No Easy Answers

Also expected is a (or a series of) Rule 29 Motion, requesting a Judgement of Acquittal. See Predictions of January 15.

There's a bit of scuttlebutt speculation that Judge Walton has lowered the bar (made it easier) on obtaining a guilty verdict on the obstruction charge, by eliminating one of the narrow and specific "AND" elements (Libby's recounting of his July 12 Miller conversation) that the jury must find. If Judge Walton gets rid of two more of the narrow and specific elements (Libby's recounting of the Cooper and Russert conversations), the charge will be reduced to the instruction Fitzgerald sought to begin with.

The motion incorrectly states what the prosecution is making "as the issue" ...

It is unfair for the government to make the issue of when Mr. Russert learned of Ms. Wilson's identity of critical importance in this case

... and then using that strawman, it assigns more relevance and materiality to Mitchell's proffered testimony than actually exists. The issue before the Court and the jury is whether or not Russert mentioned Mrs. Wilson (in whatever incarnation floats your boat). Mitchell's testimony will call for more speculation than the Rules of Evidence are designed to admit.

The motion is itself based on speculation.

Mr. Libby is hopeful that Ms. Mitchell will testify truthfully at trial by stating that, given her intense focus on the Wilson story, it is possible that she learned about Ms. Wilson's employment at the CIA prior to July 14, 2003

In other words, if Mitchell repeats her public statement, that she was talking out her ass when she said "everybody knew," the defense will label that testimony a lie - and they know they will so label that testimony before it is even given. If she doesn't say "yes, everybody knew" or that it's possible everybody knew (before the Novak article - interesting, not before the Russert call?), the defense will put those words in her mouth.

A good move, if they have witnesses to back up the bluster, but Mitchell being a public liar (like Russert is) gets pretty far afield from the issue before the Court.

Case 1:05-cr-00394-RBW          Document 275-1        Filed 02/09/2007       Page 1 of 23



                        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.                                     )


    CONSOLIDATED OPPOSITION OF DEFENDANT I. LEWIS LIBBY TO
   GOVERNMENT'S MOTION IN LIMINE TO PRECLUDE TESTIMONY OF
        ANDREA MITCHELL AND TO MOTION OF NON-PARTY
         ANDREA MITCHELL TO QUASH SUBPOENA IN PART

               Mr. Libby respectfully submits this consolidated opposition to the

government's motion in limine and to Andrea Mitchell's motion to quash, both of which

seek to preclude relevant and powerful evidence.

                            PRELIMINARY STATEMENT

               The defense intends to elicit testimony from Ms. Mitchell to show that she

was intensely covering the Wilson story during the relevant time period. Her activities

included interviewing Mr. Wilson on television and talking to government officials

(including officials at the CIA) about his trip. Based on her focus on the Wilson story,

the defense will explore the likelihood that Ms. Mitchell had heard a rumor, prior to July

14, 2003, that Mr. Wilson's wife worked for the CIA. At a minimum, the defense plans

to establish a factual record that the possibility of Ms. Mitchell hearing such a rumor

cannot be ruled out. If she testifies that she did not hear ­ or cannot remember hearing ­

a rumor about Ms. Wilson's CIA employment, the defense will then request to impeach

her with her October 2003 statement. However, regardless of the ultimate admissibility

Case 1:05-cr-00394-RBW          Document 275-1         Filed 02/09/2007       Page 2 of 23



of the October 2003 statement for impeachment purposes, the defense certainly has the

right to develop the factual record described above.

               Ms. Mitchell's October 2003 statement also impeaches Tim Russert, who

has testified that if Ms. Mitchell had heard something about Ms. Wilson, she would have

passed that information on to him. Because Mr. Libby intends to use Ms. Mitchell's

statement to challenge Mr. Russert's credibility, the factual scenario here is far different

from the cases cited by the government and Ms. Mitchell.

               In addition, Ms. Mitchell's October 2003 statement is admissible as

substantive evidence under the residual hearsay exception and the principles set forth in

Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

                                     BACKGROUND

               The defense wishes to elicit testimony from Ms. Mitchell regarding the

possibility that, prior to July 14, 2003, she had heard a rumor that former Ambassador

Joseph Wilson's wife worked at the CIA. The defense contends that it is likely that Ms.

Mitchell heard such a rumor, although she may not have learned Ms. Wilson's name or

her actual role at the CIA until she read Robert Novak's July 14, 2003 column. ^1

               Ms. Mitchell (even more than Mr. Russert or David Gregory) was actively

focused on the Wilson story prior to July 14, 2003. On July 6, she interviewed Mr.

Wilson on Meet the Press, and she made follow-up reports on his trip later in the week.

Cathie Martin has testified that on July 8, CIA spokesperson Bill Harlow told her that

Ms. Mitchell had called him and was working on a story about the sixteen words. Jan.


1
    Compare this statement to the NBC News statement issued on August 9, 2004, which
    denied that Mr. Russert knew "Ms. Plame's name and her role at the CIA" before
    reading Mr. Novak's column.


