No Easy Answers


Wednesday, February 07, 2007

Fitzgerald Memo Re: Accomodations to Russert [Doc 269]


     Case 1:05-cr-00394-RBW             Document 269         Filed 02/07/2007       Page 1 of 7



                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                                   :
UNITED STATES OF AMERICA
                                                   :
               v.                                  :   Cr. No 05-394 (RBW)
                                                   :
                                                   :
I. LEWIS LIBBY,
                                                   :
            a/k/a "Scooter Libby"

       GOVERNMENT'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S
         REQUEST FOR DISCLOSURE OF INFORMATION RELATING TO
       ACCOMMODATIONS PROVIDED TO MEDIA WITNESS TIM RUSSERT

       The United States of America, by and through Patrick J. Fitzgerald, Special Counsel, hereby

respectfully submits this memorandum in opposition to defendant's request for the production of

documents and information concerning communications between the government and counsel for

witness Tim Russert related to obtaining his testimony in the course of the grand jury investigation.

As demonstrated below, the defendant is not entitled to demand irrelevant details concerning the

discussions that preceded the taking of Mr. Russert's testimony.

                                          BACKGROUND

Anticipated Testimony of Government Witness Tim Russert

       As this Court is aware, the government plans to call NBC News correspondent Tim Russert

as a witness in its case-in-chief. The government anticipates that Mr. Russert will testify that, during

the week following the appearance of former Ambassador Joseph Wilson on NBC's "Meet the

Press," Mr. Russert received a telephone call from the defendant in which defendant complained

about statements made by MSNBC television host Chris Matthews on July 7 and 8, 2003. Mr.

Russert will testify that, during this conversation, neither he nor the defendant made any mention of

Valerie Plame Wilson or her employment at the CIA.



     Case 1:05-cr-00394-RBW           Document 269        Filed 02/07/2007      Page 2 of 7



Motion to Quash Subpoena

       In May 2004, pursuant to the Department of Justice Guidelines Regarding the Issuance of

Subpoenas to Members of the News Media, the government requested that Tim Russert voluntarily

cooperate by testifying before the grand jury. Mr. Russert, through counsel, sought to avoid

providing testimony in this matter, first by attempting to convince the Special Counsel that Mr.

Russert had nothing relevant to say because he had not been the recipient of any leak regarding Ms.

Wilson's employment, and then by filing a motion (under seal) to quash the grand jury subpoena

issued for his testimony. After Mr. Russert's motion was denied on July 21, 2004, the Special

Counsel and counsel for Mr. Russert agreed on a procedure pursuant to which Mr. Russert would

forego an appeal and provide testimony.

Mr. Russert's Grand Jury Testimony

       On August 7, 2004, Mr. Russert was interviewed under oath in a deposition. By agreement,

the deposition was conducted as if Mr. Russert were in the grand jury, with the exception that

counsel for Mr. Russert and NBC was permitted to be present in the room. The questioning of Mr.

Russert was limited to telephone conversation(s) between Mr. Libby and Mr. Russert on or about

July 10, 2003 (and any follow up conversations) which involved Mr. Libby complaining to Mr.

Russert in his capacity as NBC Bureau Chief about the on-the-air comments of another NBC

correspondent, including whether during that conversation Mr. Russert imparted information

concerning the employment of Ambassador Wilson's wife to Mr. Libby, or whether the employment

of Mr. Wilson's wife was otherwise discussed in the conversation.




                                                2



     Case 1:05-cr-00394-RBW           Document 269         Filed 02/07/2007       Page 3 of 7



Discovery

       The government provided defendant with extensive details regarding information obtained

from reporters during the course of the grand jury proceeding on February 2, 2006. This disclosure

included copies of correspondence between the Special Counsel and Mr. Russert's lawyers

concerning the scope of the testimony sought by the government and the manner in which Mr.

Russert's testimony would be taken. In addition, as part of its Jencks Act disclosures, the

government produced to the defendant (a) the report of the FBI interview of Mr. Russert,1 and (b)

the transcript of Mr. Russert's August 7, 2004 deposition. The government also obtained an order

unsealing the transcript of the oral argument on the motion to quash, and provided a copy of the

transcript to the defense. Finally, the government informed the defense by letter of the following

agreements reached between the Special Counsel and counsel for Mr. Russert: (a) the parties'

agreement that nothing said during the parties' negotiations would be reported by Mr. Russert in the

press, or argued by the government to constitute a waiver of any rights or privileges that could be

asserted by Mr. Russert in litigation over the subpoena; (b) the government's agreement that it would

refrain from arguing that Mr. Russert's statements to the FBI constituted a waiver for purposes of

the subpoena litigation; and (c) the government's agreement to schedule Mr. Russert's deposition

so that he could proceed with plans to cover the 2004 Democratic National Convention.

