No Easy Answers

Tuesday, January 09, 2007

Wilson Reply and Court Rejection: Motion to Quash [Docs 5 and 6]

      Case 1:06-mc-00560-RBW            Document 5        Filed 01/09/2007       Page 1 of 4

                       FOR THE DISTRICT OF COLUMBIA
UNITED STATES                          )
      v.                               )     Misc. No. 06-560 (RBW)
I. LEWIS LIBBY                         )

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

       Former Ambassador Joseph C. Wilson, IV, through undersigned counsel, respectfully

submits this reply to I. Lewis Libby's response to Mr. Wilson's Motion to Quash Subpoena ("Def.



       Although the indictment in this case does, indeed, mention former Ambassador Joseph C.

Wilson IV and his public criticism of the Bush administration, the charges against Mr. Libby do

not revolve around any of Mr. Wilson's statements. Rather, as this Court is well aware, it is Mr.

Libby's statements ­ made in the course of a criminal grand jury proceeding ­ that are at issue.

Mr. Wilson's testimony would not be relevant or material to the defense because he can shed no

light on Mr. Libby's apparent defense to the pending charges and the defendant has proffered no

evidence to refute this claim.

       First, the cases cited by the defendant all involve efforts to quash subpoenas on grounds

other than relevance. In Irons v. U.S., 74 F.3d 1262, 1264 (D.C. Cir. 1995), a fact witness sought

to quash a civil deposition subpoena on the ground that forcing him to appear for no more than the

$40 per day witness fee ­ well below the witness's general fee ­ constituted an undue burden. The

      Case 1:06-mc-00560-RBW             Document 5        Filed 01/09/2007        Page 2 of 4

movant never argued that his testimony was irrelevant. In fact, the Irons court took heed of an

illustration in the notes of the 1991 amendment to Rule 45(c)(1), which reads: "Illustratively, it

might be unduly burdensome to compel an adversary to attend trial as a witness if the adversary is

known to have no personal knowledge of matters in dispute, especially if the adversary would be

required to incur substantial travel burdens." Id. (quoting Fed. Rule Civ. P. 45, advisory

committee's note (1991)(subdivision (c)).

       Defendant has also cited Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762

(D.C. Cir. 1965) and Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968). Westinghouse

involved a subpoena duces tecum directing the production of documents relevant to the trial of

certain treble-damage antitrust litigation, and Freeman involved a subpoena duces tecum issued by

a bankrupt company's trustee for documents under the control of the Secretary of Agriculture to

determine whether the bankrupt company had a cause of action for the losses it had suffered on the

Commodities Exchange. In neither case was the relevance of the subpoenaed material disputed.

In fact, the Westinghouse court noted that under the Rules of Civil Procedure, as long as

subpoenaed documents, such as those sought by the trustee, "are relevant to the subject matter of

the proceeding for which their production is sought, the subpoena should be enforced on a showing

of good cause . . ." 351 F.2d at 1334 (citation omitted). In contrast, in the matter before the Court,

Mr. Wilson contends that his testimony would not be relevant in any way to Mr. Libby's defense.

       The one criminal case cited by defendant is similarly inapposite. In Washington v.

Clemmer, a criminal defendant sought to have a Commissioner subpoena a complaining witness in

a rape prosecution to testify at a preliminary hearing, arguing that she would not positively identify

him as the aider and abetter of the person who raped her and that, therefore, her testimony was

material to his defense. 339 F.2d 725, 726 (D.C. Cir. 1964). The Washington court specifically


      Case 1:06-mc-00560-RBW              Document 5        Filed 01/09/2007     Page 3 of 4

refused to decide whether Rule 17(b) limited the accused to witnesses who would testify in his

favor, as that averment had already been made. Id. at 728.

       Second, although Mr. Wilson has the burden of arguing that his testimony would not be

relevant or material to the defense, the defendant must provide some "plausible explanation" of the

assistance he would receive from a witness to compel his appearance. United States v. Valenzuela-

Bernal, 458 U.S. 858, 871 (1982). This, defendant has failed to do, offering only the vague

assertion that Mr. Wilson "had a relationship with one of the government's key witnesses in the

case and was in contact with that witness regarding certain issues key to the indictment during the

relevant period," and that Mr. Wilson spoke with a number of journalists. Def. Response at 1-2.

