion [Doc 4]
        • January 9, 2007 Wilson Reply to Libby Response [Doc 5]
        • January 9, 2007 Court DENIES Wilson Motion to Quash [Doc 6]
    • Government filing of classified prosecution exhibits (Jencks material?)
      • December 22 Fitzgerald Notice of Filing of Substitutions/Redactions to Classified Government Exhibits [Doc 225 (covers a filing containing classified information)]
      • December 27 Court Order granting Motion to File Doc 225 under seal [Doc 237]
    • Possible CIPA proceedings relating to Jencks material (prosecution witness statements and the use of classified information in their cross-examination) [See Doc 219, Part V and Doc 220, Part 5 (alt 47 kB pdf)]
      • January 3, 2007 Libby 2nd Supplemental CIPA 5 Notice [Doc 228 (classified)] (Note: Sec. 5. Notice of defendant's intention to disclose classified information)
      • January 4, 2007 Libby Supplemental CIPA 5 Notice [Doc 232 (classified)]
      • January 4, 2007 Libby Memorandum Concerning 228/232 Notices [Doc 234 (classified)]
      • January 4, 2007 Libby Objections to Proposed Government Exhibits [Doc 235 (classified)]
      • January 4, 2007 Libby Request for Clarification (may belong under CIPA 6(c)) [Doc 236 (classified)]
      • January 12, 2007 Transcript of Jan 10 CIPA Hearing [Doc 244 (classified)]
      • February 5, 2007 Libby 3rd Supplemental CIPA 5 Notice [Doc 263 (classified)]
    • Ruling on defense motion to compel government production of documents from critical time periods. The government has denied requests to date. [See Doc 219, Part V]
      • March 1 Fitzgerald ex parte affidavit [Doc 55-2 (380 kB pdf)]
      • April 5 Government Response to Libby's 3rd Motion to Compel Discovery [Doc 80 (alt 210 kB pdf)]
      • April 12 Libby Reply to Government Response [Doc 82]
      • May 12 Libby Supplemental Memorandum re: 3rd Motion to Compel Discovery [Doc 104]
      • May 19 Government Response to Libby's Supplemental [Doc 107]
      • June 2 Court Order Re: Third Motion to Compel Discovery [Doc 112] Cite: 432 F.Supp.2d 81
    • Ruling on admissibility of certain news articles (especially the Cheney-annotated July 6 Wilson article)
      • May 5 Motions Hearing [Doc 106]
      • May 12 Government Response to Court Inquiry re: News Articles [Doc 105]
      • May 19 Libby Response to Government Response to Court Inquiry [[Doc 108]
      • May 24 Government Reply to Libby Response (News Articles) [Doc 110 - Exhibits A-C]
      • June 2 Court Order Re: Third Motion to Compel Discovery [Doc 112 See FN1]
    • Ruling on making the full transcripts of Libby's grand jury testimony available to the jury
      • December 14 Libby Objection to introduction of Complete Transcript [See Doc 219, Part V]
      • January 4 Fitzgerald Memorandum in Support of introduction [Doc 231]
      • January 18 Court Grants request that Fitzgerald's Response to Libby's Motion in limine to Redact Portions of Grand Jury Testimony may be filed under seal [Doc 250]
    • Possible assertions of privilege, driven by defense questions [See Doc 220, Part 4 (alt 47 kB pdf)]

