Hat tip to howappealing.law.com, here is an early view of the opinion unsealing further parts of the record in the "Miller and Cooper must comply with Fitzgerald's subpoenas" cases.
Unredacted parts of the opinion follow the Court's rationale for circumscribing the unsealing.
I have not seen any further unredacted parts of Fitzgerald's affidavits in support of his demand for testimony and evidence. As of the time this was converted to text (noon on June 29) the docket sheet at PACER did not yet reflect the presence of this opinion.
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Decided June 29, 2007 No. 04-3138 IN RE: GRAND JURY SUBPOENA, JUDITH MILLER Consolidated with 04-3139, 04-3140 Appeals from the United States District Court for the District of Columbia (No. 04mc00407) (No. 04mc00460) (No. 04mc00461) On Renewed Motion to Unseal of Amici Curiae Dow Jones & Co., Inc and the Associated Press ______ Theodore J. Boutrous, Jr. was on the renewed motion to unseal, the supplemental memorandum in support, and the reply thereto. James P. Fleissner, Deputy Special Counsel, U.S. Department of Justice, was on the response to the renewed motion to unseal. Before: SENTELLE, HENDERSON, and TATEL, Circuit Judges.
2 Opinion for the Court filed PER CURIAM. PER CURIAM: We return once again to whether we should release material redacted from Judge Tatel's February 15, 2005, concurring opinion in this matter, In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), reissued 438 F.3d 1141 (D.C. Cir. 2006), as well as from two ex parte affidavits filed by the Special Counsel. Responding to an earlier motion filed by Dow Jones, et. al., we unsealed portions of the concurring opinion and ex parte affidavits because previously secret grand jury information had been revealed in the indictment of I. Lewis Libby or had been otherwise widely reported. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). With the Libby trial now concluded, Dow Jones has renewed its motion, arguing that additional revelations before and during trial justify the release of the remaining portions of the concurring opinion and ex parte affidavits. Specifically, Dow Jones points to (1) former Deputy Secretary of State Richard Armitage's broadly publicized admission that he disclosed Valerie Plame's identity to reporters Robert Novak and Bob Woodward, see, e.g., CBS Evening News (CBS television broadcast Sept. 7, 2006) (interview with Armitage); David Johnston, Source in C.I.A. Leak Case Voices Remorse and Chagrin, N.Y. TIMES, Sept. 8, 2006, at A26; (2) trial testimony by Novak and Woodward confirming this fact; (3) Armitage's further statements that he had cooperated with the Special Counsel's investigation from its inception, see, e.g., CBS Evening News; Johnston at A26; (4) Novak's and reporter Matthew Cooper's public revelations that they told the grand jury that presidential advisor Karl Rove also revealed Plame's identity to them, see Matthew Cooper, What I Told the Grand Jury, TIME, July 25, 2005, at 38; Robert Novak, My Role in the Plame Leak Probe, CHI. SUN-TIMES, July 12, 2005, at 14; and
3 (5) public statements by Rove's attorney that the Special Counsel had informed Rove that he would not be charged in connection with this investigation, see, e.g., Lawyer: Rove Won't be Charged in CIA Leak Case, CNN.COM, June 13, 2006, http://www.cnn.com/2006/POLITICS/06/13/ rove.cia/index.html. Instead of limiting its request to the specific portions of the concurring opinion and ex parte affidavits that relate to these well-publicized disclosures, Dow Jones argues that there is "an undeniable and overwhelming public interest in full public disclosure" of all redacted materials in their entirety. Pet'r's Reply in Support of Renewed Mot. to Unseal 1. Asserting that due to Armitage's early confession "the Special Counsel already knew the solution to the mystery that had provoked the investigation in the first place," Dow Jones contends that the public has a right to know what justified subpoenaing reporters Judith Miller and Matthew Cooper in the first place. Id. at 23. Although the Special Counsel has no objection to unsealing those portions of the concurring opinion and ex parte affidavits that refer to grand jury information disclosed at the Libby trial, he opposes any further disclosure, even of information already widely reported in the media. The Special Counsel notes that many of the redacted pages discuss "still-secret grand jury matters," including evidence regarding "persons who have not been, and likely will never be, charged with a criminal offense." Gov't's Response to Renewed Mot. to Unseal 910. According to the Special Counsel, moreover, "[p]ublic revelations by persons about their involvement in a grand jury investigation, even the disclosure of some details, do not eliminate the protections" governing grand jury material. Id. at 10. Consistent with these views, the Special Counsel submitted a sealed affidavit identifying the redacted material he believes we can now make public.
4 As we explained in our earlier opinion, the legal principles governing access to grand jury materials are relatively straightforward. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1139 (D.C. Cir. 2006). Federal Rule of Criminal Procedure 6(e) prohibits disclosure of "matter[s] occurring before the grand jury," FED. R. CRIM. P. 6(e)(2), and thus requires that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury," FED. R. CRIM. P. 6(e)(6). Grand jury investigations are conducted in strict secrecy to encourage witnesses to testify "fully and frankly," to prevent those about to be indicted from fleeing, and to ensure that "persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 (1979). Although public access plays an important role in other aspects of the judicial process, "there is no First Amendment right of access to grand jury proceedings," nor do First Amendment protections extend to ancillary materials dealing with grand jury matters, such as Judge Tatel's concurring opinion. In re Motions of Dow Jones & Co., 142 F.3d 496, 499, 502 (D.C. Cir. 1998) (finding no First Amendment right of access to ancillary hearings relating to grand jury matters). Indeed, none of the cases Dow Jones cites in support of its First Amendment argument deals with grand jury proceedings. See Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) (state restrictions on pre-trial attorney speech); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (public access to preliminary hearings); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (public access to voir dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (public access to criminal trials); Wash. Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) (public access to plea agreements).
5 Yet as we have also previously pointed out, "[g]rand jury secrecy is not unyielding" when there is no secrecy left to protect. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). Rule 6(e)(6) requires that "[r]ecords, orders, and subpoenas relating to grand-jury proceedings" remain sealed only "to the extent and as long as necessary to prevent the unauthorized disclosure" of such matters. Moreover, as we held in In re North, 16 F.3d 1234 (D.C. Cir. 1994), when once-secret grand jury material becomes "sufficiently widely known," it may "los[e] its character as Rule 6(e) material." Id. at 1245. Applying these standards, we reject Dow Jones's request to unseal these materials in their entirety. Even if the Armitage revelation created a compelling public interest in them--and it is unclear to us why, as Dow Jones asserts, the Special Counsel's knowledge that one individual leaked Plame's identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information--this is irrelevant given that there is no First Amendment right of access to secret grand jury matters. Rule 6(e) governs what we may or may not release to the public. Insofar as materials concern still-secret grand jury matters, they must remain sealed. That said, as requested by Dow Jones, we will release those redacted portions of Judge Tatel's concurring opinion and the two ex parte affidavits that discuss grand jury matters revealed either during the Libby trial or by grand jury witnesses themselves. Although not every public disclosure waives Rule 6(e) protections, one can safely assume that the "cat is out of the bag" when a grand jury witness--in this case Armitage--discusses his role on the CBS Evening News. In re North, 16 F.3d at 1245; see In re Motions of Dow Jones & Co., 142 F.3d at 505 (noting that where grand jury witness's attorney
6 "virtually proclaimed from the rooftops that his client had been subpoenaed," this fact "lost its character as Rule 6(e) material" (internal quotation marks omitted)). We think the same is true with respect to the disclosures made by Novak, Cooper, and Rove's attorney. We unseal the concurring opinion and the ex parte affidavits, however, only to the extent that they have been previously revealed. Grand jury material not yet publicly disclosed will remain redacted. While we appreciate the Special Counsel's recommendations as to precisely which redacted material we can release, his proposal was far too narrow. At our direction, therefore, the Special Counsel has now prepared and filed with this court a revised affidavit identifying those portions of his sealed ex parte affidavits discussing grand jury matters that have become widely known through whatever source--whether by revelations at the Libby trial or from grand jury witnesses themselves--and can therefore be released. It is therefore ORDERED and ADJUDGED that, pursuant to Circuit Rule 47.1(c), Dow Jones's motion is granted in part and denied in part, and that the redacted opinion and ex parte affidavits shall be placed in the public docket. The formerly redacted portions of Judge Tatel's concurring opinion appear in italics on pages 32-35 and 38-39. So ordered.
This is the further unredacted opinion, where the newly published material is italicized. The only pages presented here are those that include newly unredacted material.
The newly redacted material, absent context, is the following:
Same material below, in its context.
Libby testified that while flying back from an event in Norfolk on Air Force Two, Vice President Cheney dictated several statements relating to the sixteen words controversy, some to be given to reporters on-the- record, others on background and deep background. (I-193- 201.) After landing, [unredacted material contines]
Also, though Libby now claims not to remember Cheney telling him to discuss Plame's employment, he told the FBI during a preliminary interview that it was "possible" that he received such instructions. (I-201, 391.) Perhaps indicating the issue was on Cheney's mind, the vice president's copy of Wilson's op-ed, which Cheney cut out and kept on his desk, carries the following handwritten note: "[H]ad they done this sort of thing before[,] send an ambassador to answer a question? [D]o we ordinarily send people out pro bono to work for us? [O]r did his wife send him on a junket?"
the special counsel has demonstrated that his testimony is essential to charging decisions regarding White House adviser Karl Rove. (See 9/27/04 Aff. at 22-23). Although uncontradicted testimony indicates that Novak first learned Wilson's wife's place of employment during a meeting on July 8 with Deputy Secretary of State Richard Armitage (see 8/27/04 Aff. at 18), Novak said in grand jury testimony that he confirmed Plame's employment with Rove (II-153-54), a longstanding source for his columns (II-121-22). According to Novak, when he "brought up" Wilson's wife, "Mr. Rove said, oh, you know about that too" (II-154) and promised to seek declassification of portions of a CIA report regarding the Niger trip, which Rove said "wasn't an impressive piece of work or a very definitive piece of work" (II-158). In an October 2003 column describing his sources, Novak identified Armitage's comment as an "offhand revelation" from "a senior administration official" who was "no partisan gunslinger." (II-20.) He referred to Rove simply as "another official" who said, "Oh, you know about it." (II-20, 209-11.)
Upon reading Novak's October column, Armitage recognized himself as Novak's source and, as he told the grand jury, "went ballistic." (II-859-60.) He contacted Secretary of State Colin Powell to offer his resignation (II-862-64) and spoke the next day with FBI and Justice Department officials investigating the leak (II-878-79). "I was very unhappy at myself," Armitage testified, "because I had let the President down, I'd let the Secretary down, and frankly, I'd let Ambassador and Mrs. Wilson down. In my view inadvertently, but that's for others to judge." (II-860.)
and Armitage's testimony identifies a document referring to Plame as a "WMD managerial-type," wording Armitage considered "strange," though he "assumed she was another analyst" (II- 783-84, 809, 815-16).
32 me to have [told Libby] that." (I-43, 32.) Asked to describe his "reaction" to Novak's July 14 column, Russert said, "Wow. When I read that--it was the first time I knew who Joe Wilson's wife was and that she was a CIA operative. . . . [I]t was news to me." (I-433.) Also contrary to Libby's testimony, it appears that Libby discussed Plame's employment on several occasions before July 10. (See 8/27/04 Aff. at 11-12.) For example, then-White House Press Secretary Ari Fleischer recalls that over lunch on July 7, the day before Libby's meeting with Miller, Libby told him, "[T]he Vice-President did not send Ambassador Wilson to Niger . . . the CIA sent Ambassador Wilson to Niger. . . . [H]e was sent by his wife. . . . [S]he works in . . . the Counterproliferation area of the CIA." (II-545-47.) Describing the lunch as "kind of weird" (II-590-91), and noting that Libby typically "operated in a very closed-lip fashion" (II-592), Fleischer recalled that Libby "added something along the lines of, you know, this is hush-hush, nobody knows about this. This is on the q.t." (II-546-47.) Though Libby remembers the lunch meeting, and even says he thanked Fleischer for making a statement about the Niger issue, he denies discussing Wilson's wife. (I-108-09, 156, 226-27.) As to the July 12 conversation, [start italics] Libby testified that while flying back from an event in Norfolk on Air Force Two, Vice President Cheney dictated several statements relating to the sixteen words controversy, some to be given to reporters on-the- record, others on background and deep background. (I-193- 201.) After landing, [end italics] Libby called several journalists, including Cooper and Miller. (I-202-03.) As Libby tells it, Cooper, whom he reached first, asked him why Wilson claimed Cheney had ordered the trip, to which Libby responded, "[Y]ou know, off- the-record, reporters are telling us that Ambassador Wilson's wife works at the CIA and I don't know if it's true. . . . [W]e don't know Mr. Wilson, we didn't know anything about his
33 mission, so I don't know if it's true. But if it's true, it may explain how he knows some people at the Agency and maybe he got some bad skinny, you know, some bad information." (I- 203-06.) According to Libby, Miller, too, said something that "triggered" him to mention that "reporters had told us that the ambassador's wife works at the CIA." (I-207-09.) In contrast, in a deposition limited to Cooper's contacts with Libby (see II-32-33, 107), Cooper said that he (Cooper) asked Libby "something along the lines of what do you know about Wilson's wife being involved in, you know, sending him on this mission?" (II-53.) According to Cooper, Libby responded, "[Y]eah, I've heard that too" (II-54), which Cooper took as confirmation (II-81-91). [start italics] Also, though Libby now claims not to remember Cheney telling him to discuss Plame's employment, he told the FBI during a preliminary interview that it was "possible" that he received such instructions. (I-201, 391.) Perhaps indicating the issue was on Cheney's mind, the vice president's copy of Wilson's op-ed, which Cheney cut out and kept on his desk, carries the following handwritten note: "[H]ad they done this sort of thing before[,] send an ambassador to answer a question? [D]o we ordinarily send people out pro bono to work for us? [O]r did his wife send him on a junket?" (I-308-12.) [end italics] Given the evidence contradicting Libby's testimony, the special counsel appears already to have at least circumstantial grounds for a perjury charge, if nothing else. Miller's testimony, however, could settle the matter. If Libby mentioned Plame during the July 8 meeting--and Miller's responses to the documentary subpoena suggest she has notes from that conversation (see 8/27/04 Aff. at 19-20)--then Libby's version of events would be demonstrably false, since the conversation occurred before he spoke to Russert. Even if he first mentioned Plame on July 12, as he claims, inconsistencies between his recollection and Miller's could reinforce suspicions of perjury.
