No Easy Answers

Thursday, May 31, 2007

Libby Opposition to Government Sentencing [Doc 357]

Doc 357 - NOT an OCR job

                       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.                                     )


              Defendant I. Lewis Libby, through his counsel, respectfully submits this

memorandum in opposition to the Government's Memorandum of Law in Support of Its

Proposed Sentencing Guidelines Calculations ("Gov't Guidelines Mem."), filed May 25,

2007. In addition, we respond here to certain arguments raised in the Government's

Sentencing Memorandum ("Gov't Sent. Mem."), also filed May 25, 2007. Mr. Libby's

sentencing hearing is scheduled for Tuesday, June 5, 2007 at 9:30 a.m.


              The government contends that the Probation Office incorrectly determined

the offense level for the crimes of which Mr. Libby was convicted, and that the Court

should apply either of two enhancements under the Sentencing Guidelines. For the

reasons set forth below, the government's arguments are wrong as a matter of both fact

and law.

              First, and most significantly, the government relies on numerous "facts"

that are not supported by the record, and on evidence that was withheld from Mr. Libby

during discovery. Even worse, many of the government's assertions about Mr. Libby's

conduct are inconsistent with the record or otherwise misleading. The government urges

the Court to violate due process when it suggests that sentencing enhancements should be

based on secret or unproven facts.

               Second, the language of and the commentary to the Guidelines, in

conjunction with the relevant case law, contradict the government's positions.

               Third, the government fails to acknowledge the unique circumstances of

this case. Mr. Libby did not commit an underlying offense relating to unauthorized

disclosure of national defense information. Just as significantly for purposes of the

Guidelines, neither did anyone else. These facts were unmistakably clear from early in

the government's investigation, and certainly cannot be disputed now, in light of the

evidence adduced at trial. The government has used the sentencing process to reinject

into the case, unconstrained by the rules of evidence, issues long since ruled irrelevant. It

seeks to have Mr. Libby sentenced on the basis of the case it could have sought to try ­

but chose not to. In sum, the sentencing enhancements the government asks the Court to

impose would result in a punishment that is grossly disproportionate to the conduct on

which Mr. Libby's conviction was based.

I.     Factual Background

               The Court is familiar with the evidence at trial, and we do not wish to

rehash the evidence any more than necessary in this memorandum. Nevertheless,

because the government has distorted so many relevant facts, we are compelled to set the

record straight here.

       A.      The Nature of the Government's Investigation

               Valerie Wilson's employment at the CIA was disclosed publicly in a

column by Robert Novak published on July 14, 2003. There is no doubt that

Mr. Novak's column triggered the government's investigation. After the CIA referred

the matter to the Justice Department, an FBI investigation began in late September 2003.

It is undisputed that, as the investigation swiftly uncovered, Mr. Novak's two primary

sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow

also confirmed information about Ms. Wilson's CIA employment to Mr. Novak.

Mr. Libby had nothing to do with this leak. He was not a source for Mr. Novak, and he

was not acting in concert with any of Mr. Novak's sources. The government has never

suggested otherwise.

               During the investigation, Mr. Libby consistently told the FBI and the

grand jury that he had first learned that Ms. Wilson worked at the CIA from the Vice

President in early June 2003. The government's suggestion to the contrary (see Gov't

Sent. Mem. at 5) is belied by the trial record. According to Mr. Libby, months later he

thought he had forgotten that Ms. Wilson worked at the CIA and relearned this

information, to his surprise, from Tim Russert in a telephone conversation on July 10 or

11. Mr. Libby told the FBI and the grand jury that he also discussed Ms. Wilson's

identity with two reporters on July 12: Matthew Cooper and Judith Miller.1 Mr. Libby

    The government repeatedly claims that Mr. Libby has stated that his "disclosures of
    information regarding Ms. Wilson's employment may have been sanctioned by the
    Vice President." Gov't Guidelines Mem. at 6-7; see also Gov't Sent. Mem. at 12, 14.
    This is a misleading characterization of Mr. Libby's statements to the FBI and his
    grand jury testimony. Mr. Libby repeatedly told both the FBI and the grand jury that
    the Vice President had not instructed him to disclose any information regarding
    Ms. Wilson to the press, and his notes of discussions with the Vice President
    corroborate such statements and testimony. Only after repeated questioning by an
    FBI agent and the Special Counsel about whether it was possible that the Vice
    President had recommended such a disclosure did Mr. Libby allow that it was
    possible, although he had no such recollection. See, e.g., Mar. 24, 2004 G.J. Tr. at
    69-70 (GX 2).

said that when he communicated this information to Mr. Cooper and Ms. Miller, he

attributed it to reporters, and said he did not know if it was true.

        B.     The Charges Against Mr. Libby

               On October 28, 2005, Mr. Libby was indicted for obstruction of justice,

perjury, and making false statements, based on his account of his conversations with

Mr. Russert, Mr. Cooper and Ms. Miller. Although the government had investigated

potential offenses under the Intelligence Identities Protection Act ("IIPA"), 50 U.S.C. §

421 and the Espionage Act, 18 U.S.C. § 793, neither Mr. Libby nor anyone else was

charged with violating either of those two statutes or with any other offense involving

misuse of classified information. It is entirely unremarkable that no such charges were

ever brought. As detailed below, the overwhelming evidence from the FBI and grand

jury investigations and the trial proceedings shows that neither Mr. Libby nor the

numerous other government officials who discussed Ms. Wilson's employment during

June and July 2003 believed that she was covert or that her employment status was


               At the close of the government's case, the defense moved to dismiss from

the indictment the allegation that Mr. Libby had lied about his July 12 conversation with

Ms. Miller, because the evidence did not support this allegation. The government did not

oppose this motion, and the Court granted it.