  6. Rulings on CIPA 6(a) "use, relevance, and admissibility"
    • CIPA 6(a) Hearings were held on September 27 and 28; October 3, 4, 26 and 30; and November 2, 2006
    • Trial Court action before and during the CIPA 6(a) Hearings
      • September 21 Court Opinion re: CIPA 6(a) Admissibility [Doc 145 (alt 82 kB pdf)] - Refers to earlier filings, all of which are sealed and/or classified
      • September 22 Libby Memorandum re: CIPA 5 Admissibility [Doc 146 (340 kB pdf)]
      • September 25 Fitzgerald Response re: CIPA 5 Admissibility [Doc 147]
      • October 2 Libby Memorandum re: CIPA 6(a) History [Doc 150 (290 kB pdf)]
      • October 2 Fitzgerald Memorandum re: CIPA 6(a) History [Doc 151]
    • Trial Court action after the CIPA 6(a) Hearings
    • Fitzgerald Appeal of Trial Court CIPA 6(a) Order and Opinion
    • January 13 Fitzgerald Motion for extension of time to provide redacted CIPA 6(a) pleadings [Doc 245]
    • January 17 Court GRANTS Motion for extension of time to March 02 [Doc 247] (Doc 189 ORDER requires redaction of transcripts of the classified proceedings by March 2, 2007 - Doc 247 ORDER puts release of redacted versions of pleadings and transcripts on March 2)
    • March 01 Fitzgerald motion for classification review extension (Pleadings by April 15, transcripts by May 15) [Doc 307]
    • March 05 Court GRANTS Motion for Classification Review Extension [Doc 312]
    • April 16 Fitzgerald motion for classification review extension (Pleadings by May 1) [Doc 336]
    • April 18 Court GRANTS Motion for Classification Review Extension [Doc 337]

  7. Rulings on CIPA 6(c) substitution of statements and/or summaries for classified information
    • CIPA 6(c) Hearings were held on November 7, 16, 17 and 29, 2006.
    • Fitzgerald 6(c)(2) affidavits, ex parte and in camera, explaining the basis for the classification of one or more pieces of classified information: November 7 [Doc 173], December 4 [Doc 211], and December 7 [Doc 214]
    • CIPA 6(c) Motions, Libby Responses, Court Rulings:
      • November 7 Fitzgerald first proposed substitutions [Doc 171 (classified)]
      • November 7 Libby Response to proposed substitutions [Doc 174 (classified)]
      • November 13 Court DENIED WITHOUT PREJUDICE Fitzgerald's Motion for Proposed Substitutions [Doc 177 Order, Doc 178 Opinion]
        • November 14 Libby Memorandum on CIPA 6(c) Legislative History [Doc 183 (classified)]
        • November 16 Fitzgerald Response on CIPA 6(c) Legislative History - refers to usefulness of CIPA 6(c)(2) affidavit to the Court [Doc 197]
        • November 16 Court VACATED Rationale of Doc 178 - November 13 Opinion [Doc 193]
        • December 8 Court GRANTED Fitzgerald Supplemental Motion and issued Amended Opinion. [Doc 216 (classified) - Doc 224 (redacted) (3.4 Mb pdf)]
      • November 16 Libby Response to Revised Substitutions [Doc 194 (classified)]
      • December 5 Fitzgerald Supplemental Motion for Substitutions [Doc 212 (classified)]
      • December 5 Libby Response to Supplemental Motion [Doc 213 (classified)]
      • December 8 Court GRANTED Fitzgerald's Supplemental Motion [Order: Doc 215] - [Opinion: Doc 216 (classified), Doc 224 (redacted) (3.4 Mb pdf)]
    • There being no CIPA 6(c) Order/Opinion running against the prosecution, I expect no interlocutory appeal asserting error in application of the CIPA 6(c) substitution rule. This does not preclude maintaining the appeal that asserts error on the application of the CIPA 6(a) "use, relevance, and admissibility" rule.
    • December 14 Fitzgerald states there will be no CIPA 6(c) appeal [Doc 220, Part 3]
    • December 14 Libby may object to the adequacy of the substitutions [See Doc 219]
    • December 15 Libby confirms existence of adequacy objections [Doc 221]
    • December 22 CIPA 6(c) Memorandum Opinion Redacted [Doc 224 (3.4 Mb pdf)]
    • January 4, 2007 Libby Motion for Reconsideration of December 8 Order [Doc 233 (classified)]
    • January 9, 2007 Order and Amended Memorandum Opinion [Docs 240 and 241 (classified)]

  8. Ruling on CIPA 6(f) reciprocal disclosure

Libby Trial - Grounds for Appeal

It is a commonly asserted, basically correct but technically incorrect, that the taking of an appeal is limited to challenging a ruling below for errors of law. Appeals may be taken for errors of law (such as admitting or denying evidence, prejudicial or inadequate instructions to the jury) or for clearly erroneous findings of fact by the fact finder. On the latter grounds, a "clearly erroneous finding of fact" is re-labeled an "error as a matter of law."

