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Thursday, January 25, 2007

Fitzgerald Motion in limine to Admit NDA's [Doc 253]



     Case 1:05-cr-00394-RBW            Document 253         Filed 01/25/2007       Page 1 of 7



                           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 MOTION IN LIMINE TO ADMIT
           NONDISCLOSURE AGREEMENTS EXECUTED BY DEFENDANT

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

Counsel, respectfully submits this motion in limine to admit nondisclosure agreements executed by

the defendant. As discussed below, these agreements are highly relevant to defendant's state of mind

and motive to lie at the time of the charged offenses, and should be admitted.

                                        INTRODUCTION

       As this Court is aware, defendant is charged with obstruction of justice, perjury, and making

false statements to investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001 in connection

with an investigation concerning leaks to reporters of previously-classified information regarding

the employment of Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson. While

the government has agreed not to present evidence at trial to establish that Ms. Wilson's employment

status was in fact classified in June and July 2003, the government intends to offer proof to establish

that: (a) the FBI and grand jury investigations defendant sought to obstruct concerned the possible

unauthorized disclosure of classified information and the possible unlawful disclosure of a covert

agent; (b) the false information defendant is charged with providing to investigators and the grand

jury was material to both the FBI and the grand jury investigations; (c) defendant knowingly made



     Case 1:05-cr-00394-RBW            Document 253         Filed 01/25/2007       Page 2 of 7



false statements to the FBI and the grand jury; and (d) defendant had a motive to lie in that, at the

time he made the charged false statements, he had reason to fear that the information regarding Ms.

Wilson that he disclosed to reporters may have been classified, and that Ms. Wilson may have been

a covert CIA officer, and was well aware of the potential consequences of his having disclosed

classified information. Specifically, the government intends to prove that, at the time he made the

charged false statements, defendant was aware that, if Ms. Wilson's employment status was in fact

classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal

prosecution under a number of statutes, defendant faced the possible loss of his security clearances,

removal from office, and termination from employment as a result of his disclosures to New York

Times reporter Judith Miller and Time magazine reporter Matthew Cooper.

       As part of its proof on this issue, the government seeks to introduce in evidence at trial five

non-disclosure agreements executed by defendant during the course of his employment as the Vice

President's Chief of Staff and National Security Advisor, and as the President's National Security

Advisor. See GX5A-GX5F, copies of which have been provided to the Court and defense counsel.

These agreements are signed instruments having independent legal significance, and thus are non-

hearsay, and also are admissible as admissions of a party-opponent. Because these agreements are

probative of defendant's state of mind at the time of the charged offenses, they should be admitted.

                                           ARGUMENT

       In this case, the defendant is charged with obstruction, perjury, and false statements with

respect to FBI and grand jury investigations into whether crimes were committed by the public

disclosure of the CIA employment of Valerie Plame Wilson. Evidence of defendant's knowledge

of the possibility that this information was classified, or that Ms. Wilson was a covert officer of the


                                                  2



     Case 1:05-cr-00394-RBW            Document 253        Filed 01/25/2007        Page 3 of 7



CIA, and defendant's knowledge of all the potential adverse consequences of disclosure of classified

information, or information concerning the identity of a covert officer, is obviously highly probative

of defendant's motive to lie to the FBI and the grand jury in this case and highly probative of the

facts, which the government is obligated to prove beyond a reasonable doubt, that defendant acted

knowingly and intentionally in making false statements to both the FBI and the grand jury and, with

respect to Count 1, that he acted with the intent to obstruct the grand jury's investigation. Defense

counsel argued repeatedly in his opening statement that defendant had no motive to lie. See Tr. 54

("He's innocent and no motive to lie."); Tr. 88-89 ("Now, Mr. Fitzgerald suggested that Mr. Libby

might have a motive to lie because Mr. McClellan, the President's Press Secretary, went on T.V. and

said, anybody involved in leaking classified information, you are going to lose your job. You won't

be part of this administration. Well, you will find that Mr. Libby was not concerned about losing

his job in the Bush administration."); Tr. 104 ("He is innocent and no motive to lie.") Thus, a

fundamental question the jury will be asked to decide in this case is whether defendant lied

intentionally in order to avoid the potential consequences of having disclosed information concerning

Ms. Wilson's employment to reporters.

