No Easy Answers

See also Fitzgerald Motion in limine to Admit Marked Up Articles [Doc 261]

Case 1:05-cr-00394-RBW           Document 262        Filed 02/03/2007         Page 1 of 8



                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA



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


                  MOTION IN LIMINE OF I. LEWIS LIBBY
             TO EXCLUDE GOVERNMENT EXHIBITS 422 AND 423

               Mr. Libby respectfully submits this motion in limine to preclude the

government from introducing into evidence two newspaper articles that contain highly

prejudicial information (GX 422 and GX 423).

                                    BACKGROUND

               GX 423 is an October 4, 2003 Washington Post article by Walter Pincus

and Mike Allen; it is titled Leak of Agent's Name Causes Exposure of CIA Front Firm.

This article focuses on potential damage caused by the disclosure of Valerie Plame

Wilson's identity, including the exposure of a "CIA front company," Brewster-Jennings

& Associates. The article repeatedly maintains that Ms. Wilson was a covert CIA

employee, and even describes a Federal Election Commission record that the article

claims "establishes that [she] has worked undercover within the past five years." It also

includes the incendiary charge that the disclosure of Ms. Wilson's affiliation with the

CIA might have put lives in danger. For example, it states:

               The inadvertent disclosure of the name of a business
               affiliated with the CIA underscores the potential damage to
               the agency and its operatives caused by the leak of Plame's
               identity. Intelligence officials have said that once Plame's

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               job as an undercover operative was revealed, other agency
               secrets could be unraveled and her sources might be
               compromised or endangered. (emphasis added)

               GX 422 is an October 12, 2003 Washington Post article titled FBI Agents

Tracing Linkage of Envoy to CIA Operative, also by Pincus and Allen. The article begins

by describing Valerie Wilson as "a clandestine case officer." It contains sensational and

inaccurate assertions that have nothing to do with the charges against Mr. Libby. For

example, the article repeats the allegation, first published in a September 28, 2003

Washington Post story, that "two top White House officials disclosed Plame's identity to

at least six Washington journalists . . . as part of their broader case against Wilson."

According to an unnamed administration official, this disclosure "`was unsolicited . . . .

They were pushing back. They used everything they had.'"

                                       ARGUMENT

       A.      The Two Articles Should Be Excluded Because They Are
               Unfairly Prejudicial

               Admitting the two articles described above would prejudice the jury

against Mr. Libby. The articles focus on issues such as Ms. Wilson's actual employment

status and damage to national security ­ issues that the Court has squarely held are

irrelevant to this case. Putting such articles in evidence would cause jurors to speculate

about these issues, and threatens to undo the Court's efforts to date to prevent the jury

from trying to punish Mr. Libby for the unauthorized disclosure of classified information

­ a crime that he is not charged with and that he did not commit. This is precisely the

type of prejudice Rule 403 aims to prevent.

               The D.C. Circuit has held in analogous circumstances that the introduction

of highly prejudicial news articles constitutes reversible error. See Carter v. District of



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Columbia, 795 F.2d 116, 132-33 (D.C. Cir. 1986). In Carter, the plaintiffs brought

claims against police officers, a police chief, and the District of Columbia for alleged

failure to prevent police misconduct. Over defendants' objection, the district court

admitted into evidence newspaper articles alleging misconduct by police officers to

support the allegation that the police chief had failed to discipline the police force. The

district court permitted plaintiffs' counsel to read inflammatory accounts of police

misconduct into the record during the examination of the police chief.

                The appeals court held that the district court had abused its discretion and

committed reversible error by admitting the articles. The Circuit ruled that "the evidence

relevant to establish the [city's] liability was not the details of allegations contained in the

newspaper articles, but was whether or not [the police chief] w[as] familiar with the fact

of such allegations, and if so, had conducted investigations with regard to them." Id. at

128. Further, the court stated that "only brief factual summaries of the allegations"

should have been admitted to avoid the risk of unfair prejudice. Id.

                Just as in Carter, the evidence relevant to the government's motive theory

here is not the specific descriptions of Ms. Wilson's employment status and potential

harm to national security that are the focus of the Washington Post articles, but whether

Mr. Libby was "familiar with the fact of such allegations." Admitting these entire

articles, as the government has requested, would cause exactly the type of unfair

prejudice that the Carter decision cautions against. Cf. United States v. John, 508 F.2d

1134, 1142 (8th Cir. 1975) (finding it error for district court to admit contents of a

newspaper article that defendants had read as evidence of defendant's knowledge).




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               In Carter, the D.C. Circuit held that a limiting instruction would not be

enough to guard against the danger of unfair prejudice that would result from the

admission of inflammatory news articles. Carter, 795 F.2d at 126. The court found that

"there were certainly other ways the evidence could have been admitted so that the

relevant aspects were retained and the prejudicial aspects minimized." Id. Accordingly,

the district court should have minimized the "risk of unfair prejudice by permitting only

brief factual summaries of the allegations." Id. at 128. The court held that this "would

not have impaired plaintiffs' ability to develop evidence." Id. The same result is

compelled here, particularly because the government, in a previous submission,

represented that it would accept heavy redactions or summaries of all but one of the news

articles that it sought to introduce at trial. See Government's Response to Court's Inquiry

Regarding News Articles the Government Intends To Offer as Evidence at Trial, dated

May 12, 2006, at 9 (Dkt. No. 105-1) ("Govt. Resp.").

       B.      United States v. Yousef Does Not Apply Here

               During argument on this issue on February 1st, the Court called counsel's

attention to United States v. Yousef, 327 F.3d 56, 121 (2d Cir. 2003). That case is readily

distinguishable from the facts at hand.