                                              2

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25, 2007 AM Tr. at 106. At the time Ms. Mitchell spoke to Mr. Harlow, he knew that

Mr. Wilson's wife worked at the CIA ­ in fact, he had told Ms. Martin that information.

In addition, as chief Foreign Affairs Correspondent for NBC News, Ms. Mitchell closely

covered the State Department, where Richard Armitage (who disclosed Ms. Wilson's

identity to two reporters, Bob Woodward and Robert Novak) worked. In October 2003,

Ms. Mitchell made a statement that indicates, at the very least, that she was trying to find

additional information about Mr. Wilson in the relevant time period.

               On October 3, 2003, on the CNBC television program Capitol Report, the

following exchange occurred between Ms. Mitchell and Alan Murray (the host of the

show):

               MURRAY: And the second question is: Do we have any
               idea how widely known it was in Washington that Joe
               Wilson's wife worked for the CIA?

               MITCHELL: It was widely known among those of us who
               cover the intelligence community and who were actively
               engaged in trying to track down who among the foreign
               service community was the envoy to Niger. So a number
               of us began to pick up on that. But frankly I wasn't aware
               of her actual role at the CIA and the fact that she had a
               covert role involving weapons of mass destruction, not
               until Bob Novak wrote it. ^2

               The defense intends to explore this statement with Ms. Mitchell on the

witness stand. The defense believes the statement was accurate when Ms. Mitchell said

it, even if she no longer recalls events in the same manner. However, even if Ms.

Mitchell had not made this statement, the defense would seek to examine the possibility


2
    The actual footage of this exchange, as well as Ms. Mitchell's subsequent attempts to
    explain what she meant on the Imus in the Morning program, were given to the Court
    along with the Offer of Proof that the defense submitted on February 8, 2007. See
    DX 1972.


                                             3

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that Ms. Mitchell had learned, prior to July 14, 2003, that Ms. Wilson worked for the

CIA.

               In addition, Ms. Mitchell's October 2003 statement ­ unlike her current

position ­ was made less than three months after the events in question, and prior to the

time when Mr. Russert, Ms. Mitchell's boss, began to deny publicly that he had been

aware of Ms. Wilson's CIA employment prior to July 14, 2003. Ms. Mitchell has never

been asked to explain her October 3, 2003 statement under oath, and examination by

defense counsel may yield more nuanced answers than the flat denials contained in her

motion to quash. For example, it is possible that what Ms. Mitchell said on Capitol

Report accurately reflected her knowledge in October 2003, although she has

subsequently forgotten what she knew about Ms. Wilson and when she learned it.

               When Ms. Mitchell is on the witness stand, we wish to explore how she

was intensely focusing on the Wilson matter during the time period of July 6 through July

14 (although, as promised, we will not ask her to reveal the identity of her sources). If

she denies that it is possible that she "began to pick up" on the fact that Mr. Wilson's

wife worked for the CIA prior to July 14, we will move to impeach her with her October

2003 statement. Thus, the defense has a good faith basis for calling Ms. Mitchell ­ to

elicit testimony about how she paid significant attention to the Wilson story and how it is

likely that she did in fact her a rumor that Mr. Wilson's wife worked for the CIA.

               Ms. Mitchell has previously attempted to explain why she said "it was

widely known" that Ms. Wilson worked at the CIA on at least two appearances on the

Imus in the Morning program (November 10 and 23, 2005). She gave a variety of

explanations, including that she misspoke and that she was confused, and even joked that




                                             4

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she was drunk. See DX 1972. Ms. Mitchell's attempts to explain her October 2003

statement to Mr. Imus on November 23, 2005 make clear that it is fair to interpret that

now-retracted statement to mean that she and others knew, prior to July 14, that Ms.

Wilson worked at the CIA. E.g., id., ("So clearly back in October of '03, I screwed it up.

. . . I was quite surprised to hear about [making the October 2003 statement] because it

isn't consistent with anything in my memory. I can't find any notes that reflect this, this

alleged knowledge, and so I was muddled on the timeline, that is all I can imagine.").

               Ms. Mitchell may have been motivated to retract her October 3, 2003

statement because it tends to demonstrate that Mr. Russert likely knew, prior to July 14,

2003, that Valerie Wilson was employed by the CIA. Mr. Russert has stated in public

and testified in court that had Ms. Mitchell heard such information prior to July 14, 2003,

she would have shared it with him. This was the practice and pattern in the NBC

Washington Bureau at the time. For example, on February 8, Mr. Russert gave the

following testimony:

               Q. Well, based on pattern and practice that existed in terms
               of how news teams worked at N.B.C. News, was the
               expected practice that if one of the key reporters on the
               team got important information, that they would come and
               report it to the group?

               A. Yes.

               Q. Okay. And Ms. Mitchell and Mr. Gregory ­ they were
               important members of the Wilson team, correct?

               A. They were two of them.

February 8, 2007 AM Tr. at 42.

               During her November 23, 2003 appearance on the Imus show, Ms.

