No Easy Answers

Tuesday, January 23, 2007

Government Response to Dow Jones 12/20/06 Motion to Unseal

Transcribed by hand, mostly. The OCR attempt was really feeble on this one, being a scan of a photocopy, etc.

No surprises in the opinion - the government is willing to release whatever becomes public via court proceedings, not release material just because the parties have talked about it or news accounts have surfaced, and urges that the Motion to Unseal be dismissed or held in abeyance until after the conclusion of the Libby trial.

There is no statement in this pleading that "this investigation is ongoing."


In re Grand Jury Subpoenas, Judith Miller   :  Case Nos. 04-3138, 04-3139 and
In re Grand Jury Subpoenas, Matthew Cooper  :  04-3140
In re Grand Jury Subpoenas, Time, Inc.      :


    The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special Counsel, respectfully submits its response to the motion of amicus curiae Dow Jones and the Associated Press to unseal additional parts of the redacted portion of the Court's opinion issued on February 15, 2005 and of the ex parte affidavits of the Special Counsel dated August 27, 2004 and September 27, 2004. As set forth below and in the sealed ex parte affidavit accompanying this response, the Special Counsel requests that this Court deny the motion without prejudice to a renewed motion to unseal filed after the completion of the trial in the district court in United States v. Libby, which commenced January 16, 2007. 1 In sum, the Special Counsel submits that disclosures of grand jury information made made in the course of trial of the Libby case may render some of the issues raised by the pending motion moot, and that disclosure of grand jury information while the case is on trial is best managed

1 In the alternative, this Court could hold be pending motion in abeyance pending completion of the Libby trial.

by Judge Walton. 2 In any event, this Court's (and the Special Counsel's) evaluation of what portions of the redacted opinion and the sealed affidavits still require protection under the rule of grand jury secrecy is best made after the completion of the Libby trial. There is no prejudice to deferring any further unsealing until the trial has run its course. Awaiting completion of the trial will avoid piecemeal consideration of the issues.


    The consolidated appeals in this case arose from civil contempt proceedings conducted during an ongoing federal grand jury investigation concerning alleged leaks to reporters of purportedly classified information by one or more government officials. New York Time reporter Judith Miller, Time Magazine reporter Matthew Cooper, and Cooper's employer, Time, Inc., Challenged grand jury subpoenas issued to them, claiming that a reporter's privilege relieved them of their obligation to provide testimony or documents in response to the subpoenas. The district court rejected the reporters' claims and, when the reporters refused to testify despite the court's unfavorable rulings, held them in civil contempt of court.

    Although the government took the position in the district court that it was not legally required to make any factual showing prior to demanding compliance with the subpoenas,

2 In the Libby case, the district court has overseen extensive pre-trial proceedings pertaining to discovery and has entered protective orders in the course of those proceedings as well as orders establishing procedures for daily release of trial exhibits to the media. The government has complied with its discovery obligations, including under Rule 16, the Jencks Act and Brady.


in order to assure the court that the subpoenas were appropriate, the government submitted, ex parte and under seal, detailed descriptions of the progress of the investigation which included specific references to grand jury witness testimony and materials identified as "classified," and an extensive description of the strategy and direction of the investigation. Likewise, in appeal, in order to maintain the confidentiality of the sealed materials and the integrity of the ongoing investigation, the government provided its ex parte submissions to this Court ex parte and under seal.

    On February 15, 2005, a panel of this Court affirmed the judgements of the district court, with tall three members of the panel voting to affirm. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir. 2005). Judge Tatel wrote a separate opinion in which he set forth a detailed analysis of the evidence contained in the Special Counsel's ex parte submissions to explain his conclusion that the information sought by the subpoenas was "both critical and unobtainable from any other source," and that, thus, and conceivable privilege was overcome. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d at 989-91 (Tatel, J., concurring). The other two members of the panel concurred in this portion of Judge Tatel's opinion. Id at 973 (Sentelle, J., Opinion for the Court)(stating that "[a]ll further believe, for the reasons set forth in the separate opinion by Judge Tatel, that if such a privilege applies here, it has been overcome.") The Court redacted those portions of Judge Tatel's opinion that referred to classified and grand jury information, and the publicly- available opinion notes these redactions. Id at 1002. The redacted portions of Judge Tatel's


separate opinion (the "redacted pages") were filed under seal. This procedure facilitated review by the Supreme Court without compromising classified information or grand jury material.

    This Court denied the reporters' petitions for rehearing on April 19, 2005. The reporters' petitions for certiorari were denied on June 27, 2005

    On October 28, 2005, the grand jury returned a five-count indictment charging I. Lewis :Scooter" Libby with obstruction of justice, perjury, and making false statements to federal investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001. The trial in that case commenced January 16, 2007.

