No Easy Answers

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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF Ano_RIcA }
}
v. } Cr. No. 05-394 {RBW}
}
I. LEWIS LIBBY, }
also known as "Scooter Libby," }
Defendant. }

I. LEWIS LIBBY'S RESPONSE TO THE GOVERNMENT'S MOTION INLIMINE TO
ADMIT NONDISCLOSURE AGREEMENTS EXECUTED BY DEFENDANT

As the Court knows, Mr. Libby has not been charged with diwlging classified
information in violation offederal law. Nor has he been accused ofbreaching the six
nondisclosure agreements he signed while serving as Chief of Staff and National Security
Advisor to the Vice President. Nevertheless, the government has asked this Court to admit the
executed nondisclosure agreements, arguing that these documents indicate Mr. Libby' s
awareness ofthe consequences of disclosing classified information without authorization and
thus are relevant to whether Mr. Libby had a motive to lie to the FBI and the grandjury. See
Government's Mot. i_z Limi_ze to Admit Nondisclosure Agreements Executed By Def. at 3-5 {_an.
25, 2007} {DM. 253} {"Mot."}.

The proffered evidence should be excluded under Fed. R. Evid. 401 and, in the
alternative, Fed. R. Evid. 403. As shown below, the documents are irrelevant because, as the
evidence in this case has shown and will continue to show, Mr. Libby has never had any reason
to believe that his conduct constituted a breach ofthe nondisclosure agreements. Even ifthe
documents did have some slight probative value {which they do not}, that value would be
completely outweighed by the unfair prejudice their admission would cause to Mr. Libby. The

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documents will inevitably encourage the jury to {l} speculate as to whether Mr. Libby did
diwlge classified information without authorization and {2} punish him on that basis.

ARGUMENT

In its motion, the government argues that "one ofthe grounds for defendant's motive to
lie was his awareness ofhis duty to safeguard classified information, and ofthe potential
consequences ofbreaching that duty, an awareness defendant obtained in part through one or
more 'security indoctrination[s]' concerning the nature and protection of classified information."
Mot. at 3. Asserting that the nondisclosure agreements signed by Mr. Libby during the course of
his employment constitute evidence that he received such "indoctrinations," the government
contends that the agreements are relevant to Mr. Libby's motive and are therefore admissible
under Rule 401. See id. at 3-4. In support, the government states that "other evidence . . . will
establish that defendant was . . . aware Qt the time he mQde the chQogedfQlse stQteme_zts that Ms.
Wilson's employment may have been classified." Mot. at 4 {emphasis added}.

At bottom, the government's relevance argument is that press coverage ofMs. Wilson's
status that appeared Qfteo Mr. Libby's alleged conversations with reporters caused Mr. Libby to
fear, retroactively, that those conversations had somehow violated the nondisclosure agreements
he had signed and therefore motivated him to perjure himselfto cover up what he had done. But,
even had Mr. Libby given any credence to aker-the-fact press accounts regarding Ms. Wilson's
status, there is - as the government conceded before the trial even began - no direct evidence
that Mr. Libby had any idea Qt the time those conversations occurred that Ms. Wilson's status
might be somehow protected. See Aff. ofPatrick _. Fitzgerald, Aug. 27, 2004. And Mr. Libby
certainly had no reason to think that the nondisclosure agreements erected some sort of strict
liability for inadvertent disclosures ofclassified information. To the contrary, the wording ofthe

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agreements and the federal regulations cited therein make clear that a person can be held liable
for a disclosure o_zly _there is a me_zs oeQ present at the time the disclosure occurs.
For example, "[a] party to the SF 3 12," one ofthe standard nondisclosure agreements
signed by Mr. Libby, "may be liable for disclosing 'classified information' only ifhe or she
k_zows 00 oeQso_zQbly shouldk_zow that . . . the marked or unmarked information is classified, or
meets the standards for classification and is in the process of a classification determination . . . ."
32 C.F.R. é 2003.20{h}{3} {emphasis added}. Similarly, each ofthe Sensitive Compartmented
Information {"SCI"} Nondisclosure Agreements signed by Mr. Libby forbade him from
diwlging material "marked" or "know[n] to be" classified, or "that [he would] have reason to
believe" might contain classified information. GX5B at li see Qlso GX5C at li GX5E at li
GX5F at l.'

The federal regulation governing the nondisclosure agreements does not make one liable
for revealing information one subseque_ztly leQo_zs may be clQss_ed. Rather, it is only one' s
knowledge at the time of disclosure that matters. Consequently, the nondisclosure agreements
would be relevant only ifthe government could show that Mr. Libby knew, or had reason to
know, or should have known, Qt the time ofhis co_zveosQtio_zs with oepooteos that information
about Ms. Wilson's employment at the CIA was classified. But as the evidence presented by the
government has borne out, it simply cannot make this showing. Accordingly, the agreements
should be excluded as irrelevant.

