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.
/s/
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
:
UNITED STATES OF AMERICA
:
v. : Cr. No 05-394 (RBW)
:
:
I. LEWIS LIBBY,
:
a/k/a "Scooter Libby"
GOVERNMENT'S MEMORANDUM IN OPPOSITION TO
DEFENDANT'S DUAL REQUESTS CONCERNING
THE TESTIMONY OF WITNESS ARI FLEISCHER
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.
BACKGROUND
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
investigation.
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
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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
request:
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
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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:
4
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
context.
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.
1
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.
5
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 6 of 10
ARGUMENT
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
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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
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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
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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.
CONCLUSION
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,
/s/
PATRICK J. FITZGERALD
Special Counsel
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5300
Dated: January 28, 2007
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Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 10 of 10
CERTIFICATE OF SERVICE
[snippage]
10
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