               On March 6, 2007, Mr. Libby was convicted on Count 1 (obstruction),

Count 2 (false statements), and Counts 4 and 5 (perjury). Mr. Libby was acquitted on

Count 3, which charged that he had made false statements about his conversation with

Mr. Cooper. Thus, it appears that Mr. Libby's conviction rests principally on the jury's

determination that he lied to the FBI and the grand jury in saying Mr. Russert told him

that Ms. Wilson worked at the CIA, and in saying that he thought, when he talked to

other reporters about Ms. Wilson, that he was only passing on information from reporters

and did not know if it was true.2

               The government now makes sweeping accusations that Mr. Libby "lied

about nearly everything that mattered." Gov't Sent. Mem. at 5. Of course, the record

simply does not support the government's claims. The Court should disregard such

unsubstantiated, last-ditch attempts to accuse Mr. Libby of additional misconduct. The

government chose to charge a narrow case, and the jury's verdict was on even narrower

grounds (e.g., the Court dismissed the allegation that Mr. Libby lied about his

conversation with Ms. Miller, and the jury acquitted Mr. Libby of lying about his

conversation with Mr. Cooper). Neither the record nor the jury's verdict supports the

government's belated allegations of uncharged improper conduct.

       C.      The Government's Unsupported Claims About Ms. Wilson's Status

               Both of the sentencing memoranda the government filed on May 25, 2007

include unfounded assertions that Mr. Libby's conduct interfered with its ability to

determine whether anyone had violated the IIPA or the Espionage Act. See Gov't Sent.

Mem. at 13-15; Gov't Guidelines Mem. at 15. These assertions represent an attempt to

reinject into the case an issue the government could have raised earlier, but chose not to.

    Although the jury convicted Mr. Libby on Count 5, which also alleges false testimony
    about his conversation with Mr. Cooper, the instructions permitted the jury to convict
    on that count based solely upon Mr. Libby's testimony that "the only thing I had, I
    thought at the time, was what reporters are telling us." Accordingly, the conviction
    on Count 5 appears to be based on Mr. Libby's characterization of his state of mind
    subsequent to his conversation with Mr. Russert, rather than on Mr. Libby's account
    of what he actually said to Mr. Cooper. This is consistent with the jury's decision to
    acquit Mr. Libby on Count 3, which only alleged that Mr. Libby lied about his
    conversation with Mr. Cooper.

We are necessarily hampered in our ability to counter the government's assertions

regarding Ms. Wilson's status under the IIPA because the Court ruled ­ at the

government's behest ­ that the defense was not entitled to discovery of the information

necessary to challenge them. But even a review limited only to the publicly available

information suggests that the conclusion the government touts as "fact" is subject to

significant doubt.

               1.      It Is Not Clear That Ms. Wilson Was a Covert Agent Under the

               The government has refused for years to take a position regarding whether

Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October

28, 2005 press conference, in response to a reporter's question, the Special Counsel

stated: "I am not speaking to whether or not Valerie Wilson was covert." Special

Counsel Patrick J. Fitzgerald's Press Conference, Oct. 28, 2005 Tr. at 8.

               Early in discovery, Mr. Libby sought discovery of documents relating to

whether Ms. Wilson's status as a CIA employee was classified. See Mot. of I. Lewis

Libby To Compel Disc. of Rule 16 and Brady Material in the Possession of Other

Agencies at 2 (Jan. 31, 2006) (Dkt. 32). The government refused to provide the

requested discovery on the ground that it was irrelevant. It noted (correctly) that

Ms. Wilson's CIA status was "not an element of any of the three statutory violations

charged." Gov't Consol. Resp. to Def. Mots. to Compel Disc. at 28 n.11 (Feb. 16, 2006)

(Dkt. 36). In fact, according to the government, it was "irrelevant whether Mr. Wilson's

wife actually did work at the CIA" at all. Gov't Resp. to Def. Third Mot. to Compel

Disc. at 11 (April 5, 2006) (Dkt. 80).

               On June 2, 2006, the Court issued a discovery order "set[ting] forth what

this case is and is not about." Order at 1 (June 2, 2006) (Dkt. 112). After noting that

Mr. Libby had not been charged with illegally disclosing Ms. Wilson's affiliation with

the CIA, the Court explained that "the only question the jury will be asked to resolve in

this matter will be whether the defendant intentionally lied" to the grand jury and the FBI

about his conversations with three news reporters. Id. at 2. The Court made clear that the

actual status of Ms. Wilson's CIA employment had nothing to do with answering that

question. See id. at 3. Denying Mr. Libby's discovery requests, the Court held that

"Ms. Wilson's documented status as an employee of the CIA, unless viewed by the

defendant or the content of the documentation was made known to him or a potential

government witness, is simply immaterial to the preparation of the defense and thus not

discoverable." Id. at 6 n.3.

               The Court's comments during the trial also made clear that Ms. Wilson's

status with the CIA was irrelevant to the case. In preliminary instructions to the jury, the

Court stated that what Valerie Wilson's

               actual status was or whether any damage would result from
               the disclosure of her status are totally irrelevant to your
               assessment of the defendant's guilt or innocence on the
               offenses the defendant has been charged with in this case.

Jan. 23, 2007 A.M. Tr. at 19:25 to 20:12. The Court repeated this and similar statements

several times during the trial.

               The government has now adopted a new position on Ms. Wilson's status

in a brazen attempt to convince the Court that Mr. Libby should be punished as if he

outed a covert CIA official or mishandled classified information ­ a position it carefully

avoided taking before or at trial. The government baldly asserts: "At the time of the

leaks, Ms. Wilson in fact qualified as a `covert agent' within the meaning of the IIPA."

Gov't Guidelines Mem. at 5; see also Gov't Sent. Mem. at 12. The prosecution offers

two supposed grounds for this belated conclusion. Both are unconvincing.

               First, the government claims that its "investigators were given access to

Ms. Wilson's classified file." Gov't Guidelines Mem. at 5 n.2. This is tantamount to

asking the Court and Mr. Libby to take the government's word on Ms. Wilson's status,

based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a

request offends traditional notions of fairness and due process. United States v.