Mitchell stated that during the time period in question, she talked to Mr. Russert and



                                             5

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others at NBC about the Wilson story, although she claims that she did not discuss Mr.

Wilson's wife with Mr. Russert until after July 14, 2003. See DX 1972. In addition, on

October 29, 2005, Ms. Mitchell stated on television that she expected that if Mr. Russert

had learned that Ms. Wilson worked for the CIA, he would have told her. Oct. 29, 2005,

CNBC, The Tim Russert Show Tr. at 11 (DX 502). The defense fully expects Ms.

Mitchell to testify (similar to Mr. Russert) that had she known that Ms. Wilson worked at

the CIA prior to reading Mr. Novak's column, she would have communicated that

information to Mr. Russert.

               The defense contends that if Ms. Mitchell had not retracted her prior

statement, great embarassment would have been caused to Mr. Russert and the NBC

television network, particularly because the indictment against Mr. Libby was based in

large part on testimony provided by Mr. Russert. Accordingly, the defense may also

wish to elicit testimony from Ms. Mitchell regarding her retractions of her October 3,

2003 statement.

               Finally, even if Ms. Mitchell's current position is that her October 2003

statement was mistaken, the defense is nevertheless entitled to conduct further inquiries

about it. In particular, the defense should be permitted to probe the possibility Ms.

Mitchell may have been making similar, mistaken statements to Mr. Russert prior to July

14, 2003.

                                      ARGUMENT

I.     A PARTY MAY IMPEACH ITS OWN WITNESS BY PRIOR INCONSISTENT
       STATEMENT

               The Federal Rules of Evidence leave no doubt that a party may impeach

its own witness by use of a prior inconsistent statement. Rule 613(b) states that "extrinsic



                                             6

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evidence of a prior inconsistent statement" may be admitted for impeachment purposes

"if the witness is afforded an opportunity to explain or deny the same and the opposite

party is afforded an opportunity to interrogate the witness thereon, or the interests of

justice otherwise require." Rule 607 states: "The credibility of a witness may be attacked

by any party, including the party calling the witness." Together, Rules 607 and 613(b)

permit a party to impeach its own witness by prior inconsistent statement. E.g., United

States v. Sollars, 979 F.2d 1294, 1298 (8th Cir. 1992) ("Under these rules, a party is

allowed to impeach its own witness and may use a prior inconsistent statement to do so.")

The government does not ­ and cannot ­ dispute this proposition.

                When a party impeaches a witness by prior inconsistent statement, the

statement is presented only for impeachment purposes and not as substantive evidence of

the truth of the matter asserted. ^3 If there is a risk that the jury will be confused by this

distinction, the proper remedy is a limiting instruction, not preclusion of the testimony.

United States v. Lewis, 693 F.2d 189, 197 n.34 (D.C. Cir. 1982). In its brief, the

government takes one exception to the impeachment rules ­ that a "party cannot call a

witness for the primary purpose of impeaching that witness with an otherwise



3
    If Mr. Libby has to impeach Ms. Mitchell, he understands that her prior statement
    will come in for impeachment purposes only, not as substantive evidence. One of the
    principal cases on which the government relies, United States v. Sebetich, 776 F.2d
    412 (3d Cir. 1985), has been distinguished by the Third Circuit on this ground. In
    Goodman v. Pennsylvania Turnpike Commission, 293 F.3d 655 (3d Cir. 2002), the
    Third Circuit noted, "Sebetich does not apply to this case. Sebetich and his
    codefendants were trying to admit Sala's statements for substantive purposes under a
    hearsay exception at the same time that they were ostensibly proposing to admit it for
    `impeachment' purposes under Rule 607. It was obvious that their intent was to place
    the substance of the statement before the jury." Id. at 666-67. In Goodman, where
    the proponent of the evidence introduced the testimony for impeachment purposes
    only, id. at 667, the evidence was properly admitted, id. at 668.


                                               7

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inadmissible prior statement" (Gov.'s Mot. at 4) ­ and seeks to use it to swallow Rules

607 and 613(b), despite the fact that all of the cases cited by the government are easily

distinguishable from the facts and circumstances of Mr. Libby's case.

II.    THE D.C. CIRCUIT'S DICTUM IN JOHNSON DOES NOT PRECLUDE THE
       DEFENSE FROM IMPEACHING MS. MITCHELL BY PRIOR
       INCONSISTENT STATEMENT

               The government and Ms. Mitchell attempt to use the D.C. Circuit's dictum

in United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), to run roughshod over Mr.

Libby's right to examine witnesses in his defense. A fair reading of the D.C. Circuit's

limited pronouncement in Johnson makes clear that the case does not in any way limit the

scope of Mr. Libby's potential examination of Ms. Mitchell.

