No Easy Answers

Wednesday, February 07, 2007

Fitzgerald Motion Re: Paucity of Subpoenas to Reporters [Doc 267]

     Case 1:05-cr-00394-RBW           Document 267        Filed 02/07/2007       Page 1 of 7

                             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"           )


       The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special

Counsel, respectfully submits the following proposed jury instruction regarding the Department of

Justice Guidelines on the Issuance of Subpoenas to Members of the News Media.


       As this Court is aware, defendant is charged with obstruction of justice, perjury, and making

false statements to investigators, in violation of 18 U.S.C. § § 1502, 1623 and 1001 in connection

with FBI and grand jury investigations concerning leaks to reporters of previously-classified

information regarding the employment of Valerie Plame Wilson. In interviews with the FBI and in

two appearances before the grand jury, the defendant represented that, when he disclosed information

regarding Ms. Wilson to reporters, he believed he was merely relaying information he had learned

from NBC News correspondent Tim Russert on July 10 or 11, 2003. Mr. Russert testified that while

he did speak with Mr. Libby by telephone on July 10 or 11, the issue of Ms. Wilson was not

discussed during that conversation.

Case 1:05-cr-00394-RBW         Document 267         Filed 02/07/2007       Page 2 of 7

 During the defense opening statement, counsel made the following arguments to the jury:

 Yet, Mr. Russert, when he was questioned by the Government about his knowledge
 and his recollection of the conversation between he and Mr. Libby, Mr. Russert was
 only questioned for 22 minutes, 22 minutes. Mr. Russert was not even required to
 go down to court and appear before the Grand Jury. They interviewed Mr. Russert
 in a law office. All the Grand Jurors ever saw was Mr. Russert's transcript or they
 read it to them. Mr. Russert didn't even have to go and appear before the Grand Jury,
 22 minutes.

 During that 22 minutes, Mr. Russert was not asked one question about what he knew
 about possibly David Gregory knowing. He wasn't asked one question about Andrea
 Mitchell knowing, not a question. Not one question.

 Mr. Fitzgerald says the FBI was concerned about getting to the truth, to the truth.
 Well, you're going to see that Tim Russert had a deal. He had a deal with the
 Government whereby he would only be questioned about his conversation with
 Scooter Libby and he couldn't be questioned about anything else.

 So Mr. Russert wasn't required to answer any questions about Andrea Mitchell or
 David Gregory because he had a deal. We'll explore that deal when Mr. Russert
 comes to court. But in terms of getting at the truth? They didn't ask Mr. Russert
 about Mitchell. They didn't ask Mr. Russert about Gregory.

 Now, you will find that the Government went out and did ask David Gregory and
 Andrea Mitchell if they would submit to an interview. And both of them told the
 Government, we don't want to be interviewed. We don't want to talk about it. What
 did the Government do? They did not subpoena Andrea Mitchell. They did not
 subpoena David Gregory. They just said we don't want to be interviewed. That was
 the end of it. Twenty-two minutes with Russert, they don't ask him. David Gregory,
 I don't want to be interviewed, no subpoena. Andrea Mitchell, I don't want to be
 interviewed, no subpoena.

 Now, Andrea Mitchell, she goes on the Imus radio show and talks about what she
 knew readily, but she doesn't talk to the Government. I mean so we have this
 perverse situation where Imus on the radio is asking the tough questions. He's asking
 the tough questions, the guy with the cowboy hat, yet, neither Gregory nor Mitchell
 are subpoenaed or required to give their side of the story, nor is Russert even
 questioned about it.

        *       *       *


     Case 1:05-cr-00394-RBW            Document 267         Filed 02/07/2007       Page 3 of 7

       Now, Matthew Cooper, I just talked about Russert. That's two counts. Mr. Russert
       is two counts of the indictment, two separate counts, false statement, perjury. Then
       he's part of that umbrella count, Count I. Mr. Russert, who I said only was
       questioned for 22 minutes, two counts of Mr. Libby's life.

1/23/07 Tr. 19, 23-24. This argument asked the jury to draw the inference from the government's

limited questioning of Mr. Russert and failure to question other reporters, that the government's

investigation was inadequate, and that it unfairly targeted the defendant. This argument was

misleading and unfair, in that it omitted the salient fact that government counsel were bound by the

Department of Justice Guidelines on the Issuance of Subpoenas to Members of the News Media, 28

C.F.R. § 50.10, which provide in pertinent part that:

       · Government counsel must take an approach that "strike[s] the proper balance between the
         public's interest in the free dissemination of ideas and information and the public's interest
         in effective law enforcement and the fair administration of justice." § 50.10(a).