       The charges against defendant have little or nothing to do with Mr. Wilson. Merely having

spoken with potential government witnesses hardly means that Mr. Wilson is in a position to offer

testimony that would demonstrate that Mr. Libby did not, in fact, make false statements to federal

agents, perjure himself before the grand jury, or obstruct justice.

       Finally, defendant's claim that he is not seeking to use Mr. Wilson's testimony as a

substitute for civil discovery is unpersuasive. Defendant refers to the "absurdity" of Mr. Wilson's

charge to the contrary, claiming that Mr. Libby has "never pressed for discovery in the civil case,

though he had a right to do so, but instead fil[ed] a motion to dismiss all claims (which remains

pending)." Def. Response at 4. Indeed, Mr. Libby could have sought discovery in the civil case,

but pursuant to the Rules of Civil Procedure, he could not have done so while filing a motion to

dismiss. Through the use of this subpoena, however, Mr. Libby seeks to do indirectly what he

cannot do directly, gain Mr. Wilson's testimony for advantage in the civil case. In essence, Mr.

Libby wants to have his cake and eat it too.


     Case 1:06-mc-00560-RBW            Document 5      Filed 01/09/2007      Page 4 of 4


       For the foregoing reasons, non-party movant Joseph C. Wilson, IV respectfully requests

that the subpoena issued to him by Defendant be quashed.

Dated: January 9, 2007                      Respectfully submitted,

                                            By: /s/ Melanie Sloan
                                            Melanie Sloan (D.C. Bar No. 434584)
                                            Anne Weismann (D.C. Bar No. 298190)
                                            Citizens for Responsibility
                                              and Ethics in Washington
                                            1400 Eye Street, N.W.
                                            Suite 450
                                            Washington, D.C. 20005
                                            (202) 408-5565

                                            Erwin Chemerinsky (D.C. Bar No. 289330)
                                            Duke University School of Law
                                            Science Drive and Towerview Road
                                            Durham, NC 27708-0360
                                            (919) 613-7173

                                            Counsel for Non-party Movant Joseph C. Wilson, IV



   Case 1:06-mc-00560-RBW        Document 6        Filed 01/09/2007        Page 1 of 2

                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
    v.                               )  Misc. No. 06-560 (RBW)
I. LEWIS LIBBY,                      )
                  Defendant.         )
____________________________________ )
JOSEPH C. WILSON IV,                 )
                  Movant.            )
____________________________________ )


         Currently before the Court is the Motion of Non-Party Joseph C. Wilson IV to Quash

Subpoena and Supporting Memorandum of Point and Authorities ("Mot."). ^1 In this motion,

Ambassador Wilson asserts that the subpoena served on him should be quashed because his

testimony would not be relevant or material to the defense. Mot. at 4. Because it is unclear

whether Ambassador Wilson will be called as a witness, see I. Lewis Libby's Response to Joseph

C. Wilson's Motion to Quash Subpoena ("Response") at 3, and it is unknown exactly what

evidence will be presented during the trial in this matter, it is impossible to determine whether

Ambassador Wilson's testimony will be relevant. Moreover, since Ambassador Wilson has yet

to be actually called as a witness, he has not been inconvenienced, nor can he establish at this

time that the subpoena is unreasonable or oppressive. Accordingly, his motion is premature.

Should Ambassador Wilson actually be called to testify, he will be provided advance notice of

the need for his testimony, id., after which he can renew this motion if it is appropriate to do so.

           This Court anticipated hearing argument on this motion on January 10, 2007 at 12:30. 
However, after reviewing the papers filed in connection with this motion, the Court has concluded 
that oral argument is unnecessary.

      Case 1:06-mc-00560-RBW       Document 6      Filed 01/09/2007   Page 2 of 2

Accordingly, it is hereby

       ORDERED that the Motion of Non-Party Joseph C. Wilson IV to Quash Subpoena is


       SO ORDERED this 9th day of January, 2007.

                                                   REGGIE B. WALTON
                                                  United States District Judge

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