No Easy Answers

Monday, January 29, 2007

Fitzgerald Memorandum in Opposition - Re: Fleisher Testimony [Doc 256]

Ahhh ... no OCR drudgery, a quick conversion. Late news by noew, since Fleisher's time in the witness box has concluded. But the memorandum illuminates the legal arguments advanced by Fitzgerald, for what they're worth.

     Case 1:05-cr-00394-RBW           Document 257        Filed 01/29/2007       Page 1 of 2

                             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"           )

                                      NOTICE OF FILING

       The United States of America, by and through its attorney, Special Counsel Patrick

Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit

in support of its Memorandum in Opposition to the Defendant's Dual Requests Concerning the

Testimony of Witness Ari Fleischer.

                                                             Patrick J. Fitzgerald
                                                             Special Counsel

Dated: January 28, 2007

    Case 1:05-cr-00394-RBW           Document 256        Filed 01/29/2007      Page 1 of 10

                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

               v.                                :   Cr. No 05-394 (RBW)
            a/k/a "Scooter Libby"


       The United States of America, by and through Patrick J. Fitzgerald, Special Counsel, hereby

respectfully submits this memorandum in opposition to (a) defendant's motion to exclude evidence

regarding the circumstances surrounding witness Ari Fleischer's decision to seek immunity; and (b)

defendant's request for the production of documents and information concerning communications

between the government and Mr. Fleischer's counsel prior to the grant of immunity to Mr. Fleischer.

As demonstrated below, the defendant is not entitled to challenge Mr. Fleischer's credibility based

on an immunity order while precluding the government from introducing evidence concerning facts

and circumstances that surrounded the grant of immunity, and is not entitled, at the same time, to

demand irrelevant details concerning the discussions that preceded the entry of the immunity order.


Anticipated Testimony of Government Witness Ari Fleischer

       The government anticipates that Ari Fleischer, the former White House press secretary, will

testify that while having lunch with defendant Libby on July 7, 2003, defendant Libby told him that

Ambassador Joseph Wilson's wife worked in the Counterproliferation Division of the CIA.

Defendant described this news to Mr. Fleischer as "hush-hush" or on the "Q.T." Mr. Fleischer, who

was leaving that evening for a week-long Presidential trip to Africa, subsequently discussed this

    Case 1:05-cr-00394-RBW             Document 256         Filed 01/29/2007        Page 2 of 10

information with members of the press while on the trip to Africa.

Immunity Order

        On September 28, 2003, nearly three months after leaving government service, Mr. Fleischer

read a Washington Post article by Mike Allen and Dana Priest which stated that the Department of

Justice had initiated a criminal investigation regarding an "allegation that administration officials

leaked the name of an undercover CIA officer to a journalist." The "undercover" officer was

identified as being the wife of former ambassador Joseph Wilson. The article stated that the

"intentional disclosure of a covert operative's identity is a violation of federal law." The article went

on to say that the "officer's name was disclosed on July 14 in a syndicated column by Robert D.

Novak, who said his sources where two senior administration officials."

        Upon reading this article, Mr. Fleischer feared that, although he had made no disclosures to

Robert Novak, and although he had had no knowledge concerning whether Ambassador Wilson's

wife was a covert agent, or whether information concerning her employment was classified when

he spoke to reporters in Africa, he might nevertheless be in legal jeopardy. Therefore, Mr. Fleischer

sought legal counsel. Subsequently, on advice of counsel, Mr. Fleischer refused to provide

information, or answer any questions put to him by the government, unless and until he was provided

with statutory immunity. After being granted immunity, Mr. Fleischer provided investigating agents

and the grand jury the above information, together with other information relevant to the


Pretrial Discovery

        Prior to trial, the government provided to the defense a copies of the Use Immunity Order

entered by Acting Chief Judge Fried on February 13, 2004, FBI reports summarizing information


    Case 1:05-cr-00394-RBW            Document 256         Filed 01/29/2007        Page 3 of 10

provided to the government by Mr. Fleischer, and transcripts of Mr. Fleischer's grand jury testimony.