A clearly erroneous finding of fact is a finding that has (literally) no support in the evidence, or for which all the evidence points in the opposite direction. If it is possible, yet arguably unreasonable for a fact finder to find a certain way based on the evidence in the record, then the (arguably unreasonable) finding of fact is not clearly erroneous.

  1. Rejection of Motion to Dismiss on Grounds of Defective Appointment of Prosecutor
    • February 23 Libby Motion to Dismiss [Doc 45 (1.8 Mb pdf)]
    • March 17 Fitzgerald Response to Motion to Dismiss [Doc 67 (190 kB pdf)(can be converted to text)]
    • March 31 Libby Reply in Support of Motion to Dismiss [Doc 75 (1.0 Mb pdf)]
    • April 27 Court DENIES Libby Motion to Dismiss [Doc 97 (1.5 Mb pdf)]

  2. Rejection of Production of CIA referral and other evidence under CIPA Sec. 4
    • February 24 Libby Motion to Bar Ex Parte Submissions Under CIPA Sec. 4 Without A Particularized Showing of Exceptional Circumstances [Doc 51 (430 kB pdf)]
    • February 24 Motions Hearing [Doc 60]
    • February 27 Court DENIES Motion to Bar Ex Parte Submissions [Doc 52]
    • February 24 Court Orders Additional Briefing [Doc 54 (270 kB pdf)]
    • March 7 Libby Response to Court Order [Doc 61 (520 kB pdf) - Exhibits (120 kB pdf)]
    • March 10 Court Orders date-specific Morning Intelligence Briefing production to Libby [Doc 63 (1.3 Mb pdf)]
    • March 10 Fitzgerald Response to Libby Motion to Bar Ex Parte Submissions [Doc 64 (91 kB pdf)(can be converted to text)]
    • March 15 Libby Reply re: Motion to Bar Ex Parte Submissions [Doc 65 (235 kB pdf)]
    • April 5 Court DENIES in part, Motion to Bar Ex Parte Submissions [Doc 78 (570 kB pdf)]
    • April 17 Fitzgerald Motion for Clarification of April 5 Order [Doc 85]
    • April 28 Fitzgerald delivers CIA Criminal Referral Letter ex parte [Doc 99 (34 kB pdf)(can be converted to text)]
    • May 3 Court DENIES Opposition to CIPA 4 ex parte Production [Doc 102]
    • June 2 Court DENIES Production of CIA Referral, permits substitutions in lieu of classified information at CIPA 4 stage [Doc 113]

  3. Rejection of Motion to Admit Testimony of Memory Expert
    • July 31 Libby Motion to Admit Expert Testimony [Doc 125 (620 kB pdf) (alt pdf source)]
    • September 7 Fitzgerald Opposition to Motion to Admit Expert Testimony [Doc 139 (130 kB pdf)(can be converted to text)]
    • September 15 Libby Reply in Support of Motion to Admit Expert Testimony [Doc 142 (820 kB pdf) (alt pdf source)]
    • October 26 Hearings on Motion to Admit Expert Testimony [Details The Memory Expert Forgot (JOM)]
    • November 2 Court DENIES Libby Motion [Doc 169 (135 kB pdf)(can be converted to text)]

  4. Overruling of Objections to Substitution of Critical Classified Evidence
    • December 8 Court Order and Opinion [Doc 224 (3.4 Mb pdf)]

  5. Inability to seat an impartial jury - tainted jury - jury error
    • Fitzgerald's press conference of October 28, 2004 indicates that the prosecutor is engaging in selective (politically-motivated) prosecution
    • Judge Walton failure to rein-in Fitzgerald's closing argument where Fitzgerald told the jury that a covert agent was outed
    • Judge Walton failure to rein-in Fitzgerald's closing argument where Fitzgerald told the jury that Libby didn't mention to Cheney that Libby heard from Rove, and further hints that Cheney was aware of Libby's alleged leaking to reporters
    • Juror Denis Collins and others report that the jury based their guilty verdicts in part on the premise that Libby had seen the Wilson op-ed as marked up by Vice President Cheney