               In Johnson, witness David Halmon had implicated the defendant in a

signed post-arrest statement, but later testified at a pretrial hearing that the statement was

false. Id. at 1463. At trial, the government called Halmon in its rebuttal case. When

Halmon refused to implicate the defendant, the trial court permitted the government to

introduce and publish the post-arrest statement. Id. Although the defense failed to object

to the government's introduction of the evidence as impermissible bootstrapping, the

D.C. Circuit considered the propriety of the practice in dictum. The Circuit found "that

the prosecution called Halmon not for any testimony he could be expected to give, but for

the sole purpose of bringing about the admission of a post-arrest statement that, as the

prosecution well knew or should have known, was not independently admissible." Id. at

1466 (emphasis added). The Circuit found this conduct by the government improper and

offered a paragraph of analysis to explain and limit its dictum:

                       There is no authority, in the Federal Rules of
               Evidence or elsewhere, suggesting that a party may on
               rebuttal call a witness-who the party knows will not offer

                                              8

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               any relevant evidence-and then impeach that witness by
               introducing, under Fed.R.Evid. 613(b), an earlier, hearsay
               statement favorably [sic] to that party's case. Indeed, the
               case law is to the contrary. Impeachment evidence is to be
               used solely for the purpose of impeachment, and it may not
               be `employed as a mere subterfuge to get before the jury
               evidence not otherwise admissible.' This type of
               bootstrapping is impermissible, and it is an abuse of the
               rule, in a criminal case, for the prosecution to call a
               witness that it [knows will] not give it useful evidence, just
               so it [can] introduce hearsay evidence against the
               defendant....

Id. at 1466 (alterations in original) (emphasis added) (citations omitted) (internal

quotation marks omitted).

               Thus, the D.C. Circuit issued the following limited dictum: (i) the

government (ii) may not call a witness who "it [knows will] not give it useful evidence"

(iii) "not for any testimony he could be expected to give, but for the sole purpose of

bringing about the admission of a ... statement that, as the prosecution well knew or

should have known, was not independently admissible." As will be demonstrated below,

none of the three elements of the Johnson dictum apply to Mr. Libby's case.

       A.      Nobody Knows How Ms. Mitchell Will Testify at Trial

               In its brief, the government states that "it is clear that, if asked about this

issue, Ms. Mitchell will testify that she did not know about Ms. Wilson's employment at

the CIA or possible role in arranging Ambassador Wilson's 2002 trip to Niger prior to

July 14, 2003." (Gov.'s Mot. at 4.) The government acknowledges Ms. Mitchell's

statement to the contrary on Capital Report on October 3, 2003, a statement that was

captured on video and was Ms. Mitchell's first public statement on the subject after the

Novak article ran. (Id. at 1-2.) The government bases its certainty that Ms. Mitchell will

testify contrary to her statement on Capital Report on self-serving public statements of



                                              9

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 Ms. Mitchell, self-serving statements by Ms. Mitchell's employers, and the arguments of

 Ms. Mitchell's counsel in a legal brief. (Id. at 2-4; see also Mitchell's Mot. at 4 ("Ms.

 Mitchell would testify that she did not know that Ms. Wilson worked for the CIA prior to

 July 14 . . . .").)

                   What neither the government nor Ms. Mitchell cites to, because it does not

 exist, is sworn testimony by Ms. Mitchell, subject to examination by counsel and

 observation by the jury, about how she was intensely focused on Wilson story prior to

 July 14, 2003, and the possibility that she picked up a rumor about Mr. Wilson's wife ­

 even if she has forgotten it now. The lack of a sworn statement by Ms. Wilson is a

 crucial factor distinguishing her potential testimony from the testimony in Johnson. In

 Johnson, the witness at issue had testified at a pretrial hearing that he had falsely

 implicated the defendant in a post-arrest statement. Johnson, 802 F.2d at 1463. Because

 the witness in Johnson was locked in by his testimony at the hearing, the government

 knew the answers he would give when called to testify and intentionally elicited that

 testimony in order to impeach him with the contradictory post-arrest statement. This is

 why the D.C. Circuit explicitly stated that it is "an abuse of the rule, in a criminal case,

 for the prosecution to call a witness that it [knows will] not give it useful evidence, just so

 it [can] introduce hearsay evidence against the defendant." Id. at 1466 (alterations in

 original).

                   The Tenth Circuit has spoken eloquently on the uncertainty of predicting

 trial testimony:

                           Appellate courts are reluctant to find that a party
                   called a witness for an improper purpose. The reason is
                   simple. Evaluating the purpose of counsel's decision to call
                   a witness is akin to pushing a string-neither is easy. . . .



                                               10

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                Will the formality of the courtroom, the oath, and the
                penalties of perjury change the witness' decision? What is
                the importance of the expected truthful testimony? . . . Any
                experienced trial attorney has encountered a witness who
                has changed his testimony between the final interview and
                trial. Counsel seldom knows with certainty what a witness
                will relate once on the witness stand. However, an attorney
                is entitled to assume a witness will testify truthfully. For
                these reasons, courts should find a party called a witness
                for an improper purpose only where the trial record
                establishes clearly and unequivocally the circumstances
                showing an improper purpose existed.