Blackwell, 49 F.3d 1232, 1235 (7th Cir. 1995) ("It is well established that a convicted

defendant has a right to be sentenced on the basis of accurate and reliable information,

and that implicit in this right is the opportunity to rebut the government's evidence.");

United States v. Edelin, 180 F. Supp. 2d 73, 75 (D.D.C. 2001) (it is necessary "to protect

the defendant's Fifth Amendment due process right by ensuring that defendant has the

ability to rebut any aggravating factors asserted by the Government").

               Second, the government relies on a terse two-and-a-half page summary of

Valerie Wilson's employment history that was generated by the CIA, which purports to

establish that "Ms. Wilson was a covert CIA employee for whom the CIA was taking

affirmative measures to conceal her intelligence relationship to the United States."3 We

have never been granted an opportunity to challenge this conclusory assertions or any of

the other unsubstantiated claims in this document, nor permitted to investigate how it was

created. If nothing else, the fact that the CIA's spokesperson confirmed Ms. Wilson's

    Gov't Guidelines Mem. at 5, and Ex. A thereto.

CIA employment to Mr. Novak calls into question whether the government was taking

affirmative measures to conceal her identity.

               The summary described above was provided to the defense along with a

companion summary that defined a "covert" CIA employee as a "CIA employee whose

employment is not publicly acknowledged by the CIA or the employee."4 It is important

to bear in mind that the IIPA defines "covert agent" differently. It states: "The term

`covert agent' means-- (A) a present or retired officer or employee of an intelligence

agency . . . (i) whose identity as such an officer, employee, or member is classified

information, and (ii) who is serving outside the United States or has within the last five

years served outside the United States." 50 U.S.C. § 426. The CIA summary of

Ms. Wilson's employment history claims that she "engaged in temporary duty (TDY)

travel overseas on official business," though it does not say whether such travel in fact

occurred within the last five years. Further, it is not clear that engaging in temporary

duty travel overseas would make a CIA employee who is based in Washington eligible

for protection under the IIPA. In fact, it seems more likely that the CIA employee would

have to have been stationed outside the United States to trigger the protection of the

statute. To our knowledge, the meaning of the phrase "served outside the United States"

in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA

remains very much in doubt, especially given the sparse nature of the record.

    Remedial Measures Following the Disclosure of Valerie Wilson's Employment
    Relationship With The CIA, produced to the defense on June 9, 2006.

               2.      Neither Mr. Libby Nor Anyone Else Understood Ms. Wilson To
                       Be Covert or Classified

               The Court's focus during trial on what Mr. Libby actually knew about

Ms. Wilson's status was correct, in light of the discovery provided to the defense. And to

the extent that the Court needs to consider Ms. Wilson's status during this phase of the

proceedings, it remains correct. There is simply no evidence that Mr. Libby received

information indicating that Ms. Wilson's position at the CIA was covert or classified.

               Mr. Libby consistently testified that he did not understand Ms. Wilson to

be covert or classified. As detailed below, all of the relevant evidence ­ including the

grand jury and trial testimony of the government's own witnesses ­ corroborates

Mr. Libby's testimony that he was unaware of Ms. Wilson's status. In light of the record,

then, it is misleading for the government to suggest that Mr. Libby's grand jury testimony

on this point should not be believed.

               As Mr. Libby told the grand jury, the Vice President told him that

Ms. Wilson worked at the CIA in June, but did not indicate that Ms. Wilson was covert or

that her job status was classified. This is consistent with Mr. Libby's notes of that

conversation, which do not identify Ms. Wilson as covert or classified. See GX 104; GX

104T. At trial, the government produced three witnesses who said they, too, had told

Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and

Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson

was covert or classified.

               The government also called five witnesses who said that Mr. Libby had

mentioned or referred to Ms. Wilson in conversations during June and July 2003: Craig

Schmall; Ari Fleischer; David Addington; Judith Miller; and Matthew Cooper. None of

these witnesses (nor any other trial witnesses) testified that Mr. Libby said Ms. Wilson

was covert. None of them testified that they believed Mr. Libby had been

communicating classified information to them. In sum, none of the witnesses who

testified at trial said that prior to July 14, 2003, they believed that Ms. Wilson's affiliation

with the CIA was protected information.

                 Indeed, as far back as August 2004, the government effectively admitted

what this record makes plain: that Mr. Libby was unaware of Ms. Wilson's alleged

covert status. At that time, the Special Counsel submitted an affidavit to the District

Court in opposition to Ms. Miller's motion to quash grand jury subpoenas. That affidavit

indicates the government was not considering prosecuting Mr. Libby under the IIPA

because it had "no direct evidence that Libby knew or believed that Wilson's wife was

engaged in covert work." Aug. 27, 2004 Aff. of Patrick J. Fitzgerald at 28 n.15. We are

aware of no evidence to the contrary adduced since that time.5 Indeed, the government

admits in its Guidelines Memorandum that "the information to which defendant was

given access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines

Mem. at 8 n.7.

                 The government does not explicitly concede a related point: that the

information provided to Mr. Libby did not identify Ms. Wilson as classified either. But

there can be no escaping this fact. We reiterate: no witness claims to have told

Mr. Libby that Ms. Wilson's affiliation with the CIA was classified. (In fact, putting

aside what these witnesses actually told Mr. Libby, none of them testified that they

    By August 27, 2004, the government had obtained grand jury testimony from all of
    the eight witnesses who testified at trial about discussing Ms. Wilson with Mr. Libby,
    except for Ms. Miller.

personally believed that Ms. Wilson's status was classified at the time). Logically, then,

there is no basis to conclude that Mr. Libby received information about Ms. Wilson that

he knew was classified. For this reason alone, Mr. Libby could not have knowingly

violated the IIPA or the Espionage Act.

II.    The Probation Office Applied the Guidelines Correctly

               It bears reiterating that under current law, the Guidelines are advisory.

Under the sentencing regime set forth in 18 U.S.C. § 3553(a), the relevant sentencing

range under the Guidelines is merely one of many factors that the Court must consider.

See United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005). (The departure

issues are addressed in our Sentencing Memo, which is being filed separately today).

