No Easy Answers

Transcribed by hand.

Omitted are Certificates of Service and the Proposed Order denying Joseph C. Wilson's Motion to Quash the December 13, 2006 subpoena served on him by Libby.

Case 1:06-mc-00560-RBW    Document 4    Filed 01/03/07    Page 1 of 9

I. LEWIS LIBBY'S RESPONSE TO JOSEPH C. WILSON'S
MOTION TO QUASH SUBPOENA

   I. Lewis Libby, through his counsel, respectfully submits this response to Joseph C. Wilson's Motion to Quash Subpoena ("Motion").

   As this Court is aware, the indictment in this case is replete with mentions of former Ambassador Wilson. His public criticism of the Administration, in particular the Office of the Vice President, triggered a series of events leading to the charges against Mr. Libby. Mr. Wilson accused the OVP of knowing about, but ignoring, conclusions he claims to have reported from a fact-finding mission he took to Niger on behalf of the CIA in March 2002. Mr. Libby and other potential trial witnesses sought to respond to Mr. Wilson's accusations, which they know to be false and misleading. The nature of that response, and what particular facts it did and did not include, will be key issues at trial.

   Moreover, recent disclosures by the government show that Mr. Wilson had a relationship with one of the government's key witnesses in the case and was in contact with that witness

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regarding certain issues key to the indictment during the relevant period. Further, Mr. Wilson spoke to numerous reporters during this period, many of whom will testify at trial. He spoke to a co-author or a Time magazine article by government witness Matthew Cooper which will be offered by the government at trial. He appeared on NBC' Meet the Press on July 6, 2003, which was hosted by Andrea Mitchell in Tim Russert's absence. His name and telephone number appear in the notes of government witness Judith Miller. He spoke to Walter Pincus on July 12, in a conversation described by Mr. Wilson in his book, "The Politics of Truth: Inside the Lies that Led to War and Betrayed My Wife's CIA Identity" (Carroll & Graf 2004). He spoke to Robert Novak both before and after publication of the column revealing his wife's identity.

   It is fair to say that with the possible exception of Mr. Libby himself, Mr. Wilson's name will be mentioned in this trial more than that of any other person.

   Given these facts, Mr. Libby has taken the precaution of issuing a trial subpoena in the event that Mr. Wilson's testimony is needed by defense at trial. Mr. Wilson's claim that by doing so, Mr. Libby is harassing him or seeking to use a criminal trial subpoena to gain an advantage in a civil case is, in a word, preposterous. The Motion to Quash should be denied.

ARGUMENT

   One who seeks prior to trial to quash a subpoena for testimony bears a heavy burden. See, e.g., Irons v. Karceski, 74 F.3d 1262, 1264 (D.C. Cir. 1995)("The party seeking to quash a subpoena bears a heavy burden"); Freeman v. Seligson, 405 F.2d 1326, 1337 (D.C. Cir. 1968)("[T]he burden of proving that a subpoena . . . is oppressive is on the party moving for relief on this ground, and . . . the burden is particularly heavy . . . . ")(citation and internal quotation marks omitted); Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 766 (D.C.Cir. 1965)

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("The burden is particularly heavy to support a motion to quash . . ."); see generally Fed. R. Civ. P. 17, advisory committee notes (1944)(noting that Fed. R. Civ. P. 45 and Fed. R. Crim. P. 17 are "substantially the same"). Where, as here, a criminal defendant's Sixth Amendment right to compulsory process is implicated, a court should be especially reluctant to quash, and should do so only where a movant clearly demonstrates that circumstances render a subpoena unreasonable or oppressive. Washington v. Clemmer, 339 F.2d 725, 727 (D.C. Cir. 1964)(acknowledging that a Rule 17 testimony subpoena can be quashed only if it is "unreasonable or oppressive"). ¹

   Mr. Wilson has set forth no fact, or set of facts, that can sustain that heavy burden here. Far from it. For one thing, as the defense has made clear to Mr. Wilson and his counsel all along, Mr. Wilson may not even be called to testify, therefore, in the end, he may be subject to no inconvenience at all. Furthermore, in the event he is needed at trial, the defense has made every effort to accommodate Mr. Wilson's schedule. Although subpoenaed for January 16, Mr. Libby has excused Mr. Wilson's appearance on that date and agreed to provide him with two-day's advance notice of his need for Mr. Wilson's testimony. See United States v. Snyder, 413 F.2d 288-89 (9th Cir. 1969)(noting that an arrangement whereby a witness remained "on call" even though his subpoena stated an exact date served the "convenience" of the witness and/or his