       The government seeks to offer evidence demonstrating that one of the grounds for

defendant's motive to lie was his awareness of his duty to safeguard classified information, and of

the potential consequences of breaching that duty, an awareness defendant obtained in part through

one or more "security indoctrination[s]" concerning the nature and protection of classified

information. On January 23, 2001, January 25, 2001, February 7, 2001, May 11, 2001, and March

6, 2003, respectively, during the course of defendant's employment in the Office of the Vice

President, defendant executed five separate non-disclosure agreements acknowledging that he


                                                  3



     Case 1:05-cr-00394-RBW           Document 253         Filed 01/25/2007       Page 4 of 7



received such indoctrination, and that he was specifically warned of the consequences of improperly

disclosing classified information. By executing these agreements, defendant acknowledged that he

was advised of his obligations with respect to classified information, including marked and

unmarked written communications and oral communications, to which he had access in the scope

of his employment as the Vice President's Chief of Staff and National Security Advisor, including

his obligations not to disclose such information to unauthorized persons and, in the event of

uncertainty, to confirm with an authorized official prior to disclosure that the information at issue

is unclassified. Defendant also acknowledged that he had been advised that his "unauthorized

disclosure, unauthorized retention, or negligent handling of classified information . . . could cause

damage or irreparable injury to the United States or could be used to the advantage of a foreign

nation." Finally, defendant acknowledged that he had been advised of the potential penalties for

unauthorized disclosure of classified information, including "termination of any security clearances

I hold, removal from any position of special confidence and trust requiring such clearances, or the

termination of my employment . . . ," and potential prosecution under various criminal statutes.

       Rules 401 and 402 of the Federal Rules of Evidence generally require the admission of

"relevant" evidence, which is evidence "having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than would be

without the evidence." The nondisclosure agreements executed by defendant tend to establish that

defendant undoubtedly fully understood the serious obligations imposed by the nondisclosure

agreements ­ and the severe potential consequences of violating them. Given other evidence that

will establish that defendant was also aware at the time he made the charged false statements that

Ms. Wilson's employment may have been classified, and that the FBI and grand jury were


                                                 4



     Case 1:05-cr-00394-RBW             Document 253         Filed 01/25/2007       Page 5 of 7



investigating possible crimes arising from the disclosure of Ms. Wilson's CIA employment to

reporters, the nondisclosure agreements are directly relevant to the issue of whether defendant lied

intentionally about his role in receiving and disseminating information concerning Ms. Wilson's

employment. Thus, the agreements should be admitted.

       The relevance of the nondisclosure agreements is not undermined by the fact that defendant

has not been charged with disclosing classified information or violating the agreements. At the time

defendant made the charged false statements, he knew that he had disclosed to reporter Miller, and

confirmed to reporter Cooper, that Ms. Wilson worked for the CIA. Defendant's awareness that

these disclosures could constitute violations of the nondisclosure agreements he had executed, and

the potential consequences of violating those agreements, is directly relevant to the most important

issue before the jury in this case ­ defendant's state of mind at the time of the charged false

statements. See generally, United States v. Safavian, 435 F.Supp.2d 36, 46 (D.D.C. 2006)(district

court allowed the government to introduce e-mails related to public official's efforts on behalf of

private parties, not to prove the official's actual abuse of his government employment or acceptance

of bribes but, rather, to prove his motive to lie when speaking to investigating agents). Consistent

with the position the government has taken prior to, and during trial, the government has no

objection to a limiting instruction stating that the nondisclosure agreements are to be considered only

with respect to defendant's state of mind, and not as an allegation that the defendant in fact disclosed

classified information in violation of the agreements.




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     Case 1:05-cr-00394-RBW           Document 253        Filed 01/25/2007        Page 6 of 7



                                         CONCLUSION

       For all of the foregoing reasons, the government respectfully requests that it be permitted to

introduce Government Exhibits 5A through 5F into evidence for the limited purpose of establishing

defendant's state of mind at the time of the charged offenses.

                                                     Respectfully submitted,

                                                            /s/
                                                     PATRICK J. FITZGERALD
                                                     Special Counsel

                                                     Debra Riggs Bonamici
                                                     Kathleen M. Kedian
                                                     Peter R. Zeidenberg
                                                     Deputy Special Counsels

                                                     Office of the Special Counsel
                                                     U.S. Department of Justice
                                                     1400 New York Ave., N.W.
                                                     Washington, D.C. 20530
                                                     202-514-1187

Dated: January 25, 2007




                                                 6



     Case 1:05-cr-00394-RBW           Document 253        Filed 01/25/2007       Page 7 of 7



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 25th day of January 2007, I caused true and

correct copies of the foregoing to be served on the following parties by electronic mail:



                          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
                                                             1400 New York Ave., N.W.
                                                             Washington, D.C. 20530
                                                             202-514-1187

                                                             By:      /s/
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel
Dated: January 25, 2007


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