34 What's more, if Libby mentioned Plame's covert status in either conversation, charges under the Intelligence Identities Protection Act, 50 U.S.C. § 421, currently off the table for lack of evidence (see 8/27/04 Aff. at 28 & n.15), might become viable. Thus, because Miller may provide key corroboration or contradiction of Libby's claims--evidence obviously available from no other source--the special counsel has made a compelling showing that the subpoenas directed at Miller are vital to an accurate assessment of Libby's conduct. Regarding Cooper, [start italics] the special counsel has demonstrated that his testimony is essential to charging decisions regarding White House adviser Karl Rove. (See 9/27/04 Aff. at 22-23). Although uncontradicted testimony indicates that Novak first learned Wilson's wife's place of employment during a meeting on July 8 with Deputy Secretary of State Richard Armitage (see 8/27/04 Aff. at 18), Novak said in grand jury testimony that he confirmed Plame's employment with Rove (II-153-54), a longstanding source for his columns (II-121-22). According to Novak, when he "brought up" Wilson's wife, "Mr. Rove said, oh, you know about that too" (II-154) and promised to seek declassification of portions of a CIA report regarding the Niger trip, which Rove said "wasn't an impressive piece of work or a very definitive piece of work" (II-158). In an October 2003 column describing his sources, Novak identified Armitage's comment as an "offhand revelation" from "a senior administration official" who was "no partisan gunslinger." (II- 20.) He referred to Rove simply as "another official" who said, "Oh, you know about it." (II-20, 209-11.) Upon reading Novak's October column, Armitage recognized himself as Novak's source and, as he told the grand jury, "went ballistic." (II-859-60.) He contacted Secretary of State Colin Powell to offer his resignation (II-862-64) and spoke the next day with FBI and Justice Department officials investigating the leak (II-878-79). "I was very unhappy at
35 myself," Armitage testified, "because I had let the President down, I'd let the Secretary down, and frankly, I'd let Ambassador and Mrs. Wilson down. In my view inadvertently, but that's for others to judge." (II-860.) [end italics] * * * * *[REDACTED] * * * *
38 As to the leaks' harmfulness, although the record omits specifics about Plame's work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as "a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years"--representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.) In addition, Libby said that Plame worked in the CIA's counterproliferation division (I-53-55, 245-46), [start italics] and Armitage's testimony identifies a document referring to Plame as a "WMD managerial-type," wording Armitage considered "strange," though he "assumed she was another analyst" (II- 783-84, 809, 815-16). [end italics] Most telling of all, Harlow, the CIA spokesperson, though confirming Plame's employment, asked Novak to withhold her name, stating that "although it is very unlikely that she will ever be on another overseas mission . . . it might be embarrassing if she goes on foreign travel on her own" (II-168-69), a statement that strongly implies Plame was covert at least at some point. While another case might require more specific evidence that a leak harmed national security, this showing suffices here, given the information's extremely slight news value and the lack of any serious dispute regarding Plame's employment. Finally, while it is true that on the current record the special counsel's strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be tantamount to punishing the
39 leak. Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters' qualified privilege, even if his only purpose--at least at this stage of his investigation--is to shore up perjury charges against leading suspects such as Libby [start italics] and Rove. [end italics] In sum, based on an exhaustive investigation, the special counsel has established the need for Miller's and Cooper's testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas. One last point. In concluding that no privilege applies in this case, I have assigned no importance to the fact that neither Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue, revealed Plame's employment, though Cooper wrote about it after Novak's column appeared. Contrary to the reporters' view, this apparent self-restraint spares Miller and Cooper no obligation to testify. Narrowly drawn limitations on the public's right to evidence, testimonial privileges apply "only where necessary to achieve [their] purpose," Fisher v. United States, 425 U.S. 391, 403 (1976), and in this case the privilege's purpose is to promote dissemination of useful information. It thus makes no difference how these reporters responded to the information they received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffee suggested would not be privileged, see 518 U.S. at 18 n.19). In all such cases, because the communication is unworthy of protection, recipients' reactions are irrelevant to whether their testimony may be compelled in an investigation of the source. Indeed, Cooper's own Time.com article illustrates this point. True, his story revealed a suspicious confluence of leaks,
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) v. ) GR. NO. 05-394 (RBW) ) I. LEWIS LIBBY, ) also known as "Scooter Libby," ) Defendant. ) I. LEWIS LIBBY'S REPLY IN FURTHER SUPPORT OF HIS MOTION FOR RELEASE PENDING APPEAL The government is correct that it is the defense's burden to show that Mr. Libby will raise substantial issues on appeal. It errs, however, in suggesting that the Court must conclude that its decisions were incorrect for Mr. Libby to prevail. The government cannot answer this motion by pointing out that this Court has already ruled against Mr. Libby on these issues. Rather, it is sufficient for Mr. Libby to show that the issues he will raise on appeal are "close" and, if resolved in his favor, would require reversal of the conviction or a new trial. While the length of the Court's opinions cannot alone answer the é 3 143(b) inquiry, those opinions are powerful evidence that the issues are thorny, and could well be decided differently on appeal. Moreover, contrary to government's assertion, the principal testimony offered against Mr. Libby (including, perhaps most critically, that of Mr. Russert) was Not corroborated by documents or other witnesses. Rather, this was a he-said, he-said case of competing recollections, one in which the errors Mr. Libby has identified are highly unlikely to be deemed harmless. Mr. Libby has met his burden and is entitled to release pending appeal.' ' As noted in our motion, David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie l I. MR. LIBBY'S CHALLENGE TO THE AUTHORITY OF THE SPECIAL COUNSEL SATISFIES THE RE4UIREMENTS OF é 3143(b) The government virtually concedes that, if this case is controlled by the "direction and supervision" test set forth Edmond v. United States, 520 U.S. 651, 662-63 (1997), then Mr. Libby's Appointments Clause challenge presents (at the least) a "close" question for appeal. It confines its discussion of Edmond largely to the margin, and insists that Morrison v. Olson, 487 U.S. 654 (1988), "dictates" the answer in this case. Govt's Resp. in Opp'n to Defendant's Mot. for Release Pending Appeal at 9-10 ("Resp."). It suggests, moreover, that whatever the scope of his powers, Mr. Fitzgerald's theoretical removability is itself sufficient to render him an inferior officer no matter what test applies, and that the issue is not even close. The government is wrong on all counts.' First, as explained in Mr. Libby's motion, the appellate court could easily conclude that the straightforward rule announced in Edmond - rather than the ad hoc analysis used in Morrison - provides the appropriate framework for review. While Edmond did not expressly overrule Morrison, it made no attempt to conform to its analysis and made a point of stating that Morrison did not "set forth a definitive test for whether an office is 'inferior' under the Appointments Clause." 520 U.S. at 661i see also Morrison, 487 U.S. at 671 (declining to set forth a general test because on the facts of Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here. ' While Mr. Libby relies primarily on his constitutional challenge for purposes of this motion, he expects to present his statutory challenge to the court of appeals as well. For the reasons stated in his motion to dismiss and reply in support thereof, that issue presents a substantial question as well. 2 that case the answer to the principal-inferior officer question was clear). The Court then went on to provide a straightforward rule - stated in generally applicable terms - for making the inferior-officer determination. It gave no indication that this rule should not be applied to Appointments Clause challenges subsequently raised. Thus, while Morrison might dictate the outcome if a court were confronting a special prosecutor whose authority was identical to that of the independent counsel in all material respects, it does not have the binding effect that the government posits. Because the office at issue in Morrison and in this case differ in several significant respects, and because Edmond and Morrison are concededly in "tension," it is at least a close question whether Morrison applies at all. See I. Lewis Libby's Mot. to Dismiss (filed Feb. 23, 2006) (Dkt. 45) at 19-21 (outlining the differences between the appointment of the Special Counsel here and the independent counsel under the Ethics in Government Act). Second, given the sweeping scope of his powers, the appellate court might well conclude that the Special Counsel is a principal officer - under Edmond_Morrison.' To take one example, unlike the independent counsel, Mr. Fitzgerald is not obligated by any statute or regulation to comply with 7ustice Department policies and regulations. We recognize that this Court reached a different conclusion on that question. But, as with its other conclusions regarding the scope of Mr. Fitzgerald's power, it did so by applying principles of agency law. The appellate court might well decide that the application of agency law is misplaced since it assumes the answer to the question presented: whether ' Contrary to the government's assertion, Resp. at 8-9, it has consistently been the defense's position that the Special Counsel is a principal officer even under the Morrison analysis. See Mot. to Dismiss at 18-22. 3 the Special Counsel is an agent of a principal within the Department or a principal himself. In considering this question, the court of appeals might instead rely on the language in Mr. Comey's February 6, 2004 letter, language that actually defines the scope of the appointment and expressly relieves Mr. Fitzgerald of any obligation to comply with 28 G.F.R. é 600 et seq. Those regulations require all other Special Counsel to comply with Department policies and regulations. By virtue of Mr. Comey's letter, Mr. Fitzgerald would appear to be exempt. The appellate court could, moreover, easily find irrelevant the fact that Mr. Fitzgerald is obligated to comply with Department policies in his role as a U.S. Attorney since, in his role as special counsel, he is relieved of numerous other requirements otherwise binding on a U.S. Attorney. The appellate court might also find significant the fact that Mr. Fitzgerald assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may Not be delegated to any other o_cial." (Emphasis added.) That provision reflects Congress's clear concern that, given the extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the Attorney General himself or other specifically enumerated members of the Department. For example, CIPA clearly provides that it is the _ttorNey General who must sign and submit to the court the é 6(c) "affidavit certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and 4 explaining the basis for the classification of such information." Yet, here, it was Mr. Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory scheme. This fact alone is compelling evidence that the Special Counsel, with all of his sweeping powers, qualifies as a principal officer under the Appointments Clause. The government insists that it need not demonstrate "day-to-day supervision" to establish inferior officer status under Edmond. See Resp. at 15 n. 13. That may be true. But Edmond clearly requires "direction and supervision" by a principal officer "at some level." As the foregoing examples show, here there is no supervision at all. Third, contrary to the government's suggestion, Mr. Fitzgerald's theoretical removability is not necessarily dispositive on the inferior-officer question. See Resp. at 13, 14 n. l l. While removability may be a "powerful tool for control," the court of appeals could easily conclude that that power has no practical, and therefore no legal, significance, where it is not coupled with some degree of supervision or direction. Here, there is no oversight or monitoring mechanism in place and, unlike other special counsel, Mr. Fitzgerald has no obligation to report significant developments to the Department. What's more, in a case necessitating numerous in camera and ex parte proceedings under CIPA, Mr. Fitzgerald's conduct cannot be effectively monitored from afar. We are aware of no case where supervision was so wholly lacking, yet the power to remove was held sufficient to render an officer inferior. Whether the appellate court will reach that conclusion here is, in our view, quite doubtful. It is, at the least, a close question. Finally, the government contends - for the first time in this filing - that even if the Special Counsel's appointment were unconstitutional, reversal would not be required because Mr. Libby "was not prejudiced and . . . any error was harmless." Resp. at 15 n. 5 12. The government has never before made this argument, and for good reason. Where, as here, a federal official exercises authority in violation of federal law, his actions must be invalidated regardless of whether specific prejudice is shown. See rouNg v. United States e_ rel. VuittoN et Fils S._., 481 U.S. 787, 809-14 (1987) (plurality) (contempt convictions must be reversed, regardless of any showing of harm, where district court erroneously appoints counsel for an interested party to prosecute alleged violations of a court order)i id. at 815-25 (Scalia, 7., concurring in the judgment) (concluding that appointment of counsel to prosecute contempt charges exceeded district court's power under Article III and that convictions therefore must be reversed)i NguyeN v. United States, 539 u.s. 69, 79 (2003) _udgment of court of appeals constituted in violation of federal law must be invalidated without assessment of prejudice)i cf. United States v. Providence 7ourNa1 (To., 485 u.s. 693 (1988) (dismissing case for want of jurisdiction because special prosecutor lacked the statutory authority to represent the United States in a petition for certiorari). Indeed, the D.G. Circuit has already indicated that a violation of the Appointments Clause qualifies as structural error and therefore cannot be subjected to harmless error review. See Landry v. Fed. Depositions. (Torp., 204 F.3d l 125, l 130-32 (D.G. Cir. 2000). Nor can it be said that Mr. Fitzgerald's unsupervised and undirected exercise of principal-officer power has not made a difference in this case. As Special Counsel, he has made numerous crucial decisions - implicating national security, First Amendment interests, and the appropriate use of prosecutorial resources - that are typically subject to oversight and approval by a principal officer properly appointed by the President with the advice and consent of the Senate. Here, by the express terms of Mr. Fitzgerald's 6 appointment, no such oversight or review occurred. If, as Mr. Libby contends, the appointment of Mr. Fitzgerald and his exercise of the authority conferred upon him was unconstitutional, the remedy is dismissal of the indictment. II. EACH OF MR. LIBBY'S MEMORY DEFENSE ISSUES PRESENTS A CLOSE 4UESTION, WHICH GOULD EASILY BE DECIDED DIFFERENTLY ON APPEAL. The government labors for nineteen pages (Resp. at 16-35) to show that Mr. Libby's memory defense issues do not present close questions. One theme runs through the government's argument: it insists that the Court's memory defense rulings represent "routine" evidentiary decisions that will be routinely affirmed. E.g., id. at 18 n.6, 3 l, 33, 35. But there was nothing "routine" about the Court's decision to exclude Dr. Bjork's testimony, a ruling for which the Court found "no clear case authority, or absolute rule." United States v. Libby, 461 F. Supp. 2d 3, 8 n.6 (D.D.G. 2006). There was nothing "routine" about the Court's "tedious and complex expedition" through CIPA terrain "largely uncharted by written precedent." United States v. Libby, 467 F. Supp. 2d 20, 40 (D.D.G. 2006). And there was nothing "routine" about the Court's decision to exclude the government's admission and significant portions of the CIA briefers' testimony when Mr. Libby exercised his right not to testify. A. Expert testimony on memory. As it has throughout the case, the government concedes Dr. Bjork's qualifications, and it does not dispute the scientific validity of the findings concerning memory on which he sought to testify. Resp. at 18. The government's argument, boiled down to its core, is that the defense failed to prove that Dr. Bjork's testimony would "assist the trier of fact," as Rule 702 requires--and that, indeed, the admissibility of Dr. Bjork's concededly 7 reliable evidence about the central issue in the case does not even present a close question. We disagree. .To begin with, it is an odd notion that jurors would grasp as a matter of common experience aspects of human memory that Dr. Bjork and other scientists at some of this country's finest universities, including Harvard, Stanford, UCLA, and others, have spent decades exploring through rigorous experimentation and publication in peer-reviewed journals. See United States v. Libby, 461 F. Supp. 2d 3, 8 n.6 (D.D.G. 2006) (citing scientific literature underlying Dr. Bjork's proposed testimony). Why would eminent researchers and their institutions devote enormous time and resources to discovering characteristics of memory that everyone knows already as a matter of common sense? The government never answers this obvious question. Instead, it rehashes a series of purported flaws in the studies that the defense offered through Dr. Lokus to show that jurors do not intuitively grasp key aspects of memory. Resp. at 21. In its focus on the minutiae of the studies, the government misses the larger evidentiary picture that emerged from the hearing on Dr. Bjork's testimony. Through Dr. Lokus and the studies, the defense showed that substantial numbers of potential jurors do not understand important aspects of memory. By contrast, the government presented no evidence of its own to show (in the words of the Rule 702 advisory committee note that the government quotes, Resp. at 19-20 n.2O) that "the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Dr. Bjork indisputably has "a specialized understanding" of human memory, and the government has not refuted the defense showing that many "untrained laym[e]n" are Not 8 qualified to determine "intelligently and to the best possible degree" the memory issues that this case presents. The government recites the Court's conclusion that the studies on which Dr. Lokus relied had insufficient probative value because they "'[did] not focus on the precise issues before the Court."' Resp. at 21 (quoting Libby, 461 F. Supp. 2d at 12). But the court of appeals may well find that the standard of proof the Court required on the "assist the trier of fact" prong of Rule 702--a methodologicially perfect study addressed to prospective jurors' understanding of"the precise issues before the Court"--is far too onerous. Indeed, the government cites no case, and we have found none, that requires any such showing. Courts routinely admit expert testimony based on the assumption, unsupported by evidence, that prospective jurors may not fully understand the subject at issue without the expert's testimony.4 Here, the defense went far beyond mere assumption and, indeed, far beyond the showing made by the proponent of any expert testimony in any case we have found. The government, echoing the Court, insists that the jurors learned everything they needed to know about memory from the cross-examination of government witnesses and from the Court's instruction listing factors the jurors could consider in assessing memory. Resp. at 22-24. We will not rehash our arguments on this point. We merely note that the 4 For example, the government (Resp. at 19-20) cites with approval United States v. Long, 328 F.3d 655 (D.G. Cir. 2003). In Long, the court of appeals affirmed the admission of a government expert's testimony about the behavior of certain sex offenders. See id. at 665-68. The opinion contains no suggestion that the government offered any evidence of any kind to show that jurors do not understand such behavior as a matter of common knowledge. The district court and the court of appeals appear merely to have assumed the absence of such a common understanding. The defense here made a far more substantial showing that Dr. Bjork's testimony would "assist the trier of fact" than the government did with respect to the expert testimony in Long. 9 court of appeals may well find that the trial's truth-finding function would be far better served by providing jurors with relevant scientific information directly through expert testimony than by asking the jurors to infer that information from observing cross- examinations or from jury instructions that list factors the jurors may consider but provide no guidance in how to apply or weigh them. The exclusion of Dr. Bjork's testimony presents, at the least, a close question. B. Substitutions Under CIPA é 6(c) The government's argument concerning substitutions under CIPA é 6(c) is wrong in three principal respects. First, the government insists that the Court applied a legal standard favorable to the defense and that its substitution rulings thus can only be reviewed for abuse of discretion. Resp. at 28. We disagree. The Court equated the "substantially the same ability" standard under CIPA é 6(c) with the Sixth Amendment right to present a defense. See United States v. Libby, 467 F. Supp. 2d 20, 25-28 (D.D.G. 2°°6). Applying the Sixth Amendment standard, the Court required Mr. Libby to accept substitutions that eliminated facts and even entire subjects that the Court had previously found relevant and admissible and that reduced much of the remaining information to bland generalities. We expect to argue on appeal that the Court erred in equating the CIPA é 6(c) "substantially the same ability" standard with the Sixth Amendment right to present a defense. Congress rejected a "fair trial" CIPA substitution standard similar to the Court's approach in favor of the more stringent "substantially the same ability" standard. It adopted the latter standard "to make it clear that alternate disclosure was to be allowed only if the Court found that it was, in effect, equivalent disclosure." H. Rep. No. 96-83 l, 10 pt. l, 96th Gong., 2d Sess. 20 (1980) (emphasis added).' Thus, a court may require the defense to use a substitution "in those circumstances where the use of the specific classified information, rather than the statement or summary, is of no effective importance to the defendant." Id. at 19 (emphasis added). As the Conference Committee Report on CIPA concluded, the "substantially the same ability" standard "is intended to convey a standard of substantially equivalent disclosure," although "precise, concrete equivalence is not intended." H. Conf. Rep. 96-1436, 96th Gong., 2d Sess. 12 (1980). Second, the government errs in arguing that the substitutions the Court ultimately approved met the CIPA é 6(c) standard. The Court itself repeatedly rejected several of the government's key substitutions before finally accepting them in its December 8 ruling. At a closed hearing on November 29, the Court declared that Mr. Libby could not receive a fair trial if it accepted some of the substitutions that it then approved just over a week later. E.g., T. l 1/29/06 at 24. The court of appeals may well find that the Court's November 29 assessment was correct and its December 8 decision constituted error. Third, the government insists that Mr. Libby cannot complain about the Court's substitution rulings because he did not use the substitutions available to him. Resp. at 27. Contrary to the government's assertion, however, the defense did not "fail to make use of most of th[e] substitutions at trial." Id. The testimony of7ohn Hannah about Mr. Libby's national security responsibilities, which the government touts elsewhere (Resp. at 24), consisted largely of a series of leading questions read verbatim from the narrative substitutions that the Court required the defense to accept. T. 2/13/07 a.m. at 57-89. The ' See Memorandum of Defendant I. Lewis Libby on Legislative History of CIPA Substitution Provision (filed Nov. 14, 2006) (Docket no. 183) (discussing legislative history of CIPA é 6(c)). l l briefers' stipulation similarly embodied some of the substitutions, and the additional testimony Mr. Libby proffered from the briefers (but which the Court excluded) likewise rested heavily on the substitutions. We expect to argue on appeal that if the Court had applied CIPA é 6(c) as Congress intended, both the Hannah testimony and the briefers' evidence would have been far more powerful. At a minimum, the question is a close one. G. The Government Statement Admitting Relevant Facts. The government insists that its "statement admitting relevant facts" was both conditioned on Mr. Libby's testimony and irrelevant without that testimony. Resp. at 29- 32. We address the relevance issue below in connection with the CIA briefers' testimony. We focus here on the government's claim that it conditioned its admission on Mr. Libby's testimony. The government's contention lacks any basis in the record. The government was on notice from the beginning of the CIPA proceedings that Mr. Libby might not testify. T. 9/27/06 at 7. Despite this notice, it never hinted during those proceedings that the "statement admitting relevant facts" was conditioned on Mr. Libby's testimony. E.g., T. l 1/7/06 at 10. The government never hinted at such a condition when, at a hearing shortly before trial, the defense announced its intention to read the statement in opening. T. 1/10/07 at 29-30. It never hinted at such a condition when the Court and the defense asked potential jurors during voir dire how they would react if Mr. Libby did not testify. E.g., T. 1/16/07 a.m. at 23, 108, llli T. 1/17/07 a.m. at 123i T. 1/17/07 p.m. at 31, 44. And it never hinted at such a condition when defense counsel opened with the statement. T. 1/23/07 p.m. at 48-51. 12 It is not surprising that the government never conditioned its admission on Mr. Libby's testimony at trial. Any such condition would have been illogical. An admission admits the facts contained in it. It would have made no sense for the government to admit the matters contained in the "statement admitting relevant facts" and then challenge its own admissions through cross-examination of Mr. Libby. For example, the admission conceded that Mr. Libby was "concerned" or "very concerned" about three specific matters during the summer of2OO3. T. 1/23/07 p.m. at 50-51. Having admitted that Mr. Libby was concerned about these matters, the government could not reasonably have expected to show the contrary at trial, on cross-examination of Mr. Libby or by any other means. In this respect, the admission stands in stark contrast to the unclassified summaries the government provided--the second form of substitution that CIPA é 6(c) contemplates.6 The summaries admitted nothing they merely provided an approved form in which evidence could be presented to the jury, either through a witness (such as Hannah) or a document. The government was free to challenge the information contained in the summaries; it was not free to disavow its own admissions. Given the unconditional nature of the "statement admitting relevant facts," the Court should not have permitted the government to withdraw it mid-trial, after defense counsel had read it in opening and relied upon it in structuring the defense. Even in the 6 Under CIPA é 6(c)(1)(A), the government may propose as a substitution for relevant and admissible classified information a "statement admitting relevant facts that the specific classified information would tend to prove." Under CIPA é 6(c)(1)(B), the government may propose as a substitution "a summary of the specific classified information." The government's admission constituted the first type of the substitution. The summaries it offered for the other classified information that the district court found relevant and admissible constituted the second type of substitution. 