  6. Defects in jury selection or jury instruction
    • e.g., prejudicing the trial by implying that the leak itself represented a chargeable offense
    • Failure to instruct that Miller-related evidence may not be used to find obstruction
    • Ruling on noting of espionage act as well as IIPA being possible statutory violations (i.e., laws that Libby, if he recalled leaking, may have thought he broke - motive is ascribed if Libby thought there was a possibility of having perpetrated a criminal act)
    • Ruling in favor of prosecution on language of "Memory Instruction" (two elements repeatedly requested by defense were omitted from memory instruction)
    • Clarification of "reasonable doubt" in response to jury question [Doc 311, p2] following suggestion of prosecution for the judge to reply, in part, "I do not understand what you mean by humanly possible."
    • Instructing the jury to consider entirety of GJ testimony to find obstruction in Libby's version of the Cooper conversation, instead of focusing them on the difference between the conversation as recited at 32.b and 33.b in the indictment [Doc 313 (80 kB pdf)] (Juror Denis Collins said that the jury's not not-guilty verdict on Count 3 used the defense-preferred construction of this count)
    • Ruling on "Good faith defense" instruction ("Good faith defense" appears in instructions)
    • Ruling on application of "corrupt" ala Arthur Andersen ("intent" language in instructions includes "corrpt" and "evil motive.")
    • Ruling in favor of prosecution on language of "Theory of Defense" (Theory of Defense is the same as proposed by the defense, except for adding the word "contends" to the description of Libby's expectation that reporter and government witnesses would testify freely)

  7. Rulings that admitted or denied certain lines of evidence (duplicates some material currently in the "active trial" area above, and additionally contains grounds of appeal adapted from public speculation, e.g., Tom Maguire on February 24)
    • Admitting excessive / prejudicial amounts of grand jury proceedings
    • Admitting a Libby NDA agreement as evidence of "fear of firing" motive for Libby to lie
    • Admitting marked-up "1x2x6" article taken from Libby's files
    • Admitting not-marked-up "Outing of Brewster Jennings" article taken from Libby's files
    • Admitting the Wilson op-ed marked-up by Vice President Cheney
    • Precluding discovery of Fleischer's immunity agreement and related correspondence
    • Precluding the "everyone knew" line of inquiry of Mitchell (the defense elected to not call Mitchell at all, although they could have because she is another reporter who would have testified speaking to Libby during the week of July 7, and that Libby did not tell her that Mrs. Wilson works at the CIA) If Mitchell knew, then Russert might have, which creates a possibility that Libby's recounting of the Russert conversation is accurate
    • Precluding Russert impeachment evidence, that Russert in fact knows that grand jury witnesses cannot be accompanied by counsel
    • Limiting the amount of CIPA evidence admissible by witnesses other than Libby (see paragraph of commentary below, on the relationship between not calling Libby to the stand and basing an appeal on the nature of CIPA substitutions)
    • The entirety of Miller's testimony should have been excluded because Fitzgerald's August 27, 2004 affidavit to Judge Hogan was misleading. In particular, the phrasing of FN 15 on page 28 caused the Court to conclude, in error, that Plame was covert (or otherwise had some protected status). The Circuit Court thought that testimony from Miller was required to investigate a charge (e.g., Espionage Act) that depended on the covert or protected status that the Circuit Court wrongly assumed. If Fitzgerald had clarified that his only objectives were false statements, perjury and obstruction, the Circuit Court would have quashed the grand jury subpoena to Miller.
    • The parts of Bond's testimony that refer to Eckenrode's notes of his interview with Russert should have been excluded because those notes were not located
    • Permitting prejudicial closing argument that asserted Libby outed a covert agent

Libby Case - Related Issues

In the January 17 Response to Motion to Unseal, Fitzgerald argued that the motion should be set aside until after the Libby trial, because the exact grand jury material that will come out at trial is uncertain.