       · "In criminal cases, there should be reasonable grounds to believe, based on nonmedia
         sources, that a crime has occurred, and that the information sought is essential to a
         successful investigation­particularly with reference to establishing guilt or innocence."
         § 50.10(f)(1).

       · A "subpoena should not be used to obtain peripheral, nonessential, or speculative
         information." § 50.10(f)(1).

       · Before issuing a subpoena to a member of the news media, all reasonable efforts should
         be made to obtain the desired information from alternative sources. § 50.10(b);
         § 50.10(f)(3).

       · When issuance of a subpoena to a member of the media is contemplated, the government
         must pursue negotiations with the relevant media organization. The negotiations should
         seek accommodation of the interests of the grand jury and the media. "Where the nature
         of the investigation permits, the government should make clear what its needs are in a
         particular case as well as its willingness to respond to particular problems of the media."
         § 50.10(c).

       · Wherever possible, subpoenas should be directed at information regarding a limited subject
         matter and a reasonably limited period of time. Subpoenas should avoid requiring


     Case 1:05-cr-00394-RBW            Document 267         Filed 02/07/2007       Page 4 of 7

          production of a large volume of unpublished materials and provide reasonable notice of
          the demand for documents. § 50.10(f)(6).

       · Subpoena requests "should be treated with care to avoid claims of harassment."
         § 50.10(f)(5).

Based on this omission, the jury would necessarily infer that the government was under no

constraints in seeking information from journalists, and hold against the government the fact that

subpoenas were issued to a discrete number of reporters, and that the government agreed to make

certain accommodations to take into account the reporters' interests in protecting information,

particularly information concerning confidential sources, that was not germane to the grand jury's

investigation. This inference is directly contrary to fact in that, as this Court held in ruling on the

defendant's Motion to Dismiss, the Office of Special Counsel was required to adhere to the

Department of Justice Guidelines. See United States v. Libby, 429 F. Supp. 2d 27, 42 (D.D.C.

2006)("[T]he Special Counsel cannot act outside the bounds of either his limited jurisdiction or

without regard for Department of Justice policies and regulations.") Moreover, as Chief Judge

Hogan found in ruling on Mr. Russert's motion to quash the subpoena:

       Assuming, arguendo, that the DOJ guidelines did vest a right in the movants in these
       cases, this Court holds that the DOJ guidelines are fully satisfied by the facts of this
       case as presented to the court in the ex parte affidavit of Patrick Fitzgerald.
       Furthermore, assuming arguendo that this Court were to determine that the
       journalists did possess a qualified privilege-a holding which this Court has explained
       is simply not supported by case law-the ex parte affidavit has also established that
       Special Counsel would be able to meet even the most stringent of balancing tests.
       The information requested from Mr. Cooper and Mr. Russert is very limited, all
       available alternative means of obtaining the information have been exhausted, the
       testimony sought is necessary for the completion of the investigation, and the
       testimony sought is expected to constitute direct evidence of innocence or guilt.

       Given the argument made in the defense opening, it is important that the jury be informed

that the government was not free to obtain any information it desired from any and all reporters it


     Case 1:05-cr-00394-RBW           Document 267        Filed 02/07/2007       Page 5 of 7

chose to subpoena, but was obligated to act with restraint, and with a view toward accommodating

the needs of members of the media. Therefore, the government requests that the Court give the

following instruction:

       In order to obtain testimony or documents from reporters or other members of the news
       media, government counsel was required to comply with the Department of Justice
       Guidelines on the Issuance of Subpoenas to Members of the News Media, 28 C.F.R. § 50.10.
       Under these guidelines, government counsel was required to:

       · Attempt to "strike the proper balance between the public's interest in the free
         dissemination of ideas and information and the public's interest in effective law
         enforcement and the fair administration of justice," and treat any subpoena requests to
         reporters with "care to avoid claims of harassment";

       · Pursue negotiations with reporters prior to issuing any subpoena, seeking to accommodate
         the interests of both the grand jury and the media; and

       · Seek from reporters information limited with respect to both subject matter and time frame,
         requesting only information essential to a successful criminal investigation, particularly
         with reference to establishing guilt or innocence, and only information unavailable from
         alternative sources; and

       · Refrain from issuing subpoenas to reporters in the absence of reasonable grounds to believe
         that a crime had occurred.


     Case 1:05-cr-00394-RBW           Document 267         Filed 02/07/2007       Page 6 of 7


       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 267        Filed 02/07/2007       Page 7 of 7

                                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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