 United States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992). Mr. Libby is hopeful that

 Ms. Mitchell will testify truthfully at trial by stating that, given her intense focus on the

 Wilson story, it is possible that she learned about Ms. Wilson's employment at the CIA

 prior to July 14, 2003, perhaps because she heard a rumor or learned of a "buzz" about

 why Mr. Wilson was selected for his trip to Niger. The defense is calling her, in part, to

 elicit that truthful testimony. If Ms. Mitchell testifies falsely, he will attempt to impeach

 her with her prior statement, as is his right. But Johnson simply does not stand for the

 proposition that a defendant is required to assume a witness will give harmful testimony,

 when she has previously made crucial exculpatory statements. The D.C. Circuit's dictum

 in Johnson is inapplicable to Mr. Libby's case on the strength of this distinction alone.

                The uncertainty surrounding Ms. Mitchell's potential testimony also

 serves to distinguish three of the four principal cases from other Circuits on which the

 government relies. In Sebetich, the Third Circuit found that "when appellants moved to

 subpoena [a witness], they did so with the expectation that he would deny making such

 statements to [other witnesses]. The express purpose for calling [the witness] was thus to

 impeach him...." Sebetich, 776 F.2d at 428.        In United States v. Morlang, 531 F.2d 183

 (4th Cir. 1975), the Fourth Circuit similarly found: "Wilmoth was called by the



                                               11

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 government as its first witness despite the fact that it was fully aware that his testimony

 would tend to exonerate Morlang from participation in the bribery although damning

 against Ballard and Barron as well as Wilmoth himself. The real purpose for calling

 Wilmoth was apparently to elicit from him a denial that he had ever had any conversation

 with a fellow prisoner in which he implicated Morlang." Id. at 188. In United States v.

 Fay, 668 F.2d 375 (8th Cir. 1981), defense counsel made an offer of proof that a witness

 would deny a statement before seeking to call another witness to impeach the first

 witness with a prior inconsistent statement. Id. at 379.

                The circumstances here could not be more different. Unlike in the cases

 cited above, Mr. Libby is not calling Ms. Mitchell for the sole purpose of impeaching her.

 Rather, he has an entirely independent basis for seeking her testimony. The defense will

 establish how intensely she was working on the story during the week of July 6, from

 whom she was seeking information (e.g., Mr. Harlow), and about what (how Mr. Wilson

 got sent). That testimony alone, given by NBC's lead reporter on the story (who is

 known to have strong contacts at the CIA and State Department) will allow the defense to

 argue that Ms. Mitchell may well have picked up some "buzz" about the wife's

 employment and passed that along to Mr. Russert. If Ms. Mitchell denies it is even

 possible that she could have heard such a rumor, only then will Mr. Libby seek to

 impeach her with her statement that it was widely known before Mr. Novak's column

 that Mr. Wilson's wife worked for the CIA.

                Mr. Libby believes Ms. Mitchell may testify that her statements on

 Capital Report could have been accurate at the time she made them. In the event that

 Ms. Mitchell testifies to the contrary, Mr. Libby's right to impeach her should not be




                                              12

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 constrained based on cases in which the proponent of the evidence knew the witness

 would testify inconsistently and put on the witness for the purpose of later impeaching

 him.

        B.      The Defense Intends to Call Ms. Mitchell for Other Good-Faith Purposes
                as Well

                The government argues that a "party cannot call a witness for the primary

 purpose of impeaching that witness with an otherwise inadmissible prior statement."

 (Gov.'s Mot. at 4) (emphasis added). As discussed above, in Johnson, the D.C. Circuit

 found misconduct according to a different standard, when the government called its

 witness "not for any testimony he could be expected to give, but for the sole purpose of

 bringing about the admission of a ... statement that, as the prosecution well knew or

 should have known, was not independently admissible." Johnson, 802 F.2d at 1466

 (emphasis added). The defense intends to call Ms. Mitchell for a purpose apart from

 whether it is possible that she knew that Ms. Wilson worked at the CIA prior to July 14,

 2003. She will also be questioned about her telephone conversation with Mr. Libby on

 July 8, 2003, and about what she did to cover the Wilson story before July 14, 2003.

 Under the law of the D.C. Circuit, Mr. Libby is entitled to call and question Ms. Mitchell

 for all relevant purposes, including impeachment if that becomes necessary.

                Consistent with the law in this Circuit, other circuits have held that, when

 a witness may give testimony that is both helpful and harmful to a party, the party may

 call the witness and impeach her with prior inconsistent statements if necessary. In

 United States v. Eisen, 974 F.2d 246 (2d Cir. 1992), the Second Circuit distinguished the

 D.C. Circuit's dictum in Johnson on this ground, stating: "Where the Government has

 called a witness whose corroborating testimony is instrumental to constructing the



                                             13

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 Government's case, the Government has the right to question the witness, and to attempt

 to impeach him, about those aspects of his testimony that conflict with the Government's

 account of the same events." Id. at 262-63. In United States v. Webster, 734 F.2d 1191

 (7th Cir. 1984), which the government cites without comment, the Seventh Circuit

 affirmed the admission of a prior inconsistent statement by the government to impeach its

 own witness. Judge Posner wrote for the panel:

                Suppose the government called an adverse witness that it
                thought would give evidence both helpful and harmful to it,
                but it also thought that the harmful aspect could be nullified
                by introducing the witness's prior inconsistent statement.
                As there would be no element of surprise, Professor
                Graham ^4 would forbid the introduction of the prior
                statements; yet we are at a loss to understand why the
                government should be put to the choice between the Scylla
                of forgoing impeachment and the Charybdis of not calling
                at all a witness from whom it expects to elicit genuinely
                helpful evidence.

