No Easy Answers

Wednesday, February 07, 2007

Fitzgerald Motion for CIPA Instruction [Doc 268]

     Case 1:05-cr-00394-RBW            Document 268         Filed 02/07/2007       Page 1 of 4

                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                       )
                                               )       CR. NO 05-394 (RBW)
               v.                              )
I. LEWIS LIBBY,                                )
      also known as "Scooter Libby"            )



COUNSEL, respectfully submits the following proposed jury instruction regarding classified



        During the defense Opening Statement, defense counsel argued that:

        I am not even permitted to talk about most of what he did because it is so top secret.
        I am going to have to later read a script to you about what his job was all about, his
        day job. . . . They are going to make me read a script because I can't even talk about
        the details, but there is no dispute.

1/23/07 a.m. TR. 92.

        And later on, after lunch, we will go through what the government has agreed I can
        say about his job because under the rules -- and it's nobody's fault; I don't blame the
        government or anybody else -- Mr. Libby's job involved such issues of secrecy and
        national importance that to disclose the details of what he did could hurt the country.
        So I accept that. I accept that.

Id. at 101.

                *      *        *
        Now, this time chart just shows you what's going on in terms of that week in terms
        of national security issues. The bullets on the time chart have more specificity than
        the Government's statement I was permitted to read, but I also have to read these
        verbatim. Okay? I have to read them verbatim. I cannot go beyond the four corners.

1/23/07 p.m. TR. 51-52.

     Case 1:05-cr-00394-RBW             Document 268          Filed 02/07/2007        Page 2 of 4

        As this Court recognized, these arguments were misleading and unfair, in that they

inaccurately suggested to the jury that (a) the government was responsible for imposing restrictions

on the defendant's ability to defend against the charges; and (b) the defendant's ability to present a

defense was impaired as a result of the need to protect the secrecy of classified information. See

1/23/07 p.m. TR 4-5 ("I am more troubled by the second part of the statement because it suggests

that the Government has put a straight jacket on you. And therefore, you can't say what you

otherwise would say when in fact it's the Court that did that. . . . So I think, to the extent that you're

suggesting that the Government somehow has constrained you from being able to present your case,

is not fair. . . . Technically, it's really the Court that imposed the restrictions."); 1/23/07 p.m. TR 59

(". . . I do have concerns with the way it came out because, whether my rulings are liked or not,

they're rulings that I felt I had to make. I think they're the correct rulings. Obviously, at some point

if there is a conviction, a higher court will tell us whether those rulings were correct or not. But

those rulings were obviously predicated on the theory that Mr. Libby was substantially able or is able

substantially to submit his defense to the jury despite the limitations that have been imposed. So,

to the extent that it's being suggested that he's being hampered from presenting that defense, I think

that's an incorrect impression, an inappropriate impression to give because, from a legal perspective,

I made a decision that he is able to substantially present his defense. And it's being suggested that's

not the case. I think that is an inappropriate impression.")

        In order to correct the misleading impression created by the defense opening, and to inform

the jury that the Court, rather than the government, is responsible for imposing restrictions to protect

classified information, and that the Court has made a determination that the defendant's ability to

present a defense is not impaired as a result of the need to protect the secrecy of classified

     Case 1:05-cr-00394-RBW             Document 268          Filed 02/07/2007         Page 3 of 4

information, the government proposes that the Court instruct the jury as follows:


       In order to protect the national security, I made a legal ruling prior to trial that certain
       classified information could not be discussed during the trial by the witnesses or the
       lawyers. In many cases, I have ruled that a substitution or summary of the
       information in an unclassified form would suffice for the point being made. In
       making my ruling, I determined that prohibiting the witnesses and lawyers from
       discussing information at a level of detail that would be classified would not unfairly
       impair the defendant's ability to present a defense. You may not in any way hold my
       ruling against the government, or consider or speculate about classified information
       that may not have been presented during the trial based upon my ruling.


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

the foregoing instruction at the conclusion of the case.

                                                         Respectfully submitted,

                                                         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

Dated: February 6, 2007

     Case 1:05-cr-00394-RBW           Document 268        Filed 02/07/2007       Page 4 of 4

                                CERTIFICATE OF SERVICE

       I, the undersigned, hereby certify that on this 6th day of February, 2006, 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

                                                             By:      /s/
                                                             Debra Riggs Bonamici
                                                             Deputy Special Counsel

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