On December 29, 2006, defense counsel requested that the government produce "[a]ny proffer that

Ari Fleischer made to the government, either in person or through counsel, before receiving

immunity." On January 10, 2007, the government informed defense counsel that, "Mr. Fleischer

made no proffers to the government before he received immunity."

       In a letter dated January 11, 2007, defense counsel then made the following additional


       Paragraph 9 of your letter states that "Mr. Fleischer made no proffers to the
       government before he received immunity." Please confirm that that statement
       encompasses any proffers made on Mr. Fleischer's behalf by his attorneys, whether
       orally or in writing. At bottom, what we want to know is whether Mr. Fleischer was
       given "blind immunity," in that the government had no idea from discussions with
       his counsel as to what he would say once immunized, or instead did his counsel
       communicate in some fashion to the government about the expected nature of Mr.
       Fleischer's testimony, orally or in writing, prior to the grant of the immunity order.
       If Mr. Fleischer's attorneys did make an oral proffer of any nature, please provide us
       with either the notes taken during that proffer or a description of its contents. If they
       made no proffer, please confirm that fact as well.

       The government responded the following day:

       We have already indicated that Mr. Fleischer made no proffers to the government
       prior to his being given a grant of immunity. There is no other properly discoverable
       information regarding the circumstances surrounding his grant of immunity to which
       you are entitled.

Defense Opening Statement

       Not surprisingly, defense counsel pointed out to the jury during opening statement that Mr.

Fleischer would be testifying pursuant to an immunity order:

       But in terms of evaluating Mr. Fleischer's testimony, Mr. Fleischer is in a different
       position than any other witness in this case. Mr. Fleischer was the Press Secretary
       to President Bush. And when the FBI asks to speak to Mr. Fleischer, Mr. Fleischer
       asserted the Fifth Amendment. Mr. Fleischer refused to testify. He said I plead the


    Case 1:05-cr-00394-RBW             Document 256         Filed 01/29/2007        Page 4 of 10

        Fifth. I will not testify about anything unless I am immunized. I want complete
        protection from anything.

        And the Government immunizes the former Press Secretary to the President of the
        United States. And after being immunized, Mr. Fleischer then testifies and says he
        has this recollection of this conversation with Mr. Libby.

        So what you'll see, in terms of the evidence concerning these six witnesses, that all
        of these witnesses have their own personal recollection problems, or, like Mr.
        Fleischer, may have issues where their credibility should be questioned because they
        have an arrangement. They have a deal whereby they have been given immunity.

1/23/07 Tr. 36-38 (emphasis supplied).

        Accordingly, before Mr. Fleischer had even taken the stand, the defense has argued that he

should not be believed because he is an immunized witness. Defense counsel acknowledges that the

defense plans to argue to the jury that it should "consider whether his immunity agreement gives Mr.

Fleischer a reason to provide testimony in a manner that will curry favor with the government."

Motion in Limine at 2-3.

January 25, 2007 Proceedings

        On January 25, 2007, defense counsel objected to the admission in evidence of any

information regarding Mr. Fleischer's reasons for seeking immunity and, in particular, to the

admission of a copy of the September 28, 2003 article which led Mr. Fleischer to seek counsel and

begin the process of obtaining an immunity agreement. In sum, government counsel explained that

it sought to introduce the proffered testimony, and the September 28, 2003 article, for the limited

purpose of mitigating the effect of the immunity agreement, and of rebutting the defense argument

that, in light of that agreement, Mr. Fleischer's testimony is not worthy of belief. The Court offered

the parties an opportunity to present applicable legal authorities, and stated its preliminary view that:


    Case 1:05-cr-00394-RBW            Document 256         Filed 01/29/2007        Page 5 of 10

       if he's going to be placed under attack and it's suggested that because he sought
       immunity, and it seems to me that's the only reason the defense would want that
       information before the jury, that the government's got to have some opportunity to
       explain why he thought it was appropriate to seek it. So they can at least put it into

1/25/07 Tr. 118.