    As the Court is aware, on November 2, 20005, Dow Jones made its initial motion to unseal the redacted portions of the Court's opinion of February 15, 2005. The government submitted a response and a sealed ex parte affidavit evaluating the redacted portions of the Court's opinion and, at the Court's direction, the two sealed ex parte affidavits of the Special Counsel. The Special Counsel did not object to disclosure of portions of the Court's redacted opinion, nor to disclosure of portions of one of the sealed affidavits.

    On February 6, 2006, this Court issued an opinion expressing its agreement with the Special Counsel's analysis and ordered portions of the redacted opinion published and docketed a redacted version of the Special Counsel's affidavit of August 27, 2004. In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1128 (D.C.Cir. 2006)> In its decision, this Court stated:


But just as some parts of the record may now be made public, others must remain secret. After reviewing the special counsel's submissions, we agree that some information in the eight pages and the special counsel's affidavits unquestionably remains grand jury material that Rule 6(e) obligates us to maintain under seal. Its publication at this juncture could identify witnesses, reveal be substance of their testimony and -- worse still -- damage the reputations of individuals who may never be charged with crimes.

Id. at 1141.

On December 20, 2006, the amici curiae filed the pending motion to unseal, arguing that events subsequent to the Court's opinion on the first motion to unseal now require that the issue be revisited. The motion focuses on two subsequent events. Citing press reports from June, July and September 2006, the motion suggests that because several individuals have made public statements concerning their involvement in the investigation that this Court should now reconsider its ruling that certain portions of the redacted opinion and the Special Counsel's affidavits are no longer protected by Rule 6(e). Motion at 5-6. For the reasons stated in this response and the accompanying affidavit, the Special Counsel submits that events to date do not justify lifting the protection of Rule 6(e) as to most of the currently redacted material, 3 but that disclosures necessitated by the Libby trial may justify disclosure

3 Beginning before the return of the indictment and continuing through the present Special Counsel has arranged to have documents obtained and generated during the course of the investigation, including grand jury transcripts, reviewed by the appropriate agencies for the purpose of identifying classified information and of assessing whether relevant documents may be declassified, with a view toward making such documents available to defendant in discovery, and to facilitate the use of such documents in public filings and proceedings. As of this date, the presence of classified information no longer provides a reason for maintaining the secrecy of the redacted pages or the sealed portions of the affidavits.


of some materials and that it would be inefficient and imprudent for this Court to review all of the sealed material, possibly releasing some during trial, and then likely have to revisit the issue again in light of disclosures at trial.

    The pending motion seeks disclosure of additional grand jury materials so "the public will gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters. . . ." Motion at 2. The motion asserts that there is public interest in the arguments and evidence presented by the Special Counsel in the contempt proceedings because "the public learned that the Special Counsel's pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's name to Robert Novak, the columnist who first published it." Motion at 1. For the reasons discussed below, the Special Counsel submits that the sated interest in disclosure of the materials does not compel this Court to consider the issue during, rather than after, the Libby trial.


I. Applicable Law

    There is no dispute as to the governing legal principles set forth by this Court in its decision of February 4, 2006. In re: Grand Jury Subpoena, 438 F.3d 1138, 1139-40. Noting "our criminal justice system's longstanding commitment to grand jury secrecy," this Court canvassed the justifications for grand jury secrecy advanced by the Supreme Court in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). 438 F.3d


at 1139-1140. Among those justifications are protecting the ability of the grand jury to obtain full and complete cooperation from witnesses and assuring that persons who are under suspicion but ultimately not charged by the grand jury will not be faced with public ridicule and embarrassment. Id. Accordingly, this Court has stated that grand jury secrecy extends to the identities of witnesses, the substance of testimony, and the strategy ad direction of the investigation. Id. at 1140.

    The Court went on to note that "the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy. . . . " 438 F.3d at 1141. Of course, "[t]he interest in grand jury secrecy may remain high, even after the termination of the grand jury's work, if the grand jury has terminated without returning an indictment against the persons who were investigated." Beale, Bryson, Felman & Elston, Grand Jury Law and Practice § 5:12 (2d ed. 2005). The same principle holds true where an indictment is returned against one or more subjects of an investigation, but not others. In addition, when a grand jury investigation is concluded, whether "all related criminal actions have terminated" is a factor to be considered in evaluating whether disclosure is appropriate. Id. ("the interest in grand jury secrecy may be substantial during the period of time between indictment and trial") 4 This, although concerns about grand jury secrecy may be lessened after the grand jury has finished its work, those concerns remain weighty. As the Supreme Court put it in Douglas

4 Of course, grand jury material is routinely disclosed at criminal trials as witnesses publicly repeat testimony they gave to the grand jury, prior grand jury testimony is used to impeach, or upon some other showing of particularized need. Grand Jury Law and Practice § 5:l2.