13 civil context, parties cannot withdraw or modify admissions when the opposing party would suffer prejudice. See, e.g., RaiNbolt v. 7ohNsoN, 669 F.2d 767, 768-69 (D.G. Cir. 1981). Indeed, in civil cases a court may grant a motion to withdraw an admission after trial has begun only to prevent a "manifest injustice." Baker v. Potter, 212 F.R.D. 8, 13 n.5 (D.D.G. 2002)i see, e.g., _mericaN _utomobile _ssociatioN v. __ Legal (TliNic, 930 F.2d 1117, 1120 (5th Cir. 1991). The government did not even meet the civil "manifest injustice" standard for withdrawing or modifying its admission. Exclusion of the admission presents, at the least, a close question. D. The Gm Briefers' Testimony. The government contends that the Court's exclusion of much of the CIA briefers' testimony under Rules 401 and 403, including testimony about Mr. Libby's briefings on dates the Court recognized as critical, does not present a close question on appeal. Resp. at 32-34. We disagree. Evidence is relevant under Rule 401 if it "ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401 (emphasis added). The evidence of the terrorist threats and other urgent national security matters that the morning intelligence briefings covered during the two key weeks easily satisfied the "liberal standard" of Rule 401. United States v. Leonard, 439 F.3d 648, 651 (loath Cir.), cert. denied, 126 S. Gt. 2948 (2006). The evidence went directly to Mr. Libby's state of mind, "[a] fact that is of consequence to the determination of the action." This Court acknowledged pretrial that "there can be no question that what otherwise allegedly consumed the defendant's time 14 and attention during [the week of7une 9 through 14, 2003] is relevant and extremely probative to the prosecution and defense of this action." United States v. Libby, 467 F. Supp. 2d l, 9-10 (D.D.G. 2006). Similarly, the Court held that the week of7uly 6 through 12, 2003 is "critical to the case, and the events occurring during this week are relevant and highly probative." Id. at 10. Evidence of the morning intelligence briefings for these crucial weeks was relevant regardless of whether Mr. Libby testified. Courts have often recognized that both the prosecution and the defense may present circumstantial evidence of the defendant's state of mind. Indeed, "as a general rule most evidence of intent is circumstantial." United States v. Salameh, 152 F.3d 88, 143 (2d Cir. 1998)i see, e.g., United States v. McPherson, 424 F.3d 183, 189 (2d Cir. 2005) ("The law . . . recognizes that the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom.")i Redbook, Instruction 3.02 ("[Y]ou may infer the defendant's knowledge from the surrounding circumstances.")i Modern Federal 7ury Instructions, Instruction 6.06 (2006) ("[K]nowledge [is] usually established by surrounding facts and circumstances as of the time the acts in question occurred, or the events took place, and the reasonable inferences to be drawn from them."). Here, the Schmall and Hannah testimony about the national security matters that Mr. Libby found important readily satisfied the "minimal level of probability" that Rule 401 requires, Leonard, 439 F.3d at 651i testimony from Mr. Libby himself to that effect was not necessary. Nor (we will argue on appeal) could the Court properly exclude the morning intelligence briefers' testimony under Rule 403. As the Court recognized pretrial, Rule 15 403 "is an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence." Libby, 467 F. Supp. 2d at 20i see also, e.g., United States v. Douglas, 482 F.3d 591, 600 (D.G. Cir. 2007) ("Rule 403 tilts, as do the rules as a whole, toward admission of evidence in close cases . . . .") (quotation omitted). The morning intelligence substitutions had great probative force, as the Court recognized during the CIPA process. None of the Rule 403 dangers "substantially outweigh[ed]" that probative value. The Court trusted limiting instructions to guide the jury's consideration of the potentially prejudicial circumstantial state of mind evidence that it admitted at the prosecution's request. Such instructions would have adequately addressed any legitimate concerns about jury confusion or speculation arising from the morning intelligence briefing substitutions. The exclusion of the CIA briefers' testimony presents, at a minimum, a close question. E. Harmless Error. Finally, the government insists that the decisions regarding the memory defense, even if erroneous, are harmless - so clearly harmless, in fact, that those issues are not even close. Resp. at 35. The government bases this contention on its view that the evidence of guilt was so overwhelming that admission of the memory defense evidence would not have affected the verdict. The government is wrong. The Court correctly recognized before trial that "the memory and recollection of the principal players will undoubtedly play a substantial role in the assessment of the defendant's culpability in the upcoming trial." Libby, 461 F. Supp. 2d at 5. The trial was exceptionally hard-fought, largely over the central question whether Mr. Libby deliberately lied to the FBI and the grand jury or innocently confused, 16 misrecollected, or forgot the snippets of conversation involving Ms. Wilson. The jury deliberated for all or part often days before reaching a verdict, and it took that long without even having the benefit of the erroneously excluded evidence. On this record, the government cannot satisfy the (ThapmaN "harmless beyond a reasonable doubt" standard for constitutional error or even the less demanding standard of Fed. R. Grim. P. 52(a) for non-constitutional error. III. THE GOVERNMENT OFFERS NO REMOTELY PLAUSIBLE DEFENSE OF THIS COURT'S REFUSAL TO PERMIT THE DEFENDANT TO GALL ANDREA MITCHELL The government does not dispute that Tim Russert's testimony was crucial to every single count of conviction. Nor does it dispute that Mr. Russert's denial of Mr. Libby's account was closely linked to his stated belief that he could Not have told Mr. Libby about Ms. Wilson because he did not learn about her role until he read the Novak column. The government nevertheless contends that this Court's Mitchell ruling is not even a "close" question. As we show below, the government's arguments are flawed at every turn. A. The government misreads 7ohNsoN and the other court of appeals decisions. As the government acknowledges, it was the government in United States v. 7ohNsoN, 802 F.2d 1459 (D.G. Cir. 1986), that sought to call and impeach its trial witness with inadmissible hearsay. Not only that, the prior statement in 7ohNsoN was a post-arrest statement by a co-conspirator spreading responsibility to the defendant - a classically untrustworthy form of hearsay. To make matters worse, there was NO apparent corroboration for the truth of the prior statement that the prosecutors in 7ohNsoN were seeking to admit against the defendant. 17 In the government's view, however, none of these distinctions makes a difference. As the government reads 7ohNsoN, the D.G. Circuit intended to adopt a broad rule of law forbidding a party - any party - from calling and impeaching a witness he knows will disavow a prior inconsistent statement. That simply makes no sense. Cross-examination would swiftly cease to be "the greatest engine for the discovery of truth ever invented" if criminal defendants were forbidden to challenge a witness's lawyer's claim that the witness's testimony will be "X" or "Not X" It is one thing to forbid the government from calling a witness simply to impeach; it is quite another to impose that restriction on the defense. Criminal defendants, after all, have Sixth Amendment rights. The government doesn't. Not surprisingly, then, the D.G. Circuit has never once cited 7ohNsoN as support for any limitation on a criminal defendant's right to call and impeach a witness at trial. And although one would scarcely know this from the government's brief, the great weight of the remaining cases cited by the government hold that it is the prosecutor who is forbidden in a criminal case to call a witness simply to place inadmissible evidence before the jury. The courts could hardly have stated the distinction more plainly. Thus, for example, in United States v. MorlaNg, 531 F.2d 183 (4th Cir. 1975), the Fourth Circuit distinguished one of its prior decisions - which had permitted a defendant to impeach his own witness - precisely because "constitutional considerations which may have been present in those cases are obviously not involved where the government calls a witness having in mind no other apparent purpose than to elicit from him testimony which may thereafter be impeached." Id. at 189. As the Fourth Circuit explained more recently (in reversing a conviction because of similar government impeachment 18 practices), "[a]t a criminal trial, . . . there are limits on the Government 'spower to impeach its own witnesses." United States v. INce, 21 F.3d 576, 579 (4th Cir. 1994) (emphasis added). "When the prosecution attempts to introduce a prior inconsistent statement to impeach is own witness, the statement's likely prejudicial impact often substantially outweighs its probative value. . . ." United States v. Buffalo, 358 F.3d 519, 525 (8th Cir. 2004) (emphasis added). Conversely, the Eighth Circuit noted, "[w]hen the defendant seeks to introduce a prior inconsistent statement for impeachment purposes, the dangers identified above are not implicated." Id. (emphasis added). Surveying the case law generally, 7udge Posner stated that "all circuits that have considered the issue" have accepted "the limitation that we have quoted on the prosecutor 's rights under Rule 607" - specifically, that "it would be an abuse of the rule in a criminal case,for the prosecution to call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence - or, if it didn't miss it, would ignore it." United States v. Webster, 734 F.2d l 191, l 192 (7th Cir. 1984) (emphasis added). Accord, United States v. PetermaN, 841 F.2d 1474, 1479 (loath Cir. 1988) ("a prosecutor may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable") (emphasis added). The government frets that "allowing the defense to call Ms. Mitchell posed the unacceptable risk that the jury would improperly consider Ms. Mitchell's October 3, 2003 statement for its truth." Resp. at 39. But that's why trial judges give limiting instructions - which juries are conclusively presumed to follow. See Richardson v. Marsh, 481 U.S. 200, 208 (1987)i Lakeside v. Oregon, 435 u.s. 333, 340 n.ll (1978) ("[W]e have not yet 19 attained that certitude about the human mind which would justify us in . . . a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court"). The Court applied that principle repeatedly in admitting evidence offered by the government against Mr. Libby in this case. The court of appeals might well conclude that it could (and should) have done the same for Mr. Libby with respect to Ms. Mitchell's testimony. B. The defense did NO_ waive its right to challenge Ms. Mitchell's claim that she would disavow her October 2003 statement. Prior to calling Ms. Mitchell as a witness, the Court provided the defense with an opportunity to examine the witness outside the presence of the jury to assess whether she would, as her lawyer represented, disavow her prior statement. The defense declined that opportunity; as a consequence, the government now contends (Resp. at 36 n.32), Mr. Libby "waive[d] . . . any argument that [Ms. Mitchell] would have testified inconsistently with her attorney' s representation." Not so. There is no rule of practice or procedure that requires litigants to pre- screen their examinations on pains of waiver. So long as a party has a good-faith basis for calling the witness in the first place - and here, Mr. Libby plainly did - he has no duty to do a test run before putting the witness on the stand. The entire premise of the "test run" is flawed: If the defense had taken the Court up on its offer, and discovered outside the presence of the jury that Ms. Mitchell likely would attempt to disavow her prior statement, counsel still would have been entitled to actually put Ms. Mitchell on the stand and attempt to shake her story. And even if Ms. Mitchell thereafter persisted in her disavowal under fire, the jury could well have disbelieved her. That is precisely what the D.G. Circuit suggested in United States v. 7eNkiNs, 928 F.2d l 175 (D.G. Cir. 1991) - a 20 post-7ohNsoN case that the government omits even to acknowledge in its response, much less distinguish. The short of the matter is this: The defense cannot be deemed to have waived any rights by declining to participate in a test run that it had no legal duty to undertake in the first place. G. The preclusion of Ms. Mitchell will not be disregarded as harmless on appeal. The government contends, finally, that the preclusion of Ms. Mitchell is not a "close" question because the court of appeals is likely to treat it as harmless error. It bases this surmise on two assertions: first, that it is "fantastical" (Resp. at 41) to suppose that the jury might have disbelieved Mr. Russert if Ms. Mitchell had been allowed to testify, and second, that the error will wash away "in light of the overwhelming evidence of defendant's guilt" (Resp. at 42). Both claims are entirely unpersuasive. There is, first and foremost, nothing "fantastical" about the prospect that the jury might have used Ms. Mitchell's testimony as basis for rejecting Mr. Russert's assertions. It bears repeating that Mr. Russert grounded his contradiction of Mr. Libby in his belief that he could Not have told Mr. Libby about Ms. Wilson prior to the Novak column. Yet his testimony also establishes that if one of his colleagues - Ms. Mitchell herself or David Gregory - learned about Ms. Wilson in time to tell him, he or she likely would have done so. The evidence established that Mr. Gregory was told about Ms. Wilson in time to tell Mr. Russert. If Ms. Mitchell had been allowed to testify, and had the jury resolved any credibility dispute in Mr. Libby's favor, the evidence, taken as a whole, would have been powerful support for Mr. Libby's version of the Russert conversation. But the defense was blocked even from treading down that path. Like any other 21 wholesale curtailment of a line of examination, the court of appeals will require the government to demonstrate harmlessness beyond a reasonable doubt. See Davis v. _laska, 415 u.s. 308 (1974). Moreover, given the centrality of Mr. Russert's testimony to the government's entire case, it is inconceivable that the preclusion of Ms. Mitchell's testimony, if error, would be disregarded as harmless. At the very least, that is an exceedingly "close" question. CONCLUSION For the foregoing reasons and those stated in our motion, the requirements of é 3 143 are overwhelmingly satisfied and Mr. Libby is entitled to release pending appeal of his conviction. Dated: 7une 13, 2007 Respectfully submitted, /s/ /s/ Theodore V. Wells, 7r. William H. 7effress, 7r. (DG Bar No. 468934) (DG Bar No. 041 152) 7ames L. Brochin Alex 7. Bourelly (DG Bar No. 455456) (DG Bar No. 441422) Paul, Weiss, Rimind, Wharton Baker Botts LLP & Garrison LLP 1299 Pennsylvania Avenue, NW 1285 Avenue of the Americas Washington, DG 20004 New York, NY 10019-6064 Tel: (202) 639-7751 Tel: (212) 373-3089 Fax: (202) 585-1087 Fax: (212) 373-2217 /s/ /s/ 7ohn D. Gline Lawrence Robbins (D.G. Bar No. 403824) (D.G. Bar No. 420260) 7ones Day Robbins, Russell, Englert, Orseck and 555 Galifornia Street, 26th Floor Untereiner San Francisco, GA 94104 1801 K Street, NW Tel: (415) 626-3939 Washington, DG 20006 Fax: (415) 875-5700 Tel: (202) 775-4501 22 23
Libby's reply is due at 9:00 a.m. on June 13, the motion hearing is scheduled for 11:30 a.m., June 14th.
Case 1:05-cr-00394-RBW Document 366-1 Filed 06/12/2007 Page 1 of 1 ERRATA SHEET The following typographical errors, which were in the version of the Government's Response in Opposition to Defendant's Motion for Release Pending Appeal filed earlier today, were corrected in this version [Doc 366] of the brief: P. 2: Changed "I" to "i" in the first full paragraph. P.8, FN8: Inserted a period between "Officers of the United States" and "That said." P. 11: Changed "violates" to "violated" in the 6th line of text from the top of the page. P. 25: Changed "whatever" to "whatsoever" in the 5th line of text from the top P. 28: Inserted a period after "precedent" and capitalized "Id." in the 8th line of text from the top of the page. P. 37: Deleted the word "CITE" in the 3rd line of text from the bottom of the page. P. 39: Deleted "to" after "concerning" in the 6th line of text from the bottom of the page. P. 41: Deleted the word "a" in between "that" and "the" in the 7th line of text from the bottom of the page.