       During the same proceeding, defense counsel sought to "make a record" (id.) regarding its

requests for information related to any oral or written "attorney proffer" of Mr. Fleischer's testimony

prior to the grant of immunity. Defense counsel stated that government counsel had represented that

Mr. Fleischer had been given, "in Mr. Zeidenberg's words, blind immunity, that is without any

knowledge of what he would say about Mr. Libby." Id. at 119.1 Government counsel clarified that

what actually had been represented to the defense was that there had been no factual proffers made

by Mr. Fleischer, and that the government had received nothing from counsel for Mr. Fleischer to

which the defense was entitled. Id. at 120. More specifically, government counsel represented to

the Court that the government received no factual proffer from Mr. Fleischer or his counsel as to

what Mr. Fleischer would say about Mr. Libby's conduct. Id.

          Defense counsel's in-court description of the exchange of correspondence related to this
issue was inaccurate, as is the description of the court proceedings contained in defense counsel's
brief. Defense counsel did not as represented in its brief at page 2 "summarize[] for the Court the
government's response" to its requests and describe the defense "conclusion" that the government
had provided Mr. Fleischer with "blind immunity." Instead, defense counsel represented that, "in
Mr. Zeidenberg's words," Mr. Fleischer had been given "blind immunity." 1/25/07 Tr. 119. As
indicated above, the term "blind immunity" was defense counsel's, not government's counsel's. See
1/25/07 Tr. 132.


     Case 1:05-cr-00394-RBW            Document 256         Filed 01/29/2007        Page 6 of 10


I.      Admissibility of Evidence Related to Circumstances Leading to Grant of Immunity

        The defense has already cited Mr. Fleischer's receipt of immunity as a reason for the jury to

believe that Mr. Fleischer will testify as the prosecution wants him to testify, regardless of the truth.

As this Court recognized, evidence that a witness entered into an immunity agreement serves no

purpose other than to attack the witness's credibility.

        In this case, the government is entitled to "draw the sting" of the immunity agreement and

also to put that agreement in context by presenting the testimony of Mr. Fleischer regarding his

reasons for seeking immunity. While the government believes that the September 28, 2003 article

that led Mr. Fleischer to fear that he was in legal jeopardy is admissible for the limited purpose of

establishing Mr. Fleischer's state of mind, given the particular concerns expressed by the Court

regarding the possibility that the jury might rely improperly on some of the contents of the article,

the government has decided not to seek to admit a copy of the article through Mr. Fleischer.

However, given that Mr. Fleischer's credibility has already been attacked and will continue to be

attacked on cross-examination, it would be inappropriate to bar the government from permitting Mr.

Fleischer to explain to the jury the reasons and motives for his seeking immunity. He should be

permitted to explain his own state of mind, why he felt he might get caught up in the investigation,

and why he refused to speak with the government unless and until he had been given a grant of

immunity, so that the jury can evaluate all of the evidence relevant to Mr. Fleischer's credibility.

        It is entirely appropriate for the government to "draw the sting" of prospective impeachment

by bringing out the relevant evidence on direct examination. See, e.g., United States v. Spriggs, 996

F.2d 320 (D.C. Cir. 1993); United States v. Montani, 204 F.3d 761 (7th Cir. 2000)(permitting the


    Case 1:05-cr-00394-RBW            Document 256        Filed 01/29/2007       Page 7 of 10

admission of a co-defendant's plea agreement in government's case in chief; "A party may not

`bolster the credibility' of a witness on direct examination, but we have held repeatedly that

introducing evidence of a witness's guilty plea or immunity deal serves the `truth-seeking' function

of the trial by presenting all relevant aspects of a witness's testimony at one time.")(citing United

States v. LeFevour, 798 F.2d 977, 983-84 (7th Cir. 1986)).

       Moreover, contrary to defendant's contention (Mtn at 4), the proffered evidence is not being

offered as "substantive evidence of the guilt" of the defendant. Mtn. at 4 (citing United States v.

