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" )
GOVERNMENT'S PROPOSED JURY INSTRUCTION
REGARDING CLASSIFIED INFORMATION
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL
COUNSEL, respectfully submits the following proposed jury instruction regarding classified
information.
ARGUMENT
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:
GOVERNMENT'S PROPOSED INSTRUCTION ON
RESTRICTIONS RELATED TO PROTECTING
THE SECRECY OF CLASSIFIED INFORMATION
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.
CONCLUSION
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,
/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 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
202-514-1187
By: /s/
Debra Riggs Bonamici
Deputy Special Counsel
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