Even ifthe nondisclosure agreements could be considered in any way relevant {and they
cannot}, their probative value is substantially outweighed by the danger ofunfair prejudice and a
conhsion ofthe issues. As all parties are well aware, Mr. Libby is not on trial for disclosing
' The Special Access Program Nondisclosure Agreement executed by Mr. Libby contains nearly
identical language. See GX5D at l.

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classified information {nor is any other person who discussed Ms. Wilson with reporters}. In
fact, this Court has denied Mr. Libby discovery regarding Ms. Wilson's status because "Ms.
Wilson's documented status as an employee ofthe CIA . . . is simply immaterial." Mem.
Opinion at 6 n.3 {_une 2, 2006} {DM.l 12}.

Yet, introduction ofthe nondisclosure agreements would inevitably cause the jury to
speculate whether Mr. Libby did in fact violate those agreements through conversations in which
he allegedly discussed Ms. Wilson's CIA employment. That inevitable effect would be
fundamentally unfair to Mr. Libby's defense. (Tf U_zitedStQtes v. (Thoisto, 614 F.2d 486, 492
{5th Cir. 1980} {remanding for retrial on the relevant counts aker holding that the government's
introduction of evidence concerning defendant's violation of a regulatory statute in an effort to
prove violation of a criminal statute "impermissibly infected the very purpose for which the trial
was being conducted"}. The government itself has acknowledged that it would be problematic to
"create an atmosphere in which the juryjust assumed that [Ms. Wilson] was classified or
covert." 12/19/06 Tr. at 38. That is exactly what the offered evidence threatens to do and that is
exactly why it should not be admitted.

The danger ofunfair prejudice is particularly high with respect to GX5B, GX5C, GX5D,
GX5E, and GX5F. Those nondisclosure agreements relate to discrete compartments oftop
secret information to which Mr. Libby was given access. But there is no evidence that any
information related to Ms. Wilson's employment at the CIA fell within one ofthose discrete
categories. Even the cursory summary ofMs. Wilson's employment history provided by the
CIA does not make such an assertion. The fact that these agreements address in particular the
disclosure oftop secret information renders them both less relevant {to the extent that any ofthe
agreements are relevant} and mooe prejudicial than the standard nondisclosure agreement {SF

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3 12} executed by Mr. Libby - less relevant because there has been no indication that Ms.
Wilson's status was top secret, and more prejudicial because top secret information is ofthe
utmost importance to our national security. Any invitation to the jury to consider whether Mr.
Libby divulged top secret information would necessarily be inflammatory and unfairly
prejudicial to his defense.

As noted above, the defense has been denied any meaningful discovery on the actual
nature ofMs. Wilson's status and thus any opportunity to rebut the implication that the
introduction ofthe nondisclosure agreements would inevitably create. Because such ungrounded
speculation is unfairly prejudicial to Mr. Libby, all ofthe nondisclosure agreements should be
excluded.

That the government is attempting to prejudice Mr. Libby unfairly by introducing these
agreements is evident by their number. Putting aside the issue ofwhether any ofthe agreements
are relevant and admissible {and none are}, no reason exists to flood the jury with a halfdozen
single-spaced forms except the hope that their cumulative effect will signal that Mr. Libby
violated his obligation not to disclose classified information. Not only is it unnecessary to
introduce six nondisclosure agreements to demonstrate motive, the defense is willing to resolve
this issue by stipulating that, in the course ofhis job, Mr. Libby was under an obligation not to
disclose classified information knowingly and intentionally.

The defense also notes that the motive theory laid out in the government's motion i_z
limi_ze is only now, in the midst oftrial, being sprung on the defense. Previously, the
government stated that Mr. Libby lied about his conversations with reporters out of concern that
he would be fired because "the White House had publicly staked its credibility on there being no
White House involvement [in the public disclosure ofinformation about Ms. Wilson]."

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Government's Resp. to Def.'s Third Mot. to Compel Discovery at 26-28 {April 5, 2006} {DM.
80}. Perhaps realizing the weakness ofthat argument, the government now asserts that Mr.
Libby lied not to protect the White House from embarrassment, but to elude regulatory and
contractual liability. The lack of notice provided to the defense and its inability to explore and
seek discovery of information necessary to rehte the government's newfound motive theory is
yet another reason that the Court should exclude the offered evidence.

CONCLUSION

For the foregoing reasons, Mr. Libby respecthlly requests that the Court deny the
government's Motion.

Dated: January 29, 2007 Respecthlly Submitted,

posted by cboldt  # 1/30/2007 08:21:00 AM