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 1 of 43 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) CR. NO. 05-394 (RBW) v. ) ) I. LEWIS LIBBY, ) also known as Scooter Libby ) GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special Counsel, respectfully submits this Response in Opposition to Defendant's Motion for Release Pending Appeal. INTRODUCTION Defendant I. Lewis Libby was charged in an indictment with obstruction of justice, making false statements to federal investigators, and perjury. During the trial on those charges, nine witnesses provided testimony that contradicted the defendant's grand jury testimony and FBI interviews. The recollections of each of these witnesses was corroborated either by documents or by the testimony of other witnesses. The government also introduced extensive evidence of the defendant's motive to lie. On March 6, 2007, the jury convicted defendant on four of the five counts in the indictment. At a sentencing hearing conducted on June 5, 2007, this Court indicated that it would enter defendant's sentence on June 14, 2007. At the same hearing, defendant orally requested that he be permitted to remain on bond pending the resolution of his appeal. On June 7, 2007, defendant filed a written motion for release pending appeal. In his motion, defendant argues that on appeal he will challenge: (a) the validity of the Special Counsel's exercise
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 2 of 43 of authority; (b) the Court's rulings related to evidence defendant sought to introduce in support of his memory defense; and (c) the Court's exclusion of the testimony of Andrea Mitchell. As demonstrated below, none of these issues is "substantial" or likely to result in reversal or in an order for a new trial. Therefore, the motion should be denied. ARGUMENT I. LEGAL STANDARD APPLICABLE TO RELEASE PENDING APPEAL Title 18, United States Code, Section 3143(b) governs the Court's determination of whether the defendant may be granted release pending appeal. United States v. Perholtz, 836 F.2d 554 (D.C. Cir. 1987)(per curiam). The statute provides in pertinent part that a defendant who is not a flight risk or a danger to the community, ^1 and who has been sentenced to a term of imprisonment, "shall" be detained pending appeal, unless a court finds that the appeal "raises a substantial question of law or fact likely to result in (I) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." 18 U.S.C. § 3143(b). Prior to the enactment of Section 3143(b), there existed a presumption in favor of granting convicted defendants bond pending appeal. Section 3143(b) was enacted by Congress in 1984 for the express purpose of reversing that presumption. S. Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in U.S. Code Cong. & Ad. News 3182, 3209. Rather than permitting defendants who appeal their convictions to be released on bond as a routine matter, the new statute requires the court to permit bond pending appeal only upon "an affirmative finding that the chance for reversal is 1 The government does not contend that defendant poses a risk of flight or danger to the community, or that defendant's appeal is frivolous, or brought solely for purposes of delay. 2
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 3 of 43 substantial." Id. at 3210. This requirement "assure[s] that post-conviction bail is confined to those who are among the more promising candidates for ultimate exoneration." United States v. Schoffner, 791 F.2d 586, 589 (7th Cir. 1986). The new presumption of confinement pending appeal "gives recognition to the basic principle that a conviction is presumed to be correct." S. Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in U.S. Code Cong. & Ad. News 3182, 3209. The change in the law also reflects Congress's appreciation that "[r]elease of a criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law, especially in those situations where an appeal of the conviction may drag on for many months or even years." Id. In other words, Congress has recognized that "harm results not only when someone is imprisoned erroneously, but also when execution of sentence is delayed because of arguments that in the end prove to be without merit." Schoffner, 791 F.2d at 589. Consistent with the reversal of the presumption, Congress intended "that in overcoming the presumption in favor of detention, the burden of proof [would rest] with the defendant." S. Rep. No. 225, 98th Cong., 1st Sess. 26, reprinted in U.S. Code Cong. & Ad. News 3182, 3210. See also id. at 3210, n. 86. Section 3143(b)(1)(B) requires a two-part inquiry: "(1) Does the appeal raise a substantial question? (2) If so, would the resolution of that question in the defendant's favor be likely to lead to reversal?" Perholtz, 836 F.2d at 555. With respect to the first prong of this test, the D.C. Circuit has held that a "substantial question" must be "a `close' question or one that very well could be decided the other way." Perholtz, 836 F.2d at 555-56. ^2 In determining whether the question raised 2 After considering two competing standards for determining substantiality adopted in various other circuits, the court in Perholtz adopted the more demanding one, because, in its view, it appeared "better to accord with the expressed congressional intent to increase the required showing 3
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 4 of 43 on appeal is a "close" one, the trial court must "return its attention to its own analysis of these issues at earlier stages of the proceedings" and "essentially evaluate the difficulty of the question he [or she] previously decided." Schoffner, 791 F.2d at 589 (applying the same standard for "substantiality" that is applied by the D.C. Circuit). This function nevertheless has a "predictive character because appeals with more merit have a correspondingly greater `chance' of resulting in reversal." Id. Even if a question is determined to be "substantial" within the meaning of § 3143(b), the defendant must also show, as a second step, that a resolution of that question in the defendant's favor would be likely to lead to reversal or the grant of a new trial. This aspect of the inquiry requires the Court to consider the potential impact of a decision in defendant's favor in light of the nature or type of question involved. E.g., United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985) (the second prong focuses on the type of question that must be presented). "[H]armless errors, errors that have no prejudicial effect, or errors that have been insufficiently preserved," which would not result in reversal or a new trial, do not satisfy the applicable standard. See United States v. Bilanzich, 771 F.2d 292 (7th Cir. 1985) (affirming denial of motion for bond pending appeal based on purported illegally seized evidence where, not only was the question of the seizure's legality not close, but the on the part of the defendant." Perholtz, 836 F.2d at 555-56. The standard adopted by the court in Perholtz has been adopted in all circuits except the Third and the Ninth. See United States v. Bayko, 774 F.2d 516, 523 (1st Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985); United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991); United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985); United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986); United States v. Powell, 761 F.2d 1227, 1231-32 (8th Cir. 1985); United States v. Affleck, 765 F.2d 944, 952 (10th Cir. 1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985). The standard applied in the Third and Ninth Circuits interprets the term "substantial" to mean that the question is "fairly debatable," "fairly doubtful," or "one of more substance than would be necessary to a finding that it was not frivolous." See United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985); United States v. Messerlian, 793 F.2d 94, 96 (3d Cir. 1986). 4
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 5 of 43 conviction would not have been reversed in any event because none of the seized evidence was admitted at trial). Similarly, questions that address matters that are not "integral to the merits," or to which deferential standards of appellate review apply, are substantially less likely to satisfy the second prong of the inquiry required by § 3143(b). See, e.g., United States v. Powell, 761 F.2d 1227 (8th Cir. 1985)(en banc)(substantial question must be " integral to the merits"); United States v. Day, 433 F. Supp. 2d 54, 56-57 (D.D.C. 2006)(Friedman, J.)(denying motion for bond pending appeal, and noting that evidentiary rulings, which are reviewed for abuse of discretion, are less likely to result in reversal than rulings on issues of law, which are reviewed de novo). ^3 Thus, while defendant has argued (Def. Mot. at 2-3) that it is not necessary for a judge to predict the probability of reversal in order to grant bond pending appeal, the governing statute clearly requires that the court find that an issue cited by defendant presents a "substantial" chance of reversal. See S. Rep. No 225, 98th Cong., 1st Sess. 27, reprinted in 1984 Code Cong. & Ad. News 3182, 3210 (noting that § 3143 "requires an affirmative finding that the chance for reversal is substantial.") 3 See also United States v. Reich, 420 F. Supp. 2d 75, 90 n.6 (E.D.N.Y. 2006) (denying motion for bond pending appeal where defendant sought to appeal evidentiary ruling with respect to which district court was afforded discretion under Fed. R. Crim. P. 403); United States v. Kemp, 379 F. Supp. 2d 690 (E.D. Pa. 2005)(denying bond pending appeal where rulings related to jurors were matters within court's discretion and rulings were consistent with precedent from other circuits); United States v. Lane, 194 F. Supp. 2d 758, 777, 786 (N.D. Ill. 2002) (denying motion for bond pending appeal on ground that no substantial question was raised regarding the exclusion of evidence and, "more significantly," that such exclusion could not legitimately be found to constitute an abuse of discretion), aff'd, 281 F.3d 638 (7th Cir. 2002); United States v. Butler, 704 F. Supp. 1351, 1354 (E.D. Va. 1989) (denying motion for bond on ground that denial of mistrial, in part because ruling was reviewable only for abuse of discretion); United States v. Draiman, 614 F. Supp. 307, 311 (N.D. Ill. 1985)(denying bond where court's restriction of cross examination was a matter of discretion). 5
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 6 of 43 II. DEFENDANT'S CLAIM THAT THE DELEGATION OF AUTHORITY TO THE SPECIAL COUNSEL VIOLATED THE CONSTITUTION AND FEDERAL STATUTES DOES NOT CONSTITUTE A SUBSTANTIAL QUESTION ON APPEAL. Defendant Libby moved to dismiss the indictment, contending that the delegation of authority to the Special Counsel violated statutory provisions, 28 U.S.C. §§ 516 and 519, and the Appointments Clause of the Constitution, art. II, § 2. In a thorough and carefully reasoned opinion, this Court rejected defendant's statutory and constitutional arguments and denied the motion to dismiss the indictment. United States v. Libby, 429 F. Supp. 2d 27 (2006). ^4 Neither of these arguments present a substantial question entitling the defendant to release pending appeal. With respect to defendant's statutory claim, this Court interpreted the relevant statutory provisions and rejected defendant's argument, finding defendant's points "unfounded" and "unconvincing" and concluding that the result was "compelled" by the plain language of the statutes and supported by D.C. Circuit precedent. Id. at 33-34. This Court also rejected defendant's Appointment Clause challenge, carefully analyzing the limits on the Special Counsel's authority and tenure, including being subject to dismissal at will, before concluding that the case "falls squarely into the mold of Morrison [v. Olson, 487 U.S. 564 (1988)]," which "remains binding authority" from the Supreme Court. 429 F. Supp. 2d at 44-45. The government respectfully submits that the defendant's appeal from this Court's denial of his motion to dismiss the indictment does not present a "substantial question" and that the defendant has failed to carry his burden under 18 U.S.C. 4 Defendant contends that it can be inferred from the length of this Court's written opinion that the legal issues presented constitute substantial issues for appeal. Def. Mot. at 5. It is a strange sort of logic that infers that the likelihood of reversal increases with the thoroughness of a written opinion. 6
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 7 of 43 § 3143(b) of establishing that "the chance for reversal is substantial." ^5 Defendant's motion for release pending appeal gives short shrift to his statutory argument, so it will be addressed briefly. Defendant contended that the delegation of authority to the Special Counsel violated 28 U.S.C. §§ 516 and 519, which state that, "[e]xcept as otherwise provided by law," the prosecution of criminal cases be supervised and directed by the Attorney General. Defendant claimed that, in appointing the Special Counsel, the Acting Attorney General "expressly abdicated supervision and direction." 429 F. Supp. 2d at 30. Defendant recognized that Sections 516 and 519 both contain the express exception "[e]xcept as otherwise provided by law," but argued that there was no applicable statutory exception. Id. at 31. In addressing this issue of statutory interpretation, this Court found that 28 U.S.C. § 510 provided an applicable statutory exception to Sections 516 and 519. Section 510 provides the Attorney General with the authority to delegate to any other officer of the Department of Justice "any function of the Attorney General." 28 U.S.C. § 510. This Court had little difficulty concluding that the plain language of Section 510 allows the Attorney General to delegate any of his authority, including the authority to supervise and direct criminal cases: "This result is compelled, as there is no language in Section 510 which limits the type of functions which can be delegated." 429 F. Supp. 2d at 33. ^6 This Court also found support for its conclusion in D.C. Circuit precedent. Id., citing In re Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987)(holding that the relevant statutory provisions, including Section 510, accommodate a 5 Quoting S. Rep. No. 225, 98th Cong., 1st Sess. (1983), reprinted in 1984 U.S. Code Cong. & Admin, News. 3182, 3210. 6 This Court noted that "there could never be a wholesale abdication" of supervisory responsibility because "any delegation of authority is subject to the constitutional limits set forth in the Appointments Clause." 429 F. Supp. 2d at 34. 7
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 8 of 43 delegation by the Attorney General of prosecutorial authority "virtually free of ongoing supervision"). ^7 In sum, defendant's statutory argument does not present a substantial issue on appeal. In his motion for release on appeal, defendant places primary emphasis on his constitutional argument concerning the authority of the Special Counsel. As this Court stated, the question is "whether the Special Counsel is a principal officer requiring nomination by the President with advice and consent of the Senate or an inferior officer subject to independent appointment by the Attorney General." 429 F. Supp. 2d at 35. ^8 This Court concluded that the Special Counsel is an inferior officer and that his appointment by the Acting Attorney General was consistent with the Appointments Clause. In doing so, this Court relied on binding Supreme Court precedent concerning when special prosecutors are inferior officers. Morrison v. Olson, 487 U.S. 654 (1988). Defendant does not argue that under the Morrison decision the appointment of the Special Counsel was unconstitutional. Indeed, the appointment of the Special Counsel presents an easier case than the appointment upheld in Morrison because the Special Counsel can be dismissed by a principal officer at will, while the Independent Counsel at issue in Morrison could only be dismissed 7 This Court's opinion addressed several other arguments advanced by defendant regarding the interpretation of the relevant statutes and dismissed them as "unfounded" and "unconvincing." 429 F. Supp. 2d at 33-34. 8 Although this Court believed it was compelled to reach the Appointments Clause issue, see 429 F. Supp. 2d at 43, n. 15, the government respectfully submits, as it did in its response to the motion to dismiss, that because this case involves a valid statutory delegation of additional authority, revocable at will, to an existing officer within the Department of Justice, that the Appointments Clause is not implicated. Cf. Weiss v. United States, 510 U.S. 163, 170-73 (1994)(no reappointment required under the Appointments Clause where additional duties delegated to Officers of the United States) That said, in the government's arguments in this brief concerning the Appointments Clause issue, for purposes of the discussion it is assumed that the clause applies, and the terms "appointment" and "delegation" are used interchangeably. 8