 Id. at 1193; United States v. Patterson, 23 F.3d 1239, 1246 (7th Cir. 1994) ("The most

 that we can say about Taylor as a witness is that he provided testimony that was both

 helpful and harmful at the same time. In such a case the prosecutor is allowed to call the

 witness and discredit the harmful testimony with prior inconsistent statements if

 possible.").

        C.      The Johnson Dictum Has Not Been Applied to Criminal Defendants

                The government assumes without support that the dictum in Johnson

 applies to criminal defendants as proponents of evidence, but that is not the law of the

 4
     In this passage, the Seventh Circuit specifically rejects the "surprise" evidentiary
     theory of Prof. Graham, which the government has cited at footnote 2 of its brief. For
     what purpose the government has cited Prof. Graham's work is unclear. The
     government does not argue that it is the law of the D.C. Circuit, or any jurisdiction,
     that a party calling a witness must be "surprised" by the witness's testimony in order
     to be permitted to impeach the witness.


                                             14

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 D.C. Circuit. The government cites no cases within the D.C. Circuit for the proposition

 that Johnson restricts the right of a defendant to impeach his own witness by prior

 inconsistent statements. As discussed above, Johnson involved an attempt by the

 government to impeach its own witness by a prior inconsistent statement. The Johnson

 dictum explicitly states that it is "an abuse of the rule, in a criminal case, for the

 prosecution to call a witness that it [knows will] not give it useful evidence, just so it

 [can] introduce hearsay evidence against the defendant...." Johnson, 802 F.2d at 1446

 (alteration in original) (emphases added) (quoting Webster, 734 F.2d at 1192) (internal

 quotation marks omitted). Indeed, in each of the five cases from other Circuits cited in

 Johnson, the government was the proponent of the testimony in question. Morlang,

 which the D.C. Circuit cited in Johnson and on which the government attempts to rely,

 explicitly grounds its rule in protection of the defendant's rights. Morlang, 531 F.2d at

 190 ("Foremost among these concepts is the principle that men should not be allowed to

 be convicted on the basis of unsworn testimony."); id. ("The introduction of such

 testimony, even where limited to impeachment necessarily increases the possibility that a

 defendant may be convicted on the basis of unsworn evidence....")

                 In fact, all but two of the cases cited in the government's motion address a

 government attempt to impeach its own witness. See United States v. Buffalo, 358 F.3d

 519, 525 (8th Cir. 2004) ("The vast majority of cases on the issue of impeaching one's

 own witness with a prior inconsistent statement speak to the government's use of the

 statements to impeach its witnesses where the statements inculpate the defendant."). One

 of the two cases the government cites which involves the defendant as the proponent of

 the evidence is the Third Circuit's opinion in Sebetich, which as discussed in footnote




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 II.A of this brief, has been distinguished by the later Third Circuit opinion in Goodman.

 In addition as we argue, Sebetich has also been distinguished on its facts in section II.A

 of this brief. The other case that the government cites applying the impeachment rule to a

 defendant is the Eight Circuit's 1981 decision in Fay, which has also been distinguished

 on its facts in section I.A of this brief. Furthermore, the Eighth Circuit's recent opinion

 in Buffalo appears to have limited Fay to the generic proposition that there is a "potential

 for abuse in impeaching one's own witness with prior inconsistent statements." Id. at

 522. In its detailed opinion in Buffalo, the Eighth Circuit applies a Rule 403 balancing

 test as the last step in determining whether a defendant should have been allowed to

 impeach his own witness by prior inconsistent statement. ^5 The Eight Circuit's analysis,

 which sounds in the same policies as Johnson and Morlang, casts serious doubt on the

 government's attempt to use Eighth Circuit precedent to argue that Mr. Libby may not

 impeach Ms. Mitchell by prior inconsistent statement if necessary:

                "When the prosecution attempts to introduce a prior
                inconsistent statement to impeach its own witness, the
                statement's likely prejudicial impact often substantially
                outweighs its probative value for impeachment purposes
                because the jury may ignore the judge's limiting
                instructions and consider the `impeachment' testimony for
                substantive purposes. That risk is multiplied when the
                statement offered as impeachment testimony contains the
                defendant's alleged admission of guilt."

                        ....

                        When the defendant seeks to introduce a prior
                inconsistent statement for impeachment purposes, the
 5
     In Johnson, the D.C. Circuit did not apply a Rule 403 analysis as part of its
     determination. Instead, the D.C. Circuit chose to examine the intentions of the party
     proffering the testimony under its "sole purpose" test. Cf. Buffalo, 358 F.3d at 523-24
     (comparing the Eighth Circuit's Rule 403 analysis with the "primary purpose" test of
     several other Circuits).