               The Probation Office, the defense, and the government all concur that the

base offense level in this case is 14. The Probation Office and the defense agree that no

enhancements should be added to this offense level, and that there are grounds for a

departure downward from that level. In contrast, the government maintains that two

sentencing enhancements are applicable here, and disagrees with the bases for departure

identified by the Probation Office.

       A.      The Government's Proposed Guidelines Calculations Are Incorrect

               The government has asserted that with respect to the obstruction of justice

and perjury counts, the Court is obligated to apply the cross reference to the guideline

provision applicable to those convicted of being accessories after the fact, U.S.S.G. §

2X3.1. Employing this cross reference would lead, in the government's view, to an

offense level of 19. As detailed below, the government's arguments lack merit.

               1.      The Cross Reference Provision in the Obstruction of Justice
                       Guideline Is Not Applicable To Count 1

               U.S.S.G. § 2J1.2(c)(1), the obstruction of justice guideline, indicates that

the cross reference to § 2X3.1 is triggered when the defendant's obstruction is "in respect

to" a criminal offense. This requires, as a predicate, the commission of an underlying

criminal offense by the defendant or someone else. This interpretation, which is based on

the language of the obstruction guideline, is reinforced by the Commentary to the

guideline, 6 which states:

               Because the conduct covered by this guideline is frequently
               part of an effort to avoid punishment for an offense that the
               defendant has committed or to assist another person to
               escape punishment for an offense, a cross reference to
               § 2X3.1 (Accessory After the Fact) is provided. Use of this
               cross reference will provide an enhanced offense level
               when the obstruction is in respect to a particularly serious
               offense, whether such offense was committed by the
               defendant or another person. (Emphasis added.)

               The government argues that the fact that this commentary was amended

"to make clear that the cross reference should be applied in cases in which the defendant

committed obstruction to escape punishment for his own criminal conduct, as well as to

assist another person to escape punishment" supports its reading of § 2J1.2(c)(i). Gov't

Guidelines Mem. at 11. In fact, the opposite is true; it supports our reading of this

provision. The commentary initially suggested that the cross reference was applicable

only when the defendant obstructed justice with respect to an underlying offense

committed by another person. The Sentencing Commission then amended the

    This Commentary is entitled to substantial weight. "[C]ommentary in the Guidelines
    Manual that interprets or explains a guideline is authoritative unless it violates the
    Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading
    of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993)

commentary to clarify that the cross reference should also be applied where the defendant

obstructed justice with respect to an underlying offense committed by the defendant

himself. From this amendment, the government draws the illogical conclusion that the

cross reference should also be applied where no one committed an underlying offense.

Nothing suggests that the Sentencing Commission intended such an illogical result. See

U.S.S.G., Amend. 401.

               Before it could apply the cross reference, the Court would have to make a

finding, supported by at least a preponderance of the evidence, that a specific underlying

offense was committed by someone. Here, no underlying offense was committed by

Mr. Libby or anyone else. The government's investigation did not result in any charges

under the IIPA, the Espionage Act, or any other federal statutes relating to national

defense information. Indeed, regardless of whether any charges were brought, the

government has not even asserted that it believes any underlying, uncharged violation

actually took place. The government has not come close to showing, even by a

preponderance of the evidence, the existence of an actual violation that would trigger the

cross reference. This is not surprising, because, as discussed above, the evidence shows

that neither Mr. Libby nor anyone else believed that Ms. Wilson was covert or classified.

Accordingly, the record is devoid of any evidence on which it is possible to conclude that

an underlying offense occurred.

               Presumably because it cannot credibly assert than an underlying crime was

in fact committed by Mr. Libby or anyone else in this case, the government argues,

without support, that the defendant's mere intent to obstruct justice is enough to trigger

the cross reference in the obstruction of justice guideline, even if no underlying crime

occurred. See Gov't Guidelines Mem. at 12 ("The cross reference in 2J1.2 is designed to

match the offense level to the conduct and result intended by the defendant . . . .")

(emphasis in original). The government's theory conflicts with the purpose of the cross

reference, creates unsurmountable practical problems when it is applied to the facts of

this case, and is at odds with the relevant case law.

                       a.      The Purpose of the Cross Reference

               The Commentary to the obstruction guideline indicates that the purpose of

the cross reference is to punish more severely a defendant who causes (or intends or

attempts to cause) the obstruction of "a particularly serious offense." That purpose

cannot fairly be assessed without a finding that an underlying offense was actually

committed by someone. Because it appears that no underlying crime in fact occurred,

and the Court's rulings prevented inquiry on this critical issue, it would be inappropriate

for the Court to rely on the cross reference.

               We do not dispute the government's assertion that in certain situations, a

court can apply the cross reference regardless of whether "the defendant was charged or

convicted of the criminal offense under investigation." Gov't Guidelines Mem. at 10.

But the government goes too far in suggesting that the cross reference can be triggered

without "any requirement of proof that the underlying offense was committed," and in

arguing that "what crime actually occurred" is irrelevant to the Court's analysis. Id. at

10, 12. Its proposed rule has never been applied by any court ­ and for good reason.

Even in a Guidelines world in which prosecutors have extraordinarily broad power to

manipulate sentences, this is one step beyond.

                       b.      The Government's Application of the Cross Reference Is

               The flaws in the government's reading of the cross reference in the

obstruction guideline become most apparent when it attempts to apply the cross reference

to the IIPA and the Espionage Act, the statutes at issue here. Because the government's

reliance on what the grand jury was investigating for the basis of the obstruction cross

reference is not grounded on proof of any actual violation, it is essentially standardless.

Its approach affords the government an extraordinary amount of discretion, usurps the

fact-finding role of the Court, and undermines the purpose of the cross reference, as

expressed in the commentary.

               Both the Espionage Act and the IIPA include several possible violations,

each of which requires the government to prove a different state of mind. The

corresponding Guidelines sections reflect these distinctions (as well as distinctions for

what type of information was disclosed). Thus, for example, the base offense levels

under U.S.S.G. § 2M3.3, which governs a violation of 18 U.S.C. § 793(d), are 11 points

higher than the base offense levels under section § 2M3.4, which governs a violation of

§ 793(f). This difference reflects the fact that § 793(d) proscribes willful disclosures of

classified information, while § 793(f) applies to grossly negligent disclosures. The

government asserts without explanation that the Court should apply the guideline for a

willful disclosure. Yet, the fact that one guideline results in a higher offense level than

another is not reason to apply it.