[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties.

441 U.S. at 222.

    As this Court noted in its earlier opinion in this case, Rule 6(e) required secrecy only "to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." 438 F.3d at 1140. This rule "reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public." Id. That said, this Court has also stated that "Rule 6(e) does not create a type of secrecy which is waived once public disclosure is made." Id. quoting Barry v. United States, 740 F.Supp. 888, 891 (D.D.C 1990). The question becomes whether "information is sufficiently widely known that it has lost its character as Rule 6(e) material." Id. quoting In re North, 16 F.3d 1234, 1245 (D.C.Cir. 1994). Of course, it is vital to focus on what "information" is at issue. This Court has noted that the information such as the identity of a witness may become a matter of public record, while "particular items, documents, or testimony" before the grand jury are not. In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C.Cir. 1998).

Finally, consistent with Fed.R.Crim.P. 6(e) and the interests that underlie grand jury


secrecy, this Court has recognized that there is no First Amendment right to access to grand jury proceedings. E.g., In re Motions of Dow Jones & Co., 142 F.3d at 499.

II. The Motion Should be Denied Without Prejudice to Renewing the Motion After the Libby Trial.

    The Special Counsel's primary reason for asking this Court to deny the pending motion without prejudice is practical: The evaluation of what grand jury information "is sufficiently widely known that it has lost its character as grand jury material" will be altered by the disclosures made in the course of the Libby trial. As set forth in the accompanying affidavit, the Special Counsel is confident that certain grand jury material will be disclosed during the course of the criminal trial. However, the extent of disclosures may vary substantially depending on what witnesses are called by the defense, what testimony and evidence is offered by the defense, and how the district court rules concerning the admissibility of the evidence. It would be highly inefficient to undertake an analysis of further disclosures based on the pre-trial record, only to have to revisit the matter after the trial.

    Furthermore, the Special Counsel submits, based on the pre-trial record, including the press reports cited by the amicus curiae, that very few, if any, additional portions of the redacted opinion and the sealed affidavits have lost their character as grand jury material. 5

5 Central to the movants' theory of why there is significant public interest in disclosure of the facts presented to the Court by the Special Counsel concerning the need for the testimony of the reporters in question is for the assertion that "the public learned that the Special Counsel's pursuit of these reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's identity to Robert Novak, the columnist who had first published it." Motion at 1. That


Self-identification by a former subject of a grand jury investigation or public statements of a grand jury witness about his or her testimony do not in and of themselves warrant release of grand jury information. AS discussed above, grand jury secrecy is not subject to waiver by witnesses who are not under an obligation of secrecy. Public revelations by persons about their involvement in a grand jury investigation, even the disclosure of some details, does not eliminate the protections of Rule 6(e), especially for persons under suspicion but not charged with a crime.

    Even if events since this Court's February 6, 2006 order justified some additional disclosures, this Court is not compelled to proceed in a piecemeal fashion, releasing some information during the ongoing trial and revisiting the issue post-trial. The "matter of great public importance" cited by movants is the need to "allow the public to gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters . . ." Motion at 2. The two "significant events" cited in the pending motion occurred approximately three months and six months before the motion was filed. Obviously, information pertinent to the necessity of compelling the testimony of two reporters will be disclosed at trial, and there is certainly no reason why this court must partially address the motion now rather that adopt the more efficient course of

assertion ignores the scope of Special Counsel's investigation was not limited to the leak to Mr. Novak, a fact that is a matter of public record. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 966-67 (D.C.Cir. 2005)(Sentelle, J., Opinion for the Court): Id. at 1001 (Tatel, J., concurring). Indeed, in response to the initial motion of Dow Jones to unseal, the Special Counsel agreed to the disclosure of paragraph 6 of his affidavit dated August 27, 2004, which explained that "the investigation of unauthorized disclosures is not limited to Novak."


awaiting the completion of the criminal trial and addressing the issue then if the motion is renewed.


    For all of the foregoing reasons, the Special Counsel respectfully requests that the motion of Dow Jones and The Associated Press be denied without prejudice. In the alternative, the Special Counsel requests that the motion be held in abeyance pending the completion of the ongoing trial in the district court.

Respectfully submitted

Special Counsel

Deputy Special Counsels

Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604


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