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                dangers identified above are not implicated. Simply put,
                the prejudicial impact of the statement does not endanger
                the defendant's liberty by risking a conviction based on
                out-of-court statements that are not subject to confrontation
                by way of cross-examination.

 Id. at 525 (citations omitted) (quoting United States v. Ince, 21 F.3d 576 (4th Cir. 1994)).

                To sum up, Mr. Libby seeks to call Ms. Mitchell to testify on a variety of

 topics, including whether it is possible that she knew, prior to July 14, 2003, that Ms.

 Wilson was employed at the CIA. Mr. Libby expects that when Ms. Mitchell is sworn on

 the witness stand, she will testify truthfully, admitting that she may have been aware of

 Ms. Wilson's status. If Ms. Mitchell does not testify truthfully, Mr. Libby may well have

 to impeach her with her prior inconsistent statement. Neither the government nor Ms.

 Mitchell has cited a single case that says he may not do so on these facts.

 III.   MS. MITCHELL'S OCTOBER 2003 STATEMENT IS NECESSARY TO
        CONTRADICT MR. RUSSERT

                The case presents a much different factual scenario from the ones

 discussed above because Ms. Mitchell's October 2003 statement is not only relevant to

 her expected testimony, but to the testimony of Mr. Russert. The government called Mr.

 Russert and elicited testimony that it was impossible for him to have asked Mr. Libby

 about Ms. Wilson because he did not know anything about her until July 14, 2003. Mr.

 Russert's testimony also indicates that the way his news team worked, if Ms. Mitchell (or

 Mr. Gregory) had known that Ms. Wilson worked for the CIA, she would have told Mr.

 Russert. Thus, whether Ms. Mitchell had heard a rumor that Ms. Wilson worked for the

 CIA prior to July 14, 2003 is directly relevant to Mr. Russert's credibility. It is unfair for

 the government to make the issue of when Mr. Russert learned of Ms. Wilson's identity




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 of critical importance in this case, and then hide behind a cramped view of evidentiary

 rules to bar the defense from introducing a contradictory statement by Ms. Mitchell.

 IV.      APPLICATION OF THE RESIDUAL EXCEPTION PROVIDED BY RULE 807
          IS WARRANTED IN THIS CASE

                  As noted above, Mr. Libby is clearly entitled to call Ms. Mitchell to

 provide testimony useful to the defense, testimony that does not rely on admission of her

 October 3, 2003 statements. Only if necessary will Mr. Libby seek to impeach Ms.

 Mitchell using those prior statements. Separate and apart from that, Mr. Libby submits

 that Ms. Mitchell's October 3, 2003 statements should be admitted for their truth under

 Fed. R. Evid. 807, the residual hearsay exception. The residual exception afforded by

 Rule 807 is, undoubtedly, a narrow one. But where, as here, the conditions necessary to

 invoke the exception are present, the interests of justice require that it be applied to

 ensure a trial reaches a fair result. See Chambers v. Mississippi, 410 U.S. 284, 302

 (1973). ^6

                  First, the out of court statements that Mr. Libby seeks to admit are

 undoubtedly "evidence of a material fact." Mr. Russert made clear in the deposition he

 gave to Mr. Fitzgerald and in his testimony at trial that the reason he is so certain he did

 not ask Mr. Libby about Ms. Wilson's employment is because he did not know about her

 employment at that time. Feb. 7, 2007 P.M. Tr. at 12, 34-35, 38; Aug. 7, 2004 Russert


 6
       Rule 807 states, in relevant part: A statement not specifically covered by Rule 803 or
       804 but having equivalent circumstantial guarantees of trustworthiness, is not
       excluded by the hearsay rule, if the court determines that (A) the statement is offered
       as evidence of a material fact; (B) the statement is more probative on the point for
       which it is offered than any other evidence which the proponent can procure through
       reasonable efforts; and (C) the general purposes of these rules and the interests of
       justice will best be served by admission of the statement into evidence.




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 Dep. at 15. Evidence that Mr. Russert did know about Ms. Wilson's employment would

 directly undermine Mr. Russert's testimony, and is therefore crucial to Mr. Libby's

 defense. Indeed, even evidence that Mr. Russert had heard a rumor regarding Ms.

 Wilson's employment would be sufficient to cast doubt on Mr. Russert's testimony. As

 Mr. Russert himself acknowledged, information learned through rumor is a sufficient

 basis to ask questions seeking to confirm or deny the rumor. Feb. 7, 2007 P.M. Tr. at 37.