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 9 of 43 for good cause. Rather than making a futile attempt to make a case under Morrison, the thrust of defendant's argument is that Morrison is no longer good law and has been overruled sub silentio and supplanted by Edmond v. United States, 520 U.S. 651 (1997). Defendant presses this argument despite the fact that in Edmond, a case that did not involve a special prosecutor, the Supreme Court did not overrule Morrison, disavow it, or even suggest that Morrison was no longer good law or that the outcome in Morrison would have been different under Edmond's formulation of what constitutes an inferior officer. Nevertheless, defendant contends that this issue is "a close one" and that the D.C. Circuit "could easily reach the opposite conclusion from this Court." Def. Mot. at 5. Defendant's contention simply cannot withstand scrutiny. As this Court concluded, Morrison and Edmond can be read to be in harmony. But even if there were any significant "tension" between the two Supreme Court cases, defendant's contention ignores a fundamental principle that governs the resolution of legal issues by the District Courts and the Courts of Appeals, namely the obligation of the federal courts to faithfully apply Supreme Court precedent in the absence of some clear command to the contrary. This Court's decision in this case was based upon such an application of binding precedent. The Court of Appeals also is obligated to apply Morrison. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)("The Court of Appeals was correct in applying [the principle of stare decisis] despite disagreement with Albrecht, for it is this Court's prerogative alone to overrule one of its precedents."); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)("If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of cases, the Court of Appeals should follow the case that directly controls, leaving to this Court the prerogative of overruling its own decisions."); Tribune Co. v. F.C.C., 133 F.3d 61, 69 (D.C. Cir. 1998)("The Supreme Court has told lower federal courts 9
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 10 of 43 in no uncertain terms that we are to leave the overruling of its opinions to the Court itself."). For these reasons, the chance of reversal by the Court of Appeals is, at best, remote certainly not "substantial." This Court's written opinion, fairly read, belies the notion that the Appointments Clause argument presents a close question that could have been decided differently. The Court made factual findings and drew conclusions about the appointment of the Special Counsel. The Court concluded that "the Special Counsel's authority is limited." 429 F. Supp. 2d at 40. The plain language of the appointment letters, the Court concluded, established that "the Special Counsel is limited by the specific scope of the investigation he was directed to conduct. Accordingly, the Special Counsel cannot make any decisions that extend beyond his express jurisdiction." Id. at 41. The Court further concluded that the Special Counsel had no authority to disregard Department of Justice policies promulgated by the Attorney General. The Court stated, "[T]he only logical way to interpret the Deputy Attorney General's delegation to the Special Counsel of `all the authority of the Attorney General,' is that the delegation simply permitted the special Counsel to bypass certain approval requirements contained in the regulations and policies, not ignore them altogether." Id. at 42. Finally, the Court concluded that "the Special Counsel's tenure is both limited and temporary." Id. This conclusion was based in part on the Special Counsel's limited jurisdiction, which carried the implicit limitation that once the "assigned mission is complete his tenure as Special Counsel will end." Id. The conclusion about the Special Counsel's tenure was also supported by the fact that the Special Counsel's delegation could be revoked at will. Id. at 43. ^9 Having made these conclusions 9 This Court relied on D.C. Circuit precedent in finding that the power of the Attorney General to rescind or revoke the delegation of authority of a special prosecutor is an important limitation on tenure. In re Sealed Case, 829 F.2d at 56-57. 10
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 11 of 43 about the source and scope of the Special Counsel's authority, this Court applied the Supreme Court's Appointment's Clause precedents. This Court first discussed the Supreme Court's decision in Morrison v. Olson, 487 U.S. 654 (1988), the case cited by the government as controlling. That case involved a challenge to the Ethics in Government Act that contended that the Independent Counsel, who was appointed by a special court without senate confirmation, was a principal officer whose appointment violates the Appointments Clause. The Supreme Court rejected that challenge, concluding that the Independent Counsel was an inferior officer. In reaching that conclusion, the Supreme Court relied on (1) the fact that the Independent Counsel was removable by the Attorney General for good cause subject to judicial approval; (2) the limited duties of the Independent Counsel; (3) the Independent Counsel's lack of authority to formulate policy; and (4) the limited jurisdiction and tenure of the Independent Counsel. Id. at 663, 671-72. This Court next discussed Edmond v. United States, 520 U.S. 651 (1997), the case that the defendant claimed was controlling. That case held that judges on the Coast Guard Court of Criminal Appeals were inferior officers, thereby rejecting an Appointment Clause challenge. The Supreme Court discussed its decision in Morrison, noting that it "did not purport to set forth a definitive test" for determining whether an officer is inferior. Id. at 661. Further noting that several of the factors considered in Morrison were inapplicable to the case before it, the Court in Edmond described inferior officers as "officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Id. at 663. The Supreme Court went on to conclude that the judges in question were inferior officers by virtue of being subject to administrative oversight, uniform rules of procedure, review of their decisions 11
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 12 of 43 before they could become final, and removal without cause, which the Court termed "a powerful tool for control." Id. at 664-65. Defendant's motion to dismiss on Appointments Clause grounds is premised on his argument that Morrison is no longer good law, an argument this Court flatly rejected. He now claims that his argument raises a substantial question entitling him to release pending appeal. This Court's decision to apply Morrison rather than Edmond is not a close question. As this Court stated: The defendant relies heavily on Edmond, suggesting that it has "supplanted" the Supreme Court's approach in Morrison. Def.'s Mem. at 19 n. 8. This Court cannot agree that Edmond has that consequence. Neither Morrison nor Edmond established a bright-line test under which Appointments Clause challenges are resolved. Rather, the cases simply employed factors that the Supreme Court deemed important when resolving the Appointments Clause challenges that were before it in those particular cases. Neither case states explicitly, or even suggests, that the factors relied upon are exclusive. In fact, the Court in Morrison stated that "it need not attempt. . . to decide exactly where the line falls between [principal and inferior] officers. . . . " Morrison, 487 U.S. at 671, 108 S.Ct. 2597. And while there appears to be some tension between the two decisions because they do not rely on identical factors, Edmond did not reject the validity of the Morrison factors, suggest that the result in Morrison would have been different had the Court employed the Edmond analysis, or indicate that factors relied on in Edmond would be the governing factors for all future Appointments Clause challenges. 429 F. Supp. 2d at 37 (footnote omitted). Defendant cites this Court's reference to "tension" between Morrison and Edmond as a sign that this is a close question. Def. Mot. at 5. It is not. As this Court concluded: "This case falls squarely into the mold of Morrison, where the Supreme Court concluded that the independent counsel was an inferior officer. The factors employed in Morrison to reach that conclusion are equally applicable here." 429 F. Supp. 2d at 44. ^10 This Court rightly emphasized the fact that in 10 See United States v. Gantt, 194 F.3d 987, 999 n.9 (9th Cir. 1999) (reconciling the holdings of Morrison and Edmond); United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000)(same). 12
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 13 of 43 Morrison the Independent Counsel was removable, subject to judicial review, by the Attorney General for good cause or other condition that would substantially impair the performance of the independent counsel's duties. This factor carries even greater weight in this case because the Special Counsel is removable at will; his delegation of authority may be revoked without cause and without further review. As has been pointed out and it bears repeating Justice Scalia's dissent in Morrison explicitly stated that had the Independent Counsel been removable at will, even in his view of the Appointments Clause, the Independent Counsel statute would have passed constitutional muster. Morrison, 487 U.S. at 716 (Scalia, J., dissenting) (stating that if the Independent Counsel was removable at will by the Attorney General "then she would be subordinate to him thus properly designated as inferior."). While the removability of the Special Counsel was an important factor, it was by no means the only Morrison factor relied upon by this Court in rejecting the Appointments Clause challenge in this case. This Court also emphasized the following factors: the Special Counsel is empowered only to perform limited duties and is obligated to follow policies and regulations promulgated by the Attorney General; his jurisdiction is limited; and he has limited tenure. 429 F. Supp. 2d at 44-45. Based upon all of these factors the Morrison factors this Court concluded that "[t]his case falls squarely into the mold of Morrison." Id. at 44. The Court's holding was based on a straightforward application of binding precedent. Defendant's arguments based on Edmond do not have sufficient merit to constitute a substantial issue on appeal. ^11 Defendant's argument is premised on the claim that when the Edmond 11 This Court granted leave to a group of constitutional law scholars to file an amicus curiae brief. Amici's brief notes calls by some academics for the Supreme Court to revisit the question presented in Morrison and overrule that case. A.C. Br. at 1. To the extent that the amici or the 13
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 14 of 43 decision stated that inferior officers "are officers whose work is directed and supervised at some level" by other principal officers, 520 U.S. at 663 (emphasis added), that the Supreme Court was reworking its Appointments Clause jurisprudence and overruling Morrison sub silentio. In light of the Edmond decision's discussion of Morrison, defendant's interpretation of Edmond is extravagant, especially for a judge whose role is to identify and apply binding precedent. Defendant's contention that Edmond overruled Morrison also completely ignores the fact that the case of the Coast Guard defendant ask this Court to judge the substantiality of the Appointments Clause issue with respect to whether the issue is "ripe for reconsideration" by the Supreme Court, it is incongruous to suggest that a district court or court of appeals could view an argument for a change in the law as a substantial issue. Furthermore, it is important to note that under 18 U.S.C. § 3143(b), "[w]hat may be substantial and likely to result in reversal in terms of invoking the mandatory appellate jurisdiction of a court of appeals may well be insubstantial and unlikely to warrant the Supreme Court's plenary review when one seeks to invoke the discretionary certiorari jurisdiction of the Supreme Court." Stern, Gressman, Shapiro & Geller, Supreme Court Practice 762-63 (8th Ed. 2002). See Julian v. United States, 463 U.S. 1308 (1983)(Rehnquist, C.J.)("At a minimum, a bail applicant must demonstrate a reasonable probability that four justices are likely to vote to grant certiorari."). Thus, it is very difficult to establish that a question is "substantial" to the Supreme Court. With respect to the legal issues confronting this Court, the amici add little for the Court's consideration. The amici insist that Edmond "sets forth a generally applicable test of inferior-officer status." A.C. Br. at 4. As this Court has observed, the Supreme Court did not supplant Morrison and this Court likely would have reached the same result under Edmond. The amici also attempt to distinguish Morrison from the case at bar. A.C. Br. at 3. First, the amici state that the Special Counsel's office was not created by Congress. This ignores that the Attorney General, acting pursuant to statute, delegated authority to a Department of Justice attorney holding the statutory office of United States Attorney, subject to revocation at will. Second, the amici state that unlike the Independent Counsel law, no statute requires the Special Counsel to follow Department policies. As this Court concluded, as a member of the Department, the Special Counsel was obligated to follow such policies to the extent possible. Third, amici argue that the Special Counsel was able to expand his jurisdiction, and was therefore not sufficiently limited. This Court properly found that was not the case. Having made attempts to distinguish Morrison in favor of the defendant's argument, the amici attempt to discount the fact that strengthens the government's argument under Morrison: unlike the Independent Counsel, the Special Counsel is removable at will. A.C Br. at 5-6. The gist of amici's argument is that removability alone is not sufficient. That ignores this Court's analysis of the other limitations on the Special Counsel, Justice Scalia's dissent in Morrison stating that removal at will of the Independent Counsel would have changed the outcome, and the Edmond court's conclusion that removal is "a powerful tool for control." Thus, the amici have not established that there is a substantial question as defined by 18 U.S.C. § 3143(b). 14
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 15 of 43 judges presented an extremely different situation from that presented in Morrison, namely, the vexing problem of how to handle investigations of high-ranking government officials while maintaining the perception and reality of fairness. The precise issue surely influenced the Court in Morrison, just as it influenced this Court, which stated: The integrity of the rule of law, which is a core ingredient of the American system of government, is challenged to the greatest degree when high-level officials come under suspicion for violating the law. And a criminal investigation of any individual, prominent or not, for suspected violations of law must be beyond reproach to preserve respect for the fairness of our system of justice. There must therefore be a process by which the perception of fairness withstands the scrutiny of the American public when prosecution authority is called upon to investigate public officials. Creating that perception of fairness obviously starts with those who are charged with the responsibility of conducting the investigations. 429 F. Supp. 2d at 45. The Supreme Court in Morrison and this Court in the case at bar were called upon to interpret and apply the Appointments Clause in the context of the appointment of a special prosecutor. This Court's application of Morrison as binding precedent was correct and does not create a substantial issue for appeal. Rather, had this Court adopted Edmond as binding precedent, embraced defendant's interpretation of that case, and dismissed the indictment, ^12 it would have been the government that would have had a meritorious issue on appeal, and it is respectfully submitted that it would not have been a "close question." ^13 12 Because this Court concluded that the delegation of authority to the Special Counsel was in conformity with the Appointments Clause, this court had no occasion to address the remedy for failure to conform with the Clause. The government submits that if the delegation to the Special Counsel was in any way defective a point the government in no way concedes that under the circumstances of this case the defendant in this case was not prejudiced and that any error was harmless. 13 Defendant's motion to dismiss was premised not only on Edmond being controlling rather than Morrison, but on defendant's preferred reading of Edmond, which would require inferior officers to be subject to something akin to day-to-day supervision. As evidence that this Court's Appointments Clause decision presents a substantial question, defendant quotes this Court's 15
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 16 of 43 III. DEFENDANT'S CHALLENGES TO THE COURT'S EVIDENTIARY RULINGS RELATED TO DEFENDANT'S MEMORY DEFENSE DO NOT CONSTITUTE SUBSTANTIAL QUESTIONS LIKELY TO RESULT IN REVERSAL OR A NEW TRIAL. A. Denial of Defendant's Motion to Admit Expert Testimony Defendant sought to introduce the expert testimony of Dr. Robert A. Bjork regarding "thirteen scientific principles concerning human memory, including the process by which memory is encoded, stored, retained, and retrieved and various scientific bases for memory errors including `content borrowing,' source misattribution, subsequent recall, divided attention, and `retroactive interference.'" United States v. Libby, 461 F. Supp. 2d 3, 5 (2006) (citing Exhibit A to defendant's motion to admit expert testimony ("Def. Exp. Mtn.") at 2). The purpose of this testimony, according to defendant, was "to show that it was entirely plausible, given how memory has been found to function, that Mr. Libby or the government witnesses or both have innocently confused or misremembered the conversations on which this case turns." Id. at 5 (citing Def. Exp. Mtn. at 2). After carefully considering the parties' briefs and exhibits, and the testimony presented comment that "the question of whether the Special Counsel is an inferior under Edmond is a much more difficult question because the Special Counsel's work is conducted largely without direction and supervision." Def. Mot. at 5. Of course, this Court made clear that it was relying on Morrison. 429 F. Supp. 2d at 45. Nonetheless, this Court noted that the Special Counsel's "appointment would also likely survive under Edmond." Id., n. 17. This Court stated that it "would have no basis for adopting the view that an inferior officer must be under active day-to-day supervision. Rather, an inferior officer's work must be simply be `directed and supervised at some level.'" Id. After reviewing the limits on the Special Counsel's authority, including removability at will (which Edmond labeled a "powerful tool for control"), this Court concluded that for purposes of the Appointments Clause, "the Special Counsel is subject to the direction and control of the Deputy Attorney General." Id. Even if this Court had applied Edmond, the defendant's argument that Edmond requires day-to-day supervision, while perhaps presenting a more difficult question than the application of Morrison, would not present a substantial issue on appeal. 16