               The government provides no evidentiary basis for its assertion that Mr.

Libby should be sentenced as an accessory after the fact to a willful, instead of a grossly

negligent, disclosure of classified information. The government claims that "§ 793(f)

could have been applicable to disclosures that could be characterized as `grossly

negligent,'" without providing any facts about the nature and circumstances of the

alleged disclosures. Gov't Guidelines Mem. at 9 n. 8 (emphasis added). At another

point, the government urges the Court to apply U.S.S.G. § 2M3.3 rather than § 2M3.2

"given the circumstances of this case," without giving any explanation of what those

circumstances are, even though they have enormous ramifications for the calculation of

the appropriate sentence. Id. at 9. Phrases like "could have been" and vague references

to the "circumstances of this case" make clear that there is no factual basis on which the

Court could make findings on this issue.

               The government's explanation for how the Court should apply the

guideline pertaining to violations of the IIPA (U.S.S.G. § 2M3.9) faces similar problems.

The government admits, as it must, that "the information to which defendant was given

access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem.

at 8 n.7. This concession would seem to eliminate the possibility that Mr. Libby could

have violated the IIPA, because that statute includes very strict knowledge and intent

requirements that are clearly not met here. The relevant provision of the IIPA states:

               Whoever, as a result of having authorized access to
               classified information, learns the identify of a covert agent
               and intentionally discloses any information identifying such
               covert agent to any individual not authorized to receive
               classified information, knowing that the information
               disclosed so identifies such covert agent and that the
               United States is taking affirmative measures to conceal
               such covert agent's intelligence relationship to the United
               States, shall be fined under title 18 or imprisoned not more
               than five years, or both.

50 U.S.C. § 421(b) (emphasis added). Because Mr. Libby was not given information that

identified Ms. Wilson as a covert agent, he thus could not have known that the United

States was "taking affirmative measures" to conceal her identity. The IIPA is therefore

inapplicable to his conduct.

               Nevertheless, "in the government's view," Mr. Libby should be treated as

if he obstructed the "particularly serious offense" of disclosing a covert agent's identity.

The government provides no facts, however, to support any finding by the Court that a

violation of the IIPA should be deemed the applicable underlying offense here.

Moreover, the government's Guidelines calculation with respect to the IIPA turns on a

choice between two Guidelines provisions, each of which provide different base offense

levels depending on what kind of access to classified information the defendant had. See

U.S.S.G. § 2M3.9. The government offers in support of its choice between those

provisions only its "view" that the focus of the investigation was closer to one of the

provisions than the other. The government's "view" of the appropriate cross reference

(even if it works in the defendant's favor) is simply not an adequate basis for a court to

apply the cross reference.

               The fact that the government's approach to the cross reference affords it so

much leeway in determining which guideline to apply is evidence that its reading of this

provision is wrong. The Court's analysis of the Guidelines should be transparent. The

only way to achieve this result is for the government to prove a specific underlying

offense that was actually charged or committed by the defendant or someone else, so the

Court can make the necessary findings. Due process requires that the Court, not the

government, determine which underlying offense actually occurred before the cross

reference in the obstruction of justice guideline is triggered.

                       c.         The Cases the Government Cites Are Not Applicable

               In all but one of the cases the government cites in support of its contention

that the Court should apply the cross reference, either the defendant or another person

was charged with an underlying crime.7 The one case the government cites in which

underlying charges apparently were not brought, United States v. Quam, 367 F.3d 1006

(8th Cir. 2004), presents an inapposite fact pattern. In that case, the court applied the

cross reference in conjunction with the obstruction of justice guideline to punish a

defendant who had testified falsely in a grand jury investigation regarding the drug-

trafficking activities of her live-in boyfriend. The court followed the cross reference to a

drug-trafficking statute and made drug-quantity findings, "notwithstanding the fact no

one ha[d] been indicted or convicted of an underlying drug offense." Id. at 1009. In that

case, a confidential informant had observed the defendant participating in drug

transactions at her residence, and during a "subsequent search, law enforcement

discovered 111.5 grams of marijuana [and] 2.3 grams of methamphetamine." Id. at 1007.

Thus, the prosecution presented evidence that an underlying crime had, in fact, occurred.

That evidence provided a factual basis for making the findings necessary to apply the

cross reference. There can be little doubt that an underlying drug crime was in fact

committed by someone in the Quam case, even in the absence of any drug charges. No

such factual basis exists here.
    See United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007) (underlying civil rights
    charge); United States v. Gay, 44 F.3d 93 (2d Cir. 1994) (underlying conspiracy to
    commit armed robbery charge); United States v. Kimble, 305 F.3d 480 (6th Cir. 2002)
    (underlying murder charge); United States v. Russell, 234 F.3d 404 (8th Cir. 2000)
    (underlying drug charges); United States v. Arias, 253 F.3d 453 (9th Cir. 2001)
    (underlying drug and weapons charges); United States v. Brenson, 104 F.3d 1267
    (11th Cir. 1997) (underlying drug charges); United States v. McQueen, 86 F.3d 180
    (11th Cir. 1996) (underlying money laundering charges).

               To be sure, the case law suggests that an acquittal is not necessarily a bar

to the application of the cross reference, as the government points out. See, e.g., Gay, 44

F.3d at 95; Arias, 253 F.3d at 459; McQueen, 86 F.3d at 182-83.8 Acquitted conduct is

not at issue here, however. The Gay, Arias, and McQueen cases should not be interpreted

to mean that the government does not have to articulate an actual underlying offense by

the defendant or someone else. Moreover, Gay suggests that before the sentencing court

can apply the cross reference to acquitted conduct, it must make a finding about the

underlying crime supported by evidence. 44 F.3d at 95 ("the district court found that the

[underlying crime] had unquestionably been committed") (emphasis added). Here, the

government cannot meet its burden (even under a preponderance of the evidence

standard) to support a finding that any underlying crime was in fact committed, which

should end the inquiry.

