No Easy Answers

Thursday, December 14, 2006

Status Report - Fitzgerald [Doc 220]

     Case 1:05-cr-00394-RBW            Document 220        Filed 12/14/2006        Page 1 of 5

                            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 STATUS REPORT


Special Counsel, respectfully submits the following status report as requested by the Court on

December 11, 2006.

1.     Classified Government Exhibits

       The government previously provided the Court and the defense with binders of proposed

classified government exhibits not also designated by the defense. The intelligence community is

working on final substitutions and/or redactions to those exhibits, ^1 and the government

         As the Court is aware, for the past several months, the intelligence community has been
intensely focused on preparing substitutions and/or redactions for classified defense exhibits for the
process under the Classified Information Procedures Act (CIPA). The intelligence community has
also recently completed the classification review of the Court's November 15, 2006 opinion. Among
the classification review projects that are still underway are the review of the classified government
exhibits, the review of a limited amount of classified Jencks Act material the government expects
to turn over to the defense on December 22, 2006 (see item 5 below), the review of the Court's
December 11, 2006 opinion, the review of all of the pleadings filed during the CIPA process, and
the review of all of the transcripts for the hearings conducted during the CIPA process. Because
there are a limited number of personnel who can perform the necessary classification reviews, the
intelligence community has asked us to prioritize the reviews for them. Subject to the Court's
approval, the government has tentatively advised the intelligence community that priority should be
given to classification reviews that are necessary to ensure no delay in the trial date. Therefore, if
the Court concurs with that prioritization, the intelligence community has advised us that it can
complete the classification reviews for the classified Jencks Act materials and the classified
government exhibits next week, and will make every effort to complete the classification review of

     Case 1:05-cr-00394-RBW           Document 220         Filed 12/14/2006      Page 2 of 5

anticipates filing the final substitutions and/or redactions to those documents on Friday,

December 22, 2006. The Court need not approve the substitutions because the information

redacted in the exhibits is being removed from the government's evidence, not the defense's, and

what will be offered in evidence will be unclassified. However, we will provide the

substitutions/redactions to the defense so that they can make sure that these exhibits do not raise

any issues from their perspective.

2.      Privilege Issues for Classified Documents

        We have been advised that the White House has no current plans to assert privilege as to

any classified documents in this matter.

3.      Government Appellate Rights Under CIPA

        The government does not intend to appeal the Court's ruling pursuant to CIPA Section

6(c), and the government will move to dismiss its Notice of Appeal on the Court's CIPA Section

6(a) ruling.

4.      Anticipated Witness Assertions of Privilege or Attempts to Quash or Limit Trial

        The government is not aware of any government witness who is intending to assert a

blanket privilege, and the government does not otherwise anticipate any of its witnesses moving

to quash or limit trial subpoenas. The government also does not intend to examine any witnesses

on any topic for which we expect an assertion of privilege. Although the Jencks Act materials

the government will be turning over contain a very limited number of topics where privilege

the December 11, 2006 opinion by December 22, 2006; however, they have advised us that
completing the review of the Jencks Act materials and the classified government exhibits may cause
a slight delay in completing the review of the Court's opinion.


        Case 1:05-cr-00394-RBW         Document 220         Filed 12/14/2006      Page 3 of 5

issues may arise, the government does not intend to examine witnesses on those topics. When

the Jencks Act materials are turned over, we will alert the defense to the potential privilege

problems and request that they advise us whether they intend to examine on any of those topics.

         As the government does not know who the defense intends to call, we do not know

whether privilege issues will arise with any of their witnesses; however, the Court and the

defense should be aware that each government agency follows certain regulations that govern,

among other things, testimony of current or former government employees regarding information

acquired in the performance of their official duties. These regulations are often called "Touhy

regulations" after the Supreme Court case authorizing them, United States ex rel. Touhy v.

Ragen, 340 U.S. 462 (1951). We will provide the defense with cites to those regulations and to

points of contact at relevant agencies by letter of separate cover.

5.       Jencks Act Material

         The government intends to turn over Jencks Act material to the defense on or before

December 22, 2006, and the defense has agreed to provide reverse Jencks Act material to the

government on January 2, 2007.

6.       Witness Security Issues

         The government does not anticipate any security issues with the witnesses it intends to


7.       Voir Dire Process

         The government has no objection to the Court's proposal that two reporters be present in

the courtroom during the voir dire process, and that other members of the media be permitted to

watch via closed circuit in the media room. The government also agrees with the defense that the


     Case 1:05-cr-00394-RBW           Document 220         Filed 12/14/2006      Page 4 of 5

jurors should be told that if they wish to answer any questions privately, they can do so at sidebar

with the judge and the attorneys.

8.     Additional Issues

       There is an outstanding issue regarding a discrete set of documents which we are

discussing with the defense. We have been working towards an agreed resolution with defense

counsel and have exchanged written proposals to resolve the matter, and can advise whether that

has been resolved by the time of the December 19, 2006 conference.

                                                      Respectfully submitted,

                                                      PATRICK J. FITZGERALD
                                                      Special Counsel
                                                      U.S. Department of Justice
                                                      1400 New York Ave., NW
                                                      Washington, D.C. 20530

Dated: December 14, 2006.


     Case 1:05-cr-00394-RBW           Document 220        Filed 12/14/2006      Page 5 of 5

                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 14th day of December, 2006, I caused true

and correct copies of the foregoing to be served on the following parties:

                          William Jeffress, Esq.
                          Baker Botts
                          The Warner
                          1299 Pennsylvania Avenue, N.W.
                          Washington, DC 20004-2400
                          Facsimile: 202-585-1087

                          Theodore V. Wells, Esq.
                          Paul Weiss
                          1285 Avenue of the Americas
                          New York, NY 10019-6064
                          Facsimile: 212-373-2217

                          John D. Cline, Esq.
                          Jones Day
                          555 California Street
                          San Francisco, CA 94104
                          Facsimile: 415-875-5700

                                                     Patrick J. Fitzgerald
                                                     Special Counsel
                                                     U.S. Department of Justice
                                                     10th & Constitution Ave., NW
                                                     Washington, D.C. 20530

                                             By:       /s/ Kathleen M. Kedian
                                                       Deputy Special Counsel



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