Tarantino, 846 F.2d 1384, 1404-05 (D.C. Cir. 1988)). Quite the opposite. The proffered testimony

is being offered for the purpose of rebutting the inference that Mr. Fleischer must have actually

committed a crime or he would not have required, or obtained, immunity. Mr. Fleischer will testify,

if permitted, that while in his view he did not knowingly or intentionally do anything illegal or

improper, he was not sure others would view his conduct as benign. Mr. Fleischer's testimony will

make clear that he does not believe that he committed any criminal offense. Thus, Mr. Fleischer's

testimony regarding the circumstances that led him to seek immunity will not cause the jury to reach

the conclusion that Mr. Fleischer in fact committed the crime of disclosing the identity of a covert

CIA employee, much less that Mr. Libby committed that crime. In any event, any such risk can be

cured "through the usual method of instructing the jury to consider the evidence only for

credibility." Montani, 204 F.3d at 767.

       Defendant purports to quote the government as arguing that evidence concerning the

underlying investigation "lack[s] relevance to the issues at trial." Mtn. 5 (citing Gov't Motion in

Limine to Preclude Evidence, Comment and Argument Regarding Charging Decisions ("Gov't

Mtn") at 6). However, defense counsel's quotation omits the government's footnote which expressly


      Case 1:05-cr-00394-RBW            Document 256          Filed 01/29/2007        Page 8 of 10

acknowledged that "information relating to its discussions with prospective witnesses, for example,

an agreement to provide immunity, is relevant on the issue of the witnesses' motivation." Gov't Mtn

at 6, n 1. It is entirely appropriate for the defense to vigorously cross-examine Mr. Fleischer on the

impact of the immunity agreement; at the same time, the government is entitled to put the agreement

in context, and to present for the jury's consideration all of the facts and circumstances relevant to

the agreement, and to Mr. Fleischer's credibility.

II.     The Defendant Has Received All Information Regarding the Immunity Order to Which
        He Is Entitled.

        The government has provided the defense with a copy of Mr. Fleischer's immunity order.

There is nothing in any statement made by Mr. Fleischer's counsel to which the defense is entitled

under the Jencks Act, Brady or Giglio. Mr. Fleischer was given immunity based on general

information regarding the nature of his prospective testimony that added little or nothing to what the

government had already determined in the course of its investigation. Neither Mr. Fleischer nor his

counsel proffered that he would provide specific information incriminating Mr. Libby. Nothing that

the government received prior to Mr. Fleischer being granted immunity is in any way inconsistent

with the prior testimony and statements of Mr. Fleischer that have been provided to the defense, or

in any way reflects the existence of any tacit agreements, incentives or benefits beyond the immunity

order itself. There are none.

        The defense relies on a single district court case from the Central District of California in

support of its argument that the defense is entitled to receive under Giglio any information revealing

the "nature of the negotiation process that led to the leniency agreement." United States v. Sudikoff,

36 F. Supp. 2d 1196 (C.D. Cal. 1999). Apart from the fact that Sudikoff does not reflect the law of

this Circuit, the decision in that case does not support the notion that the defense is entitled to receive


    Case 1:05-cr-00394-RBW             Document 256         Filed 01/29/2007        Page 9 of 10

a description of every statement made by a witness's lawyer prior to a grant of immunity, irrespective

of its impeachment value. Instead, the Court in Sudikoff held that the defendant was entitled to

obtain proffers and notes from multiple proffer sessions with a witness because such materials may

reveal prior inconsistent statements and indicators of motivation to lie. Id. at 1198.

        While the government strongly objects to the notion that the defense is entitled to anything

beyond what has already been provided, it has provided the Court, in a separate pleading, filed ex

parte and under seal, an Affidavit of Patrick J. Fitzgerald which sets forth the collective recollections

of the prosecution team concerning any relevant conversations with Mr. Fleischer's counsel prior

to the grant of immunity.


        For all of the foregoing reasons, the government respectfully requests that this Court deny

the Motion in Limine of I. Lewis Libby and reject the defendant's suggestion that the government

has failed to provide all information regarding the immunity order provided to witness Ari Fleischer

to which the defendant is entitled.

                                                        Respectfully submitted,

                                                        PATRICK J. FITZGERALD
                                                        Special Counsel
                                                        219 South Dearborn Street
                                                        Chicago, Illinois 60604
                                                        (312) 353-5300

Dated: January 28, 2007


    Case 1:05-cr-00394-RBW           Document 256        Filed 01/29/2007      Page 10 of 10

                                CERTIFICATE OF SERVICE



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