               The government has not cited a single case where a court applied the

accessory after the fact cross reference even though no underlying charges were brought

against the defendant or someone else, or where it was not unmistakably evident that a

crime had actually been committed. Nor has our research uncovered such a case. The

government's reading of this Guidelines provision is unsupported.9

    To the extent that the government suggests that these three decisions stand for the
    idea that the cross reference should be followed without regard to "whether an
    offense could be shown to have been committed at all," Arias, 253 F.3d at 459, such
    statements are dicta. In all three cases, the government did in fact charge an
    underlying offense.
    The unreasonable nature of the government's approach is illustrated by its insistence
    that even in the hypothetical case where a defendant is convicted of obstructing an
    investigation into a potential murder that turns out to be a suicide, the cross reference
    to the guideline for homicide must nevertheless be applied. Such an absurd result

               Finally, even if the government's argument that the cross reference must

be applied mechanically whenever a defendant intends to obstruct an investigation had

any merit ­ which it does not ­ the circumstances of this case are so unique as to justify a

departure from the offense level that would result. This case does not fit within the

heartland of cases in which the cross reference is properly applied because it presents the

unprecedented situation where the government has requested the application of the cross

reference without charging or even identifying an actual underlying violation. We also

note that courts should tread lightly where the government sets forth sentencing

enhancement factors that are so severe that they become a tail wagging the dog of a

substantive offense. See United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991).

               2.      The Cross Reference Provision in the Perjury Guideline Is Not
                       Applicable To Counts 4 or 5

               U.S.S.G. § 2J1.3(c)(1) states: "If the offense involved perjury . . . in

respect to a criminal offense, apply § 2X3.1 in respect to that criminal offense . . . ." For

the reasons set forth above concerning the obstruction guideline, the perjury guideline

also requires an underlying criminal offense to have actually been committed by the

defendant or someone else. It is appropriate to use similar analysis for the two guidelines

because, as the Commentary to U.S.S.G. § 2J1.3 explains, "perjury should be treated

similarly to obstruction of justice. Therefore, . . . an alternative reference to the guideline

for accessory after the fact is made."

               The case law is clear that in considering whether perjury is "in respect to a

criminal offense," a sentencing court should determine whether "the defendant knew or

   demonstrates the need for a sentencing court to determine that an actual underlying
   offense was committed before applying the cross reference.

had reason to know, at the time of his perjury, that his testimony concerned such a

criminal offense." United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999)

(quoting United States v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996)). In Leon-Reyes, the

Ninth Circuit affirmed the district court's determination that the defendant's perjury in a

trial involving money laundering and drug trafficking charges brought against two other

individuals "was only in respect to" the former charges. Id. The court found that because

Leon-Reyes's "entire testimony" concerned certain "business and financial affairs," and

would have had a "very insignificant effect . . . on the drug trafficking charges, . . . the

district court properly exercised its discretion in determining that Leon-Reyes's perjury

was only in respect to the money laundering charges." Id. This case makes clear that the

Court should make findings concerning the nexus between the defendant's perjury and

the underlying criminal offense.

                As we have repeatedly emphasized, there is no evidence in the record here

to support a finding that any underlying offense was actually committed by Mr. Libby or

anyone else. In addition, as we have discussed above, because the government focuses

on what the grand jury was investigating rather than proof of an actual violation, it

engages in standardless Guidelines calculations. The government's approach should be

rejected because it provides no facts for the Court to make findings regarding which

provisions of the Guidelines governing violations of the IIPA and the Espionage Act are

applicable. The mens rea requirements, and the corresponding offense levels, vary

significantly among these provisions, making it improper for the government to exercise

discretion in this area.

               The government contends that the testimony by Mr. Libby the jury found

to be false "bore directly on the elements of the IIPA and the Espionage Act." Gov't

Guidelines Mem. at 14. This is an unfair characterization of Mr. Libby's testimony.

Even a quick review of the testimony at issue in Counts 4 and 5 indicates that it has

nothing to do with whether Ms. Wilson's status was covert or classified, which are the

focus of the IIPA and the Espionage Act. Instead, Count 4 relates to Mr. Libby's

description of his conversation with Mr. Russert (essentially, Mr. Libby testified that

Mr. Russert mentioned Ms. Wilson's CIA employment to him and that he was struck by

what Mr. Russert said). And Count 5 relates to what Mr. Libby told reporters, and his

state of mind at the time (e.g., "I told a couple reporters what other reporters had told


               The government also argues that Mr. Libby tailored his testimony to

suggest that he did not know that Ms. Wilson was a covert agent or that information

about her employment was classified. See id. This conclusion is undermined by the

record evidence, which shows that Mr. Libby did not know prior to July 14, 2003 that

Ms. Wilson was covert or classified.

               The government attempts to prop up its faulty theory by pointing to events

that occurred after Mr. Libby discussed Ms. Wilson with reporters. For example, the

government notes that news articles in Mr. Libby's files alleged that Ms. Wilson was

covert, and that David Addington testified that he gave Mr. Libby a copy of the IIPA.

Such evidence is entirely beside the point. Either Mr. Libby was told prior to his

discussions with reporters that Ms. Wilson was covert or classified, or he was not. The

evidence clearly establishes that he was not. And contrary to the government's claims,

nothing in the record suggests that Mr. Libby "well knew" that any violations of the IIPA

or the Espionage Act had in fact been committed; indeed, Mr. Libby believed the

opposite. Accordingly, his testimony was not "in respect to" any actual violations of the

IIPA or the Espionage Act, making the cross reference inapplicable.

               Finally, with respect to the perjury counts, the government relies heavily

on United States v. Suleiman, 208 F.3d 32 (2d Cir. 2000), to support the proposition that

a defendant's intent to commit perjury is enough to trigger the cross reference provided

by § 2J1.3(c). Suleiman, however, like the cases cited by the government with respect to

the obstruction of justice cross reference, involves a situation where an underlying crime

(conspiracy) had actually been charged, and is thus inapposite.