                Ms. Mitchell's October 3, 2003 statements are highly probative on the

 issue of what Mr. Russert knew and when. They are, however, highly probative on that

 issue. Mr. Russert's own testimony (and Ms. Mitchell's public statements) regarding the

 information flow in the NBC newsroom make clear that if Ms. Mitchell had known, or

 heard rumors about Ms. Wilson's employment, she would have shared that information

 with Mr. Russert. See Feb. 7, 2007 P.M. Tr. at 42:9-18; DX 502 at 11. Moreover, as

 noted above, there is every reason to believe that when asked at trial whether she would

 have shared information about Ms. Wilson with Mr. Russert, Ms. Mitchell will

 acknowledge that to be true.

                The bottom line is that if permitted to admit the evidence in question, the

 defense will be able to argue to the jury:

                1.      that, contrary to her current position, Ms. Mitchell did in fact
                        possess information regarding Ms. Wilson's employment before
                        Mr. Novak's column;

                2.      that Ms. Mitchell would have relayed whatever information she
                        had to Mr. Russert; and

                3.      that, given his acknowledged drive to get the story first, Mr.
                        Russert would have sought to confirm that information when he
                        was, fortuitously, contacted by Mr. Libby.




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                This argument does not, contrary to the Court's concerns, rely on a chain

 of speculative inference. Rather, it is a simple and compelling argument that is based on

 evidence already in the record and that is crucial to Mr. Libby's defense.

                Second, Rule 807 requires that the evidence in question be "more

 probative on the point for which it is offered than any other evidence which the

 proponent can procure through reasonable efforts." Ms. Mitchell made the October 3,

 2003 statements regarding her knowledge of Ms. Wilson's employment close in

 proximity to the events of July 2003, and long before she had any possible motive to

 color her recollection of events. As the Court knows, the defense has sought from Ms.

 Mitchell and NBC any evidence regarding her knowledge of Ms. Wilson's employment

 at the time and have been told that no such evidence exists. The prosecution also has no

 information from that time period, as Ms. Mitchell declined to be interviewed and was

 not subpoenaed to provide testimony. Thus, the public statements Ms. Mitchell made on

 the Capital Report are the only means available to the defense to establish that Ms.

 Mitchell's knowledge about Mr. Wilson's wife was then ­ regardless of what she

 remembers or is willing to testify to now.

                Third, Rule 807 requires that the statements being offered have

 "circumstantial guarantees of trustworthiness." In Mr. Libby's view, statements Ms.

 Mitchell made regarding her pre-July 14 knowledge of Ms. Wilson's employment less

 than three months after the fact are significantly more reliable than what she has to say

 about that issue now, when a motive to shade her testimony may be present. What is

 more, Ms. Mitchell is not an unavailable declarant, but rather will be a witness at trial and

 therefore can be questioned by the prosecution about her October 2003 statements and




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 asked to explain them. Both the D.C. Circuit and other courts have held that where that

 opportunity for cross-examination is available, concerns about the trustworthiness of the

 statement at the time it was made are lessened. See SEC v. First City Fin. Corp., 890

 F.2d 1215, 1225 (D.C. Cir. 1989) ("Appellants had ample opportunity to cross-examine

 Greenberg about his out-of-court statements during his two depositions to probe for

 weaknesses. They also could challenge David Hyman's preparation of the chronology

 during Hyman's deposition. Thus, the primary rationale for the hearsay rule-the inability

 to cross-examine the out-of-court declarant on the veracity of his statement-was at least

 partially offset here."); see also United States v. Valdez-Soto, 31 F.3d 1467, 1471-72 (9th

 Cir. 1994) (admitting evidence under residual hearsay exception when declarant testified

 at trial); United States v. McPartlin, 595 F.2d 1321, 1350-51 (7th Cir. 1979)

 ("Furthermore the degree of reliability necessary for admission is greatly reduced where,

 as here, the declarant is testifying and is available for cross-examination, thereby

 satisfying the central concern of the hearsay rule."); United States v. Leslie, 542 F.2d

 285, 290 (5th Cir. 1976) ("We agree with Judge Learned Hand's observation that when

 the jury decides the truth is not what the witness says now but what he said before, they

 are still deciding from what they see and hear in court.").

                Finally, and perhaps most importantly, there is no doubt that here, "the

 interests of justice will best be served by admission of [Ms. Mitchell's] statement into

 evidence." Important as adherence to the hearsay rules are, the Supreme Court has

 admonished that those rules must yield where necessary to ensure a defendant's

 constitutional right to a fair trial and to present a complete defense is protected. That

 principle was made clear in Chambers v. Mississippi, where the Supreme Court explained




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 that "the hearsay rule may not be applied mechanistically to defeat the ends of justice,"

 410 U.S. at 302, and recently affirmed in Holmes v. South Carolina, 126 S. Ct. 1727

 (2006). The defense recognizes and appreciates that the residual exception is not to be

 invoked lightly. But we submit that where, as here, the evidence in question is so

 relevant to a central and perhaps outcome determinative issue in a criminal case, the

 application of Rule 807, and the teachings of the Chambers case, are plainly warranted.




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                                     CONCLUSION

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

 Court deny the government's motion in limine and Ms. Mitchell's motion to quash.

 Dated: February 9, 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




                                             23

posted by cboldt  # 2/09/2007 02:00:00 PM