               In Yousef, the defendant appealed his conviction for conspiracy to bomb

American commercial airliners. The defendant contended that the district court had erred

in admitting into evidence two letters found on his computer. The letters contained

additional threats against America and against other countries (France, Britain, and

Sweden). The appeals court upheld the district court's decision to admit the letters for

reasons that are inapplicable here. First, the letters were almost certainly written by the

defendant ­ they were strong evidence of his state of mind because they were his own


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statements, not the statements of others. Id. Second, the letters described the defendant's

own intended actions, rather than unrelated charges. Id. at 122. And finally, the

defendant did not object to admission of the letters at trial (nor did he suggest redactions),

which led the appeals court to review for plain error. Id. at 121. Yousef is neither

dispositive nor instructive here.

       C.      The Government Has Alternative Means of Proof

               The government claims it needs to introduce the articles in question to

support its theory of motive. As the D.C. Circuit indicated in Carter, the trial court

should consider whether alternative means of proof exist to allow relevant evidence to be

admitted without undue prejudice. See 795 F.2d at 126. Here, the evidence at issue can

be introduced through Mr. Libby's grand jury testimony, through heavily redacted

versions of the articles, or through summaries of the articles (as the Court itself has

suggested). The government can not have any objection to the latter two alternatives in

light of the position it set forth in its prior submission regarding news articles.

               In that submission, the government informed the Court and the defense

that it planned to introduce at trial only one news article in its entirety (Joseph Wilson's

July 6, 2003 Op Ed) and five other articles in redacted or heavily redacted form (none of

which was GX 422 or GX 423). The government also noted that it intended to "refer to

certain other articles," including articles mentioned in Mr. Libby's grand jury transcript,

but did not "intend to offer those articles in evidence even in redacted form." Govt.

Resp. at 2. GX 422 falls into this latter category of articles (i.e., articles that were shown

to Mr. Libby in the grand jury, but which the government did not plan to introduce at the

time of its submission). The government further stated that for any article it sought to

introduce "other than the annotated version of the Wilson Op Ed, the government [would]


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consider offering any appropriate redactions, or alternatively a stipulated summary of the

relevant assertions in the article . . . ." Id. at 9.

                 Presumably, the government made that statement because it recognized

that news articles relating to this case may be highly prejudicial to Mr. Libby. Nothing

has changed since that time to diminish the prejudicial effect of these articles. The

government's current insistence on introducing these articles in their entirety belies its

true intent ­ to put explosive allegations about Ms. Wilson's employment status and harm

to national security before the jury under the guise of providing evidence concerning

Mr. Libby's state of mind.

                 The current record, when combined with Mr. Libby's grand jury

testimony, provides ample evidence to support the government's motive theory, without

the inflammatory references to "CIA front companies," "potential damage to the

Agency," and "breach of national security." For example, Mr. Libby acknowledged in

the grand jury that he was aware of "the allegations that were whipping around in the

press [that] somebody had leaked classified information," and that he was specifically

aware of the October 12 article (GX 422) and similar news accounts. March 24, 2004 Tr.

at 153. Accordingly, Mr. Libby's grand jury testimony provides the functional

equivalent of the "brief factual summaries" that Carter suggests should be given to the

jury in place of highly prejudicial news articles.

                 Finally, none of the articles that have been introduced into evidence to

date in this case are nearly as prejudicial as the two stories at issue in this motion. ^1 In



1
      Those articles are: GX 401 (Nicholas D. Kristof, Missing In Action: Truth, N.Y.
      TIMES, May 6, 2003); GX 414 (Robert D. Novak, Mission To Niger, WASH. POST,
      July 14, 2003); DX 703B (Matthew Cooper, Massimo Calabresi and John F.

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particular, none of the articles currently in evidence claim that Ms. Wilson was working

in a covert capacity for a "front company," and none of them describe potential damage

to national security that could be caused by the disclosure of her identity.

                The government has what it needs to make its motive argument.

Whatever marginal additional probative value the two articles add is substantially

outweighed by their substantial prejudicial effect. Placing the two articles before the

jury, regardless of any limiting instruction the Court might give, threatens to rob Mr.

Libby of his right to a fair trial.




    Dickerson, A War on Wilson?, TIME.com, July 17, 2003); DX 705 (Walter Pincus,
    CIA Did Not Share Doubt on Iraq Data, WASH. POST, June 12, 2003); DX 707B
    (Joseph C. Wilson 4th, What I Didn't Find in Africa, N.Y. TIMES, July 6, 2003); DX
    715 (Nicholas D. Kristof, White House in Denial, N.Y. TIMES, June 13, 2003); and
    DX 1645 (Michael Duffy and James Carney, A Question of Trust, TIME, July 13,
    2003).


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                                      CONCLUSION

               For the foregoing reasons, I. Lewis Libby respectfully requests that the

Court grant this motion in limine and preclude the government from introducing GX 422

and GX 423.

Dated: February 2, 2007                         Respectfully submitted,


      /s/                                             /s/
Theodore V. Wells, Jr.                          William H. Jeffress, Jr.
(DC Bar No. 468934)                             (DC Bar No. 041152)
James L. Brochin                                Alex J. Bourelly
(DC Bar No. 455456)                             (DC Bar No. 441422)
Paul, Weiss, Rifkind, Wharton                   Baker Botts LLP
 & Garrison LLP                                 1299 Pennsylvania Avenue, NW
1285 Avenue of the Americas                     Washington, DC 20004
New York, NY 10019-6064                         Tel: (202) 639-7751
Tel: (212) 373-3089                             Fax: (202) 585-1087
Fax: (212) 373-2217

      /s/
John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700




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posted by cboldt  # 2/03/2007 03:45:00 PM