               3.      The Cross Reference Provision Is Not Applicable To Count 2

               U.S.S.G. § 2B1.1 governs the offense of making false statements (Count

2). According to the government's analysis, if the conduct charged in Count 2

established a violation of 18 U.S.C. § 1505 (obstruction of proceedings before federal

agencies), then § 2B1.1(c)(3) would require the court to apply the guideline for that

violation. The government concludes that "the propriety of applying the cross reference

to Count 2 is debatable," because that count did "not specifically allege that defendant

made the charged false statements `corruptly,' with intent to obstruct the FBI's

investigation." Gov't Guidelines Mem. at 17-18. We agree that the cross reference

should not be applied to Count 2 because it is not clear that Count 2 constitutes a

violation of 18 U.S.C. § 1505. Nevertheless, even if the Court looked to the guideline

applicable to violations of 18 U.S.C. § 1505, there would be no basis for the court to

apply a cross reference to the guidelines for violations of the IIPA or the Espionage Act,

for the same reasons already set forth above.

               4.      The "Substantial Interference" Enhancement Is Not Warranted

               The government has also argued that a three-level increase in the offense

levels for perjury and obstruction of justice is warranted here because Mr. Libby's crimes

purportedly "resulted in substantial interference with the administration of justice," by

causing "the unnecessary expenditure of substantial governmental or court resources."

See Gov't Guidelines Mem. at 18. The government's arguments are misplaced because

Mr. Libby neither "caused" the government's expenditures nor were those expenditures

"unnecessary" or "substantial" as required by U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2).

                       a.     Mr. Libby's Conduct Did Not Cause the Government's

               The government cannot show ­ as it must to justify a three-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) ­ that Mr. Libby's conduct

caused many of the expenditures described in its submission. Specifically, the

government has pointed to expenditures associated with: (1) obtaining testimony from

Mr. Russert and other reporters, including negotiations and litigation concerning grand

jury subpoenas; (2) conducting interviews and obtaining testimony from government

officials, including the Vice President, Cathie Martin, Robert Grenier, and others; and (3)

obtaining and reviewing documents. See Gov't Guidelines Mem. at 20. The

government's arguments ignore several key facts that make clear that it was not

Mr. Libby who caused these activities and expenditures. Therefore, he should not be

penalized for them. See, e.g., United States v. Jackson, 67 F.3d 1359, 1370 (8th Cir.

1995) (finding error in the district court's application of U.S.S.G. § 2J1.2(b)(2) where the

defendant's actions and the ensuing investigation were not sufficiently connected).

               As the PSR correctly states, Mr. Libby was not responsible for the First

Amendment litigation between the government and reporters. Early in the government's

investigation, Mr. Libby signed a waiver giving reporters permission to speak with the

government about their conversations with him. The waiver stated, in part,

               I request any member of the media with whom I may have
               communicated regarding the subject matters under
               investigation to fully disclose all such communications to
               federal law enforcement authorities. In particular, I request
               that no member of the media assert any privilege or refuse
               to answer any questions from federal law enforcement
               authorities on my behalf or for my benefit in connection
               with the subject matters under investigation.

GX 11, Statement & Waiver of I. Lewis Libby, signed Jan. 5, 2004. Throughout the

government's investigation, whenever requested, Mr. Libby and his counsel provided

reassurances to reporters that his waiver was voluntary. Those reporters who fought the

subpoenas did so because they believed the so-called "journalist's privilege" protected

their conversations with sources and feared the subpoenas were "fishing expeditions"

designed to obtain evidence about sources other than Mr. Libby. For example, as Tim

Russert stated at trial, he "fought that subpoena because we were very concerned at NBC

News about a reporter being called into a proceeding which could be open-ended, a so-

called fishing expedition. That could have a chilling effect on my ability to talk to

people." Feb. 7, 2007 P.M. Tr. at 72:24 to 73:3; see also Matthew Cooper, What Scooter

Libby and I Talked About, TIME, Oct. 30, 2005 at 1 (explaining that he fought the

subpoena "to protect the principle of source confidentiality").

               The government contends that Mr. Libby's waiver does not "preclude the

application of the enhancement" with respect to the expenditures related to obtaining

testimony from journalists for two main reasons. First, according to the government,

Mr. Libby was "well aware" when he was interviewed by the FBI that reporters tried to

protect their sources, and "thus anticipated the possibility of litigation over any

subpoenas the government might issue." Gov't Guidelines Mem. at 21. This argument

fails because it was far from clear in January 2004 that certain reporters would refuse to

testify notwithstanding the existence of the waiver. For example, several reporters not

mentioned in the government's submission accepted Mr. Libby's waiver when coupled

with his personal assurances, and testified without mounting any legal challenges to the

subpoenas. See, e.g., Feb. 12, 2007 A.M. Tr. at 43:2-7 (testimony of reporter Walter

Pincus); Feb. 12, 2007 P.M. Tr. at 57:23-58:23 (testimony of reporter Glenn Kessler).

Moreover, Mr. Libby signed the waiver before any litigation between the government and

reporters occurred. Even if that litigation could have been anticipated notwithstanding

the waiver, it hardly stands to reason that Mr. Libby caused it.

               Second, the government resurrects the old canards that Mr. Libby was

responsible for Ms. Miller's incarceration and that he sought to influence her testimony in

a letter sent to her in jail. Ms. Miller's testimony is to the contrary. At trial, she admitted

that she had not contacted Mr. Libby regarding the validity of his waiver until after she

was already incarcerated:

               Q: Why did you . . . not contact Mr. Libby earlier
               regarding his personal waiver?
               A: Because I did not have the agreement from
               Mr. Fitzgerald to limit any questioning of me about sources
               to either one source and the subject at hand. I was afraid of
               a fishing expedition. . . . I was very nervous about that, that
               this was the beginning of a long set of questions about who
               my sources were . . . .