There being a notice of filing of a sealed ex parte affidavit, it is clear that the Circuit Court of Appeals will be releasing only the parts of their February 2005 Opinion and the portions of Fitzgerald's affidavits that directly relate to testimony that surfaces during the trial.

The public won't get to see all the material produced during the investigation of Rove, with the "holes" in the Rove investigation that Fitzgerald expected to fill in with testimony from Cooper.


On November 15, The Court issued an Order [Doc 189] that CIPA pleadings made under seal are to be redacted by January 15, 2007 (extended to March 2nd - then extended to April 15 for the pleadings and May 15 for the hearing transcripts - then extended to May 1 for the pleadings). I assume this order does not pertain to pleadings filed after November 15, and that it refers only to pleading relating to CIPA 6(a). The Order may be further limited to Government pleadings, as these are the only items denominated "under seal." Libby filings are denominated "Classified."

The defense decision to not call Libby to the stand weakens the argument that his defense was hampered because of the nature of the substitutions. In place of that (nature of the substitutions) argument, Libby can now argue that it was improper to preclude admission of the evidence altogether - that is, that the evidence should have come in even though Libby did not take the stand in his own defense. The point of those observations is that the contents of the CIPA briefs and rulings is not as interesting, given that the "not admitted at all" argument is one step further removed from the argument that the contents of the substituted testimonial and documentary evidence represents an "inadequate" defense.

127 NOTICE (consolidated) CIPA 5 by I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 08/15/2006)

128 MEMORANDUM concerning use, relevance, and admissibility of classified documents and information listed in defendant's consolidated CIPA 5 notice by I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 08/15/2006)

----====----

133 MOTION Seal Government's CIPA Section 6(b) Notice by USA as to I. LEWIS LIBBY. (Attachments: # 1 Text of Proposed Order)(Zeidenberg, Peter) (Entered: 09/05/2006)

136 ORDER that this pleading shall be placed under seal in the Court files 133 Motion as to I. LEWIS LIBBY (1); Signed by Judge Reggie B. Walton on 9/6/06. (erd) (Entered: 09/06/2006)

148 MOTION to Seal Government's Amended Section 6(b) Notice by USA as to I. LEWIS LIBBY. (Kedian, Kathleen) (Entered: 09/26/2006)

149 ORDER granting 148 Motion to seal government's amended CIPA Section 6(b) Notice as to I. LEWIS LIBBY (1); Signed by Judge Reggie B. Walton on 9/27/06. (erd) (Entered: 09/27/2006)

----====----

141 MOTION Motion to Seal Government's Memorandum in Opposition to Defendant's Arguments Regarding the Use, Relevance and Admissibility of Classified Documents by USA as to I. LEWIS LIBBY. (Kedian, Kathleen) (Entered: 09/12/2006)

144 ORDER granting 141 Motion that the pleading be placed under seal in the Court files as to I. LEWIS LIBBY (1); Signed by Judge Reggie B. Walton on 9/17/06. (erd) (Entered: 09/19/2006)

--==--

143 REPLY MEMORANDUM concerning use, relevance, and admissibility of classified documents and information listed in defendant's consolidated CIPA 5 Notice by I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 09/19/2006)

----====----

160 MOTION to Seal Government's Specific Objections to Classified Information Defendant Seeks to Introduce at Trial by USA as to I. LEWIS LIBBY. (Kedian, Kathleen) (Entered: 10/23/2006)

162 ORDER that this pleading be placed under seal in the Court files as to I. LEWIS LIBBY re 160 MOTION to Seal Government's Specific Objections to Classified Information Defendant Seeks to Introduce at Trial filed by USA, Signed by Judge Reggie B. Walton on 10/24/06. (erd) (Entered: 10/25/2006)

----====----

163 RESPONSE by defendant to government's specific objections to classified information defendant seeks to admit at trial by I. LEWIS LIBBY (CLASSIFIED INFORMATION)(erd) (Entered: 10/26/2006)


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