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¹ Citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d. 1193 (1982), Mr. Wilson suggests that this Court must quash Mr. Libby's subpoena unless the defense can show that Mr. Wilson's testimony is "relevant and material, and ... vital to the defense." (Motion at 3). That standard, however, applies at the appellate stage only to determine whether a trial court's quashing of a subpoena violated a criminal defendant's Sixth Amendment right to compulsory process. See Valenzuela-Bernal, 458 U.S. at 867, 102 S.Ct. at 3446 ("[T]his court found a violation of [the Compulsory Process] Clause of the Sixth Amendment when the defendant was arbitrarily deprived of testimony [that] would have been relevant and material . . . and vital to the defense.")(third and fourth alterations in the original)(internal quotation marks omitted). Mr. Wilson thus fallaciously attempts to convince this Court to shift the burden of proof for this Motion. As discussed in the above text, Mr. Wilson, as the movant, bears the heavy burden of convincing this Court to quash the subpoena in the first instance

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attorney.) Mr. Libby has also suggested that Mr. Wilson provide a calendar of his commitments for the last week in January and the first week of February so that his testimony can be scheduled at a convenient time.

   Finally, Mr. Wilson's suggestion that Mr. Libby is seeking his testimony simply to advantage Mr. Libby in their pending civil litigation is wholly unfounded. (Motion at 5). Long before Mr. Wilson filed his civil suit, the defense informed the court that it may very well need to call Mr. Wilson as a witness (See February 24, 2006 Tr. at 85). The absurdity of Mr. Wilson's charge is further underscored by Mr. Libby's having never pressed for discovery in the civil case, though he has a right to do so, but instead filing a motion to dismiss all claims (which remains pending). Simply put, no evidence supports Mr. Wilson's baseless contention that his trial testimony is sought to advance Mr. Libby's civil defense.

   Though Mr. Wilson struggles to suggest otherwise, courts and commentators have recognized that where, as here, the subject of a subpoena has an obvious nexus to the charges in the indictment, the wise course is to leave a subpoena in place. As Judge Weinfeld explained,

If questions are objected to, a ruling as to relevancy or materiality can be made within the framework of the charges contained in the indictment and against the background of the evidence in the case. To issue such a ruling in advance of trial and to hold that the witness'[s] testimony is not material and hence the subpoena should be vacated, would deprive the defendant of his constitutional right to compulsory process under the Sixth Amendment and his right to a fair trial under the due process clause of the Fifth Amendment.

United States v. Seeger, 180 F.Supp. 467, 468 (S.D.N.Y. 1960)(footnote omitted); see also 2 C. Wright, Federal Practice and Procedure Criminal § 273 at 236-37 & n.13 (3d ed. 1995)(identifying examples where courts have granted motions to quash in certain circumstances, but noting that "the better practice in ordinary cases is to require the witness to appear")(footnotes omitted)(citing Seeger, 180 F.Supp. at 468)).

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   Indeed, to quash the subpoena at this stage would create the risk that Mr. Wilson, who we are informed travels extensively, would not be available if and when his testimony is needed. That, in turn, would either necessitate a delay in proceedings, or worse, deprive Mr. Libby of Mr. Wilson's testimony and thus his right to compulsory process for obtaining witnesses in his defense.

   For the foregoing reasons, Mr. Libby requests that the Court leave the subpoena in place so that Mr. Libby can, if needed, call Mr. Wilson as a witness at trial. Mr. Libby further submits that oral argument is not necessary and should not be heard on this matter. As the Court is aware, shortly after filing the motion to quash, Mr. Wilson's counsel appeared on television to comment publicly about the merits of this case, thus putting in jeopardy Mr. Libby's ability to receive a fair trial. See United States v. Libby, Misc. No. 06-560 (D.D.C. Dec. 21, 2006)(order admonishing Mr. Wilson and his counsel against making extrajudicial statements to the press). In light of this prior conduct, the defense sees no need for, and substantial risk in, further airing these issues in a public forum.

CONCLUSION

   For these reasons, the Court should deny Movant's motion to quash.

January 3, 2007

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posted by cboldt  # 1/03/2007 01:26:00 PM