Jan. 31, 2007 A.M. Tr. at 99:10-20. Further, in her grand jury testimony, Ms. Miller

stated that she did not understand Mr. Libby's letter to her in jail as an attempt to

influence her testimony. Miller Oct. 12, 2005 G.J. Tr. at 42.

                Moreover, given the exacting manner in which the government proceeded

with its investigation of the disclosure of Valerie Wilson's CIA employment to reporters,

it seems likely the government would have issued subpoenas to reporters ­ and litigated

their motions to quash ­ even if Mr. Libby's grand jury testimony had been consistent

with that of Mr. Russert, Ms. Miller and Mr. Cooper. This conclusion is supported by the

trial testimony of the FBI Case Agent in charge of the investigation, who testified at trial

about its broad scope:

                We were trying to determine how it happened that [Valerie
                Wilson's] name and her employment at the CIA got to the
                media. . . . We were trying to find out the names of the
                people who knew about her employment at the CIA and her
                identity, as well as where they learned the information,
                [and] who they told. . . .

See Feb. 1, 2007 P.M. Tr. at 37:24-25; 39:5-13 (testimony of Special Agent Deborah S.


                It therefore seems likely the government would have interviewed the

government officials it claims were interviewed only because of Mr. Libby (such as the

Vice President), and continued to gather documents, even if it had not doubted the

veracity of Mr. Libby's testimony. The mere fact that the interviews occurred after

Mr. Libby's grand jury testimony is insufficient to justify a three-level enhancement if

that testimony did not cause the FBI to conduct those interviews. For these reasons, the

government's conclusory allegations regarding its purported additional expenditures are


                       b.      The Government's Expenditures Were Not "Unnecessary"
                               or "Substantial"

               The government's argument that the Court should apply a 3-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) fails for another reason as

well. The government cannot show that any expenditures resulting from Mr. Libby's

grand jury testimony were "unnecessary" or "substantial," as it must under U.S.S.G.

§§ 2J1.2, cmt. n.1 and 2J1.3, cmt. n.1, because any such expenditures were made

primarily if not exclusively to build a case against Mr. Libby for lying to the grand jury.

               It is well settled that the government may not rely on its expenditures in

prosecuting the defendant for perjury to demonstrate "substantial interference with the

administration of justice." Courts have held that imposing a three-level enhancement

based on such circumstances would in effect raise the base offense level for perjury,

because every perjury conviction would result in a three-level enhancement. See United

States v. Norris, 217 F.3d 262, 273 (5th Cir. 2000) (following the Second, Tenth and

Ninth Circuits in holding that "the expenses associated with the underlying perjury

offense should not form the sole basis for an enhanced sentence under section

2J1.3(b)(2). . . . Otherwise, every perjury conviction would carry the enhancement");

United States v. Duran, 41 F.3d 540, 546 (9th Cir. 1994) (rejecting the district court's

imposition of a three level adjustment "[b]ecause the government could not identify any

expenses in addition to the costs of bringing [the defendants] to trial"). This reasoning is

equally applicable to the obstruction of justice guideline, U.S.S.G. § 2J1.2(b)(2), which

contains the identical requirement that the offense result in "substantial interference with

the administration of justice." Indeed, this logic is particularly appropriate here, where

the obstruction charge was based on the same conduct that resulted in Mr. Libby's

conviction for perjury. See Feb. 21, 2007 A.M. Tr. at 23:18-21 (jury instructions).

               If the government expended any resources as a result of Mr. Libby's

statements to the grand jury, it was to gather evidence used to prosecute Mr. Libby for

lying about his conversations with reporters. The government has conceded that this was

an objective of its investigation. In February 2004, at the Special Counsel's request, the

Justice Department clarified that the Special Counsel had authority to investigate and

prosecute crimes of perjury and obstruction of justice. Feb. 6, 2004 Ltr. from James B.

Comey, Acting Attorney General, to Patrick J. Fitzgerald.

               The government maintains that the expenditures it has identified "were

necessary in order to determine both whether defendant had violated the IIPA or

Espionage Act, as well as whether he had perjured himself or obstructed justice." Gov't

Guidelines Mem. at 19. This argument is unpersuasive. The government realized early

in its investigation that Mr. Libby had not received any information indicating that

Ms. Wilson was a covert agent within the ambit of the IIPA, as the Special Counsel's

August 27, 2004 affidavit reflects. And given that the government never adduced any

evidence that Mr. Libby was told that Ms. Wilson's CIA employment was classified

information, its claim that it was focused on whether Mr. Libby could have violated the

Espionage Act rings hollow.

               The cases cited by the government at pages 20 to 21 of its Guidelines

Memorandum do not support a sentencing enhancement under § 2J1.2(b)(2). In all of

these cases, courts applied the enhancement because expenditures had been incurred in

the prosecution of either different defendants or different underlying charges. See United

States v. Tackett, 193 F.3d 880, 885 (6th Cir. 1999) (expenditures related to "different

charges [and] entirely different defendants"); United States v. Sinclair, 109 F.3d 1527,

1540 (10th Cir. 1997) (expenditures related to the trial of a different defendant); United

States v. Harrington, 82 F.3d 83, 87 (5th Cir. 1996) (expenditures related to "successful

prosecution of [the underlying offense]"). By contrast, the expenditures incurred in this

case were related to the perjury charges against Mr. Libby. No charges were brought

against other defendants, and Mr. Libby was not prosecuted for an underlying offense.

               Leaving aside expenditures by the government that had nothing to do with

Mr. Libby's conduct, and others that were made in order to prosecute Mr. Libby for

perjury and obstruction of justice, the government is left with little, if any, evidence that

Mr. Libby's testimony before the grand jury caused it unnecessarily to expend substantial

government resources. Accordingly, the government's request for a three-level

enhancement under U.S.S.G. §§ 2J1.2(b)(2) and 2J1.3(b)(2) should be rejected.


               For the reasons above, the two sentencing enhancements identified by the

government should not be applied when the Court calculates the applicable Guidelines

offense level as part of its sentencing analysis under 18 U.S.C. § 3553(a).

Dated: May 31, 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

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

Thanks, cboldt!
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