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 17 of 43 during a hearing on the motion, the Court, in a thorough written opinion, ^14 denied defendant's motion to admit Dr. Bjork's testimony on two grounds: first, that the testimony had not been shown to be helpful to the jury, as required by Fed. R. Evid. 702; and, second, pursuant to Fed. R. Evid. 403, that the probative value of the testimony was substantially outweighed by considerations of undue delay and waste of time, and by the risk of unfair prejudice, confusion of the issues, or misleading the jury. Id. at 1, 18-19. Contrary to defendant's contention (Def. Mot. at 9-11), the Court did not err, much less abuse its discretion, in denying defendant's motion to admit expert testimony, and the court's ruling provides no basis for granting release pending appeal. In deciding defendant's motion to admit expert testimony, the Court correctly applied Fed. R. Evid. 702 ^15 and properly performed the "gatekeeping" function mandated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The Court began by applying Daubert's two- prong test of admissibility, determining: "[a] whether the reasoning or methodology underlying the 14 Once again, the Court's careful and conscientious approach is not evidence of the "closeness" of the question for purposes of 18 U.S.C. § 3143(b). As in the case of the court's analysis in Day, while the issue "required close attention to the proffered testimony and careful analysis of the applicable standards, . . . the ultimate decision to exclude the proffered evidence was not a `close' one" because "[w]hatever relevance the proffered testimony might have had was significantly outweighed by its lack of reliability and potential to confuse the jury. . . ." Day, 433 F. Supp. 2d at 57. 15 Fed. R. Evid. 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 17
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 18 of 43 testimony is scientifically valid and [b] whether that reasoning or methodology properly can be applied to the facts in issue." ^16 461 F. Supp. 2d at 7. Thereafter, the Court considered whether the probative value of the proffered testimony was "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 461 F. Supp. 2d at 8, 17-18 (citing Fed. R. Evid. 403); Daubert, 509 U.S. at 595 (recognizing that "expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it," and holding that, therefore, "the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.") In light of the government's concession that the proffered testimony met the first prong of the two-part Daubert test, the Court correctly focused its attention on the question of whether 16 Defendant incorrectly characterizes his motion to admit expert testimony as having raised a "novel issue" for which there was a "dearth of relevant precedent." District courts routinely are called upon to determine the admissibility of expert testimony in both criminal and civil cases, and in doing so, they routinely apply, just as the Court did in this case, Fed. R. Evid. 702 in light of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993) and other relevant authorities. Nor was the jury in this case asked to do anything unique or novel. Juries in many, if not most, cases assess the memory and credibility of witnesses and evaluate competing versions of events without lengthy explanations of the current state of research into human memory. In context, the Court's observation that "[t]here is no clear case authority, or absolute rule, on when an expert should be permitted to testify on issues regarding memory or perception" indicates only that it was required to decide the case by applying general principles to the particular facts and circumstances of the case before it. The absence of controlling precedent determining the admissibility of expert testimony in circumstances identical to those before the Court is not a "dearth of relevant precedent." Following defendant's logic to its conclusion, all determinations regarding the admissibility of expert evidence, and all determinations for which the law requires that case-by- case determinations be made by the district court, would constitute "novel" issues warranting release pending appeal. But the opposite is true. Decisions committed to the sound discretion of the trial judge are even less likely to result in reversal or a new trial and, thus, are less likely to justify release pending appeal. See United States v. Day, 433 F. Supp. 2d 54, 56 -57 (D.D.C. 2006). 18
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 19 of 43 defendant had established ^17 that the proffered testimony "could properly be applied" to the facts in issue, or in other words, that the testimony would "assist the jury in understanding or determining" any of those facts." ^18 461 F. Supp. 2d at 8-9. In analyzing this issue, the Court considered the information and testimony offered by defendant in support of his claim that "jurors are generally unaware of the frequency and causes of honest errors of recollection, and that they underestimate the fallibility of memory." ^19 Id. at 10. The Court properly considered, based on those submissions, (1) whether the proffered testimony was relevant; (2) whether it was within the juror's common knowledge and experience; and (3) whether it would usurp the juror's role of evaluating a witness's credibility. Id. at 7. As the case law relied upon by the Court (see 461 F. Supp. 2d at 7) makes clear, expert testimony regarding matters that are already familiar to the jury is not helpful and, thus, not admissible. ^20 See United States v. Long, 328 F.3d 655, 666 (D.C. Cir. 2003)(approving expert 17 The Court correctly held defendant, as its proponent, to the burden of establishing the admissibility of the proffered testimony. 461 F. Supp. 2d at 6 (citing Meister v. Med. Eng'g Corp., 267 F.3d 1123, 1127 n.9 (D.C. Cir. 2001) and Daubert, 509 U.S. at 592, n.10). 18 As the Court noted, the Supreme Court cautioned in Daubert that "[f]it is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." 461 F. Supp. 2d at 6 (citing Daubert, 509 U.S. at 591). 19 Defendant submitted to the Court, together with his motion, a number of studies which purported to demonstrate jurors' general lack of awareness of the frequency and causes of honest errors of recollection. At the Daubert hearing conducted by the Court, defendant presented the testimony of Dr. Elizabeth Loftus, regarding her opinions about the extent to which "principles" of memory to which Dr. Bjork would testify if permitted were commonly understood by the general public, and regarding the potential benefits of expert testimony on memory in criminal cases generally. Dr. Loftus did not testify regarding the application of Dr. Bjork's thirteen "principles" to the facts at issue in the case. 20 In addition, the Advisory Committee Notes to Rule 702 state: There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine 19
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 20 of 43 testimony regarding modus operandi where such information was "not ordinarily familiar to the average layperson"); United States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995)(upholding the exclusion of expert linguistics testimony where recorded conversation was in evidence and its contents were within the common understanding of jury). See also United States v. Welch, 368 F.3d 970, 974 (7th Cir. 2004) (noting that "[w]here expert testimony addresses an issue of which the jury is already generally aware, such testimony does not assist the jury") (internal quotation marks omitted)(overruled on other grounds). ^21 ^22 intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute. Fed. R. Evid. 702, Advisory Comm. Notes. 21 Defendant's suggestion that an application of the Court's analysis would result in the exclusion of expert testimony routinely admitted in other cases is untenable. See Def. Mot. at 9-10, n. 5. Whereas, as the Court found, the average juror can understand, based on his or her own common sense, knowledge and experiences, that any defendant or witness might be mistaken when he or she tries in good faith to remember and testify about details concerning past events and conversations, it cannot seriously be argued that most jurors are likely to have first-hand experience with, and knowledge of, narcotics trafficking routes, pimp-prostitute relations, "Stockholm syndrome," or specialized businesses such as vehicle parts or stone. 22 Similarly, expert testimony that duplicates arguments available to counsel for the parties is not helpful to the trier of fact. United States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004)("Proffered expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.")(citing 4 Weinstein's Federal Evidence § 702.03 [a]). 20
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 21 of 43 After carefully considering Dr. Loftus' testimony, the Court correctly concluded that the studies upon which it was based were: inapposite to what the jurors [would] have to decide in this case because: (1) the studies examine issues of memory and cognition under substantially different factual situations than the situation here; (2) the research does not demonstrate that jurors will underestimate the fallibility of memory when the matter is addressed in the trial setting though voir dire, cross-examination, closing arguments, and jury instructions; and (3) insofar as the studies relied on by Dr. Loftus purport to demonstrate the failure of jurors to sufficiently understand factors that impact the accuracy of memory, the scientific value of the studies themselves is suspect. 461 F. Supp. 2d at 10. Specifically, the Court found that the studies relied upon by defendant were based on research into prospective jurors understanding the factors that could impact the reliability of eyewitness identification, and were not "applicable in any meaningful way to the case at hand, because they [did] not focus on the precise issues before the Court." 461 F. Supp. 2d at 12. In particular, the Court noted that, because prospective jurors generally have little or no experience as eyewitnesses to crimes, they are likely to be less familiar with concepts that may impact on a witness's identification, whereas common everyday experiences serve to familiarize them with how memory works and sometimes does not work. Id. The Court found that it was this familiarity, rather than a knowledge of the scientific bases and labels attached to the causes of memory errors, that was necessary "to appreciate that people sometimes experience mistaken memories." Id. In addition, the Court found that, because the studies relied upon by defendant "examined responses to questions posed in the abstract, and not through the lens of the actual trial process, their usefulness in establishing that jurors need assistance from an expert witness to understand the fallibility of memory is extremely limited, at best." Id. at 14. Based on all of these reasons, this Court determined that defendant failed to meet his burden of establishing that the proffered testimony of 21
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 22 of 43 Dr. Bjork would be helpful to the jury. ^23 This Court went on to consider whether Dr. Bjork's testimony was properly excluded under Fed. R. Evid. 403. The Court found that: (a) the probative value of the proffered testimony was limited to drawing more attention to principles about which the jury would appreciate, if not at the beginning of the trial, then at the beginning of deliberations; and (b) that value was substantially outweighed by considerations of undue delay and waste of time, as well as the "danger of unfair prejudice, confusion of the issues, or misleading the jury." 461 F. Supp. 2d at 18. Accordingly, the Court held that, even if it could conclude that Dr. Bjork's testimony satisfied the requirements of Rule 702, it would nevertheless exclude the evidence under Fed. R. Evid. 403. Id. (noting that "as the collective wisdom of the jurors, aided by the trial process itself, will more than adequately provide the jury with the means to assess the credibility and veracity of the witnesses,  testimony concerning scientific principles regarding memory and cognition would only serve to confuse those determinations.") Defendant argues that the Court of Appeals "might well reject this Court's conclusion that cross-examination and jury instructions provided an adequate substitute for Dr. Bjork's testimony." 23 Defendant's reference to comments made by a juror to the press after the verdict was returned (Def. Mot. at 11) adds nothing to the equation because, as defendant is well aware, the Court is not permitted to consider such comments: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. . . . A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. Fed. R. Evid. 606(b). See also United States v. Stover, 329 F.3d 859 (D.C. Cir. 2003). 22
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 23 of 43 Def. Mot. at 10. However, in light of the trial record, such a result is at best doubtful. ^24 During extensive, skillful cross-examination, defense counsel repeatedly and effectively demonstrated countless examples of misrecollection and otherwise faulty memory on the part of government witnesses. For instance, Robert Grenier testified at trial that he recalled telling Mr. Libby that Ambassador Wilson's wife worked at the CIA in the same unit where the idea originated to send Ambassador Wilson to Niger, but admitted that at the time of his earlier sworn testimony in the grand jury, he did not recall whether or not he had spoken to Mr. Libby about Wilson's wife. Mr. Fleisher, who testified under a grant of immunity, testified that he had no recollection of speaking to Walter Pincus about Ms. Wilson, and was later contradicted by Mr. Pincus, who claimed that such a conversation did, in fact, occur. Defense counsel made extensive use of these examples and others in arguing forcefully to the jury that defendant was no different from the government's witnesses, thus illustrating how defendant's memory may have failed. Nor is there any basis for concern that defense counsel's cross-examination of "confident" witnesses such as Mr. Russert was ineffective. Counsel subjected Mr. Russert to nearly five hours of cross-examination during which several instances of faulty memory were exposed, and used these as support for the argument that it may have been Mr. Russert, rather than defendant, who had misrecollected the details of their conversation. Indeed, the record confirms that, as the Court predicted, cross-examination was an effective tool for examining the issue of "faulty memory" before the jury. The fact that the jury 24 In fact, before the trial even began, the defense was assured that the jury comprehended important aspects of the memory defense. Defense counsel took full advantage of the wide latitude provided by the Court in jury selection, asking probing voir dire questions of each individual prospective juror. During individual voir dire, defense counsel asked each juror some variant of the question whether if two people gave differing accounts of the same events, one of the persons must be lying. Many of the jurors answered that honest people can remember things differently. The defense had the opportunity to strike jurors who had answers that concerned the defense. 23
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 24 of 43 apparently differentiated between defendant and the government's witnesses, and rejected the defendant's faulty memory defense, does not mean that defendant was precluded from effectively presenting his defense. Likewise, the Court's instructions to the jury presented the "faulty memory" theory of defense in narrative form, and fully covered pertinent types and causes of errors in the recollection of witnesses, effectively highlighting for the jury those aspects of the evidence which defendant argued supported his defense. Moreover, the defense also had at its disposal, and made effective use of, means other than cross-examination to put before the jury his theory that the magnitude of defendant's responsibilities, and the volume of national security information he received on a daily basis, made it unlikely that he would remember details concerning the conversations at issue in the trial. For example, defendant presented the testimony of John Hannah and the stipulated testimony of CIA briefers, which described in detail both defendant's job responsibilities and important national security issues he dealt with at relevant times. ^25 And defense counsel made extensive use of this evidence in arguing to the jury that defendant could not be expected to remember details in light of the crush of responsibilities he experienced during the relevant time period. In light of this Court's careful consideration of the applicable legal standards, the nature of the proffered testimony, the minimal usefulness to the jury and potential risks of confusing and misleading the jury, not to mention waste of time, there is little or no possibility that the Court of Appeals will find that this Court's exclusion of Dr. Bjork's testimony constituted error, particularly in view of the deferential standard of review applicable to the Court's determination. See Day, 433 F. Supp. 54, 56-57 (D.D.C. 2006)(denying bond pending appeal where defense challenged court's 25 See discussion infra at Parts III.B.2 and III.B.3. 24
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 25 of 43 denial of motion to admit expert testimony related to defendant's capacity to form the requisite mens rea, in light of the facts that the court accepted the legal theory of the defense, instructed the jury on that theory, and permitted defendant to present the testimony of lay witnesses in support of that theory). Thus, the denial of defendant's motion to admit expert testimony provides no basis whatever for granting defendant release pending appeal. B. Issues Stemming From the Proceedings Under the Classified Information Procedures Act The defendant advances three separate arguments that bear on issues decided by this Court during the proceedings under the Classified Information Procedures Act ("CIPA"): (1) the adequacy of the government's proposed substitutions; (2) the exclusion at trial of the Statement Admitting Relevant Facts; and (3) the exclusion at trial of a portion of the testimony of the defendant's CIA briefers. As is clear from a review of the record of the CIPA proceedings and of the trial, none of these issues presents a substantial question, much less one that, if decided the other way, would likely result in a reversal or an order for a new trial. During the CIPA process, the defendant sought to convince the Court that there were specific details of highly classified information that he needed to introduce at trial to show that he was "obsessed" and "consumed" with particular national security issues on particular dates, which he alleged caused him to have a faulty memory that was the source of any inaccuracies in the information he provided to the FBI and the grand jury. On numerous occasions during the CIPA hearings, the defendant represented to the Court and the government that at trial his own testimony See would establish the relevance for the classified information he sought to introduce. Government's Response to Defendant's Brief Concerning Admissibility of Evidence of State of 25
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 26 of 43 Mind, at 2-3 (citing examples of repeated instances during the CIPA proceedings when the defendant affirmatively represented that he intended to testify). Not surprisingly, the Court explicitly based its CIPA § 6(a) relevancy determinations on the expectation that the defendant's own testimony would establish the foundation for the relevance of that evidence. See id. at 4-5 (citing numerous examples of Court's statements that its relevance determinations were predicated on the defendant's testimony laying the necessary foundation for the admissibility of specific evidence). The Court applied a liberal standard during the § 6(a) hearings, ^26 which ultimately resulted in the defendant having available to his defense a "dizzying panoply of classified information" subject to the substitution provisions of CIPA § 6(c), United States v. Libby, 467 F. Supp. 2d 20, 29 (2006), the vast majority of which was entirely unrelated to the facts supporting the indictment. Thereafter, in the § 6(c) proceedings, the Court adopted a standard favored by the defendant and opposed by the government, which eliminated any balancing of the government's national security interest in assessing the adequacy of the proposed substitutions. See id. at 25 n.4. Ultimately, using that standard, the Court found that the final substitutions provided by the government gave the defendant "substantially the same ability to present his defense," as required under § 6(c). The defendant then declined to testify at trial to those matters that he had proffered were important 26 See, e.g., United States v. Libby, 453 F. Supp. 2d 35, 40-44 (D.D.C. 2006) (rejecting the government's view that the Court should balance the defendant's interest in disclosure against the government's need to protect classified information in favor of the defendant's view that only the Federal Rules of Evidence should control the 6(a) determination); United States v. Libby, 467 F. Supp.2d 1, 8 n.12 (D.D.C. 2006) (stating that "[b]ecause this Court wants to provide the defendant every possible accommodation to put on his defense, the Court has been extremely reluctant to exclude evidence on [Rule 403] grounds."); United States v. Libby, 475 F.Supp.2d 73, 86 (noting that during the CIPA hearings, "the Court made provisional determinations of relevance, use, and admissibility erring on the side of admitting the classified evidence when in doubt . . ."). Although the government respectfully disagrees with the standard applied by the Court during the § 6(a) hearings, it is important to recognize that the Court applied a standard in defendant's favor. 26
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 27 of 43 because he was "consumed" with them, and many of the substitutions therefore were not admitted into evidence. 1. The Adequacy of the Government's Proposed Substitutions The defendant first contends that the adequacy of the government's proposed substitutions under § 6(c) of CIPA provides a basis under which he should be granted release pending appeal. This is simply not true. First, it is of no small import that despite the favorable rulings the defendant received throughout the CIPA § 6(a) stage, and the fact that he had available to him extremely detailed and voluminous substitutions, he failed to make use of most of those substitutions at trial. Having not even used the substitutions as part of his defense, the defendant has no basis by which he can claim that a different ruling on the adequacy of the substitutions would result in reversal or an order for a new trial. Thus the adequacy of the proposed substitutions can in no way meet the test for release pending appeal. In any event, the adequacy of the substitutions does not present a "close question." The Government prepared extensive and detailed substitutions for all of the defendant's nine topic narratives and all of the documents deemed relevant and admissible by the Court pursuant to § 6(a), going back to the intelligence community on numerous occasions at the Court's request to elicit greater details to bring the substitutions even closer to the original classified text in the documents and the defendant's topic narratives. See Libby, 467 F. Supp. 2d at 23 (noting that the government provided revised versions of proposed substitutions throughout the course of the CIPA proceedings). As is readily apparent from a review of the substitutions, ^27 they were more than adequate to give the 27 A set of the government's final proposed substitutions was provided to the Court on December 4, 2006, and additional revisions for specific substitutions were provided to the Court on December 7 and 8, 2006. 27
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 28 of 43 defendant "substantially the same ability to make his defense," and any suggestion that the adequacy of the substitutions poses a "close question" is wholly without merit. As a basis for arguing that the adequacy of the government's substitutions poses a substantial question, the defendant cites this Court's statements that "[t]here is no existing written case authority describing the lens through which a Court should look to determine whether a proposed substitution will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information," see Def. Mot. at 12 (quoting Libby, 467 F. Supp. 2d at 25-26), and that the § 6(c) process was "largely uncharted by written precedent" id. at 40. The defendant ignores the fact that in the § 6(c) proceedings, the Court actually adopted the "lens" proposed by the defendant, rejecting the government's view that national security interests should be considered when assessing the adequacy of substitutions. The defendant also ignores the fact that the Court's § 6(c) determinations, like its § 6(a) determinations, are evidentiary determinations not rulings of law. See United States v. Rezaq, 134 F.3d 1121, 1142-1143 (D.C. Cir. 1998) ("The district court's substitution decisions turned on the relevance of the facts contained in the discoverable documents, and are therefore reviewed, like other relevance decisions under CIPA, for abuse of discretion.") As such, these determinations are entitled to great deference on appeal, making reversal even more unlikely. See Day, 433 F. Supp. 2d 54, 57 (denying motion for bond pending appeal, and noting that "[e]videntiary determinations . . . are reviewed by the court of appeals for abuse of discretion, and thus are less likely to result in reversal on appeal"). Adopting the defendant's view that the Court's assessment of the substitutions constitutes a "close question" would suggest that every time a judge makes a relevance determination to resolve an issue, there will be a "close question." That obviously is not and cannot be the case. 28
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 29 of 43 Contrary to what the defendant's motion suggests, the Court offered no equivocation in determining that the final substitutions provided by the government gave the defendant "substantially the same ability to make his defense" as required under CIPA. In a detailed, thorough analysis rejecting the defendant's objections to certain items, the Court made the following observations: · "There can be no credible argument that the defendant does not have a vast quantity of information at his disposal to present to the jury concerning what matters he was involved in during this critical time period." Id. at 37. · "Finally, it is important to also note that the defendant retains the ability to saturate the jury with classified information he received on June 11 and the dates immediately surrounding this date to show what was the focus of his attention at that time." Id. at 39. · "There can be no serious contention that based upon this overwhelming amount of information, the defendant will be able to argue to the jury that the volume and magnitude of the important national security information presented to him on June 11, 2003, and the days immediately before and after that date, was so formidable that it is inconceivable that the accuracy of his memory would not have been impaired." Id. As part of its analysis, the Court noted that the adequacy of the substitutions had to be assessed in conjunction with the nature of the defendant's defense and the other evidence proffered in furtherance of that defense, which included, among other things the defendant's daily calendars. The lack of equivocation in the Court's assessment and the overwhelming nature of the information available to the defendant through the government's proposed substitutions and other evidence demonstrates that the adequacy of the substitutions does not present a substantial question. 2. Exclusion of the Statement Admitting Relevant Facts Among the substitutions provided by the government pursuant to CIPA § 6(c) was a one- page, five-paragraph document describing the nature of the defendant's job, and his duties and responsibilities with respect to a number of national security issues, which was entitled "Statement 29
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 30 of 43 Admitting Relevant Facts." ^28 The admission of this substitution, like the admission of the other substitutions provided by the government during the § 6(c) process, was conditioned on the § 6(a) relevancy determinations made by the Court, e.g., without the foundational predicate establishing the relevance of the information that was being substituted, the substitution itself certainly could not be relevant. During trial, the defendant sought to introduce the Statement despite the fact that he had not taken the stand. The Court excluded the Statement in its entirety under Federal Rules of Evidence 401 and 403 as both irrelevant and unduly prejudicial without the defendant's testimony, stating that "it could not require the government to stand by a substitution of evidence that it agreed to with the understanding and in light of this Court's rulings, based on the same understanding that the defendant himself would testify." Libby, 475 F. Supp. 2d at 86. The Court added: Admitting [the Statement's last three] paragraphs in the absence of the defendant's own testimony would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant's state of mind with respect to those issues. Neither Rule 403 nor the basic principles of fairness underlying the Federal Rules of Evidence . . . would permit the defendant to put [those paragraphs] before the jury in such manner. Id. at 87-88. 28 Although the defendant attempted to characterize this document as an "unqualified admission" based solely on its title, the Court correctly found that characterization inappropriate, stating, "[i]n no way can the Statement reasonably be construed as an unqualified admission of fact that was intended to bind the government (or this Court, which approved the substitution) even if the defendant chose not to testify." Libby, 475 F. Supp. 2d at 86. The title "Statement Admitting Relevant Facts" comes from the language in CIPA § 6(c)(1)(A), ". . . the United States may move that, in lieu of the disclosure of such specific classified information, the Court order . . . the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove . . . ." (emphasis added). 30
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 31 of 43 The defendant's claim that the exclusion of the Statement presents a substantial question is wrong. The Court's decision to exclude the Statement was a straightforward one supported entirely by the representations made by the defense during the CIPA hearings that the defendant's testimony is what would make such information relevant at trial and the consideration that admitting it would violate Rule 403. Moreover, the decision constitutes a routine evidentiary ruling well within the district court's discretion. Such decisions are entitled to substantial deference, and are unlikely to result in reversal on appeal. See Day, 433 F. Supp. 2d at 57. The defendant's baseless claim that the exclusion of the Statement violated his Constitutional rights fails to turn this routine evidentiary issue into a substantial question. As this Court noted, defendant's guarantee under the Constitution to present his version of facts to the jury "extends only to relevant evidence." See Libby, 475 F. Supp. 2d at 91 (citing, among others, United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (holding that "criminal defendants do not have a right to present evidence that the district court, in its discretion, deems irrelevant or immaterial")). The Court's decision not to admit evidence it found irrelevant and unduly prejudicial did not in any way deprive the defendant of his rights to due process, to present a defense, and to remain silent. Finally, the defendant ignores the fact that at trial, he was able to introduce a substantial portion of the information contained within the Statement through, for example, the testimony of John Hannah and a stipulation for the defendant's CIA briefings (as discussed further below). In fact, the Court found that admitting the first two paragraphs of the Statement would be cumulative under Rule 403 in light of Mr. Hannah's testimony. See Libby 475 F. Supp. 2d at 88. Thus, even assuming the doubtful proposition that exclusion of the Statement does present a substantial question, there is no basis for believing that a favorable appellate ruling on the issue would result 31
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 32 of 43 in a reversal or an order for a new trial. ^29 3. Exclusion of a Portion of the Testimony of the CIA Briefers The defendant also sought at trial to introduce the testimony of three CIA briefers who provided him with morning intelligence briefings. The Court ruled that he could present to the jury some of the information he sought to bring out through that testimony. Specifically, the Court concluded that "the defendant could present to the jury, through the briefers' testimony or otherwise, the topic areas he was briefed on during the dates in question as a means of giving the jury a general appreciation of the matters he was responsible for addressing on those dates." Libby, 475 F. Supp. 2d at 89. The Court also noted, "[a]dditionally, the defendant was permitted to present detailed information concerning the intelligence briefing he received on June 14, 2003, the day he asked the briefer about Mr. Wilson's wife." Id. at 89 n.18. The Court prevented the defendant from eliciting from the briefers specific details from briefings on dates other than June 14, 2003, or that otherwise would tend to suggest what matters were allegedly consuming the defendant's time and attention. After the Court's ruling, instead of calling the briefers to the stand, the defendant chose to present to the jury a stipulation between the parties that described in detail the topics on which he was briefed on the morning of June 14, 2003, including a list of terrorist threat items from that date, and more general information about the kinds of intelligence information and topics on which he was briefed during the period "between May 2003 and March 2004, including the weeks of June 9 29 In addition, it is worth noting, as this Court did, that the defendant had the opportunity to call a number of other witnesses at trial to provide additional testimony relating to information in the Statement. See Libby, 475 F. Supp. 2d at 91 n.21. The defendant's failure to call those witnesses, including the Vice President (who was present with the defendant during many of the intelligence briefings and could offer better testimony than the briefer Mr. Schmall as to the defendant's responsibilities), should not now enable him to claim that his defense was somehow impaired by his inability to admit information contained within the Statement. 32
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 33 of 43 through June 14 and July 7 through July 14, 2003." Tr. Feb. 14, 2007, A.M. Session, at 69-74. The defendant claims that the Court's exclusion of a portion of the testimony from the briefers presents a substantial question. This claim likewise lacks merit. The decision to exclude a portion of the briefers' testimony was, like the exclusion of the Statement, based on the fact that the relevance of that testimony was predicated on testimony from the defendant regarding the importance he attached to the information the briefers provided him. "Without the defendant's own testimony, he could not present through