       The government has been informed that the defense is in possession of all of the public




       1
         As indicated in the Government's Memorandum in Opposition to Defendant's Request for
Disclosure of Information Related to Accommodations Provided to Media Witness Tim Russert,
notes taken during this interview have not been located, despite a diligent search.

                                                 3



     Case 1:05-cr-00394-RBW           Document 269        Filed 02/07/2007       Page 4 of 7



filings and orders in connection with Mr. Russert's motion to quash,2 but not the government's ex

parte submissions, which remain under seal. In addition to all of the following, the defense has

access to a substantial number of public statements by Mr. Russert. In sum, the government is in

possession of nothing to which the defendant is entitled under the Jencks Act, Brady, Giglio or Rule

16 that has not been provided to the defense.

       Nevertheless, in a letter dated February 3, 2007, defense counsel requested the following

additional details concerning communications between counsel for the government and counsel for

Mr. Russert:

       1.      Please inform us when the agreements described in your letter were reached
               and identify the persons involved in negotiating those agreements.

       2.      Were the agreements made in writing? If so, please provide those written materials.

       3.      What if anything was Chief Judge Hogan told about Mr. Russert's FBI Interview
               and/or the agreement that the government would not argue that the interview did not
               constitute a waiver of any rights or privileges asserted by Mr. Russert in his motion
               to quash?

               If there was any further information disclosed to Chief Judge Hogan, through ex
       4.
               parte filings or otherwise, concerning information received from Mr. Russert or
               regarding negotiations with Mr. Russert or NBC, please provide it as soon as
               possible.

In response, the government informed the defense that government counsel that Chief Judge Hogan

was indeed informed of the accommodations made with respect to the subpoena to Mr. Russert, and

that there were no formal written agreements between the government and Mr. Russert. Counsel

declined to provide the defense with any further details concerning communications between counsel

for the government and Mr. Russert.


        2
            Mr. Russert's motion was litigated jointly with a motion to quash by former Time
magazine reporter Matthew Cooper.

                                                 4



     Case 1:05-cr-00394-RBW           Document 269         Filed 02/07/2007       Page 5 of 7



                                          ARGUMENT

Defendant Has Received All Information Regarding the Circumstances Surrounding Mr.
Russert's Prior Testimony to Which He Is Entitled.

       The government has provided the defense with substantial discovery and, given the nature

of Mr. Russert's profession, there is a wealth of public information through which the defense may

search for cross-examination material. Nothing in the government's possession is inconsistent with

the prior testimony or statements made by Mr. Russert during the course of the grand jury

investigation, or in any way reflects the existence of any tacit agreements, incentives or benefits

beyond those provided as part of government counsel's efforts to "accommodate the interests of both

the grand jury and the media" as required by the DOJ Guidelines. While the government disputes

the notion that accommodations made to members of the news media are, as defense counsel has

suggested, "benefits" akin to concessions made for plea or immunity agreements, the government

nevertheless has disclosed all accommodations to the defense.

       Contrary to its suggestion, the defense is not entitled to a detailed accounting of which

members of the Special Counsel's Office were involved in discussions with Mr. Russert's counsel,

details concerning the substance of such conversations, or the various means by which such

discussions were, or were not, memorialized. Such information has no possible bearing on Mr.

Russert's credibility.

       In seeking statements by counsel for Ari Fleischer the defense previously relied on a district

court case from the Central District of California ­ United States v. Sudikoff, 36 F. Supp. 2d 1196

(C.D. Cal. 1999)(requiring the disclosure of notes of multiple proffer sessions with a witness that

"led to the leniency agreement"). Mr. Russert received no "leniency," and neither Sudikoff nor any



                                                 5



     Case 1:05-cr-00394-RBW            Document 269         Filed 02/07/2007       Page 6 of 7



other decision of which government counsel requires the government to provide the defense with

a description of every conversation between lawyers for the government and a reporter witness prior

to the witness's providing testimony for use in a grand jury investigation, irrespective of its

impeachment value.

       While the government strongly objects to the notion that the defense is entitled to anything

beyond what has already been provided to the defense, the government has provided the Court, in

a separate pleading, filed ex parte and under seal, an Affidavit of Patrick J. Fitzgerald which sets

forth a summary of relevant conversations with Mr. Russert's counsel.

                                         CONCLUSION

       For all of the foregoing reasons, the government respectfully requests that this Court rule that

the government has complied with its obligations of discovery with respect to witness Tim Russert.

                                                      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: February 5, 2007




                                                  6



     Case 1:05-cr-00394-RBW           Document 269        Filed 02/07/2007       Page 7 of 7



                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 5th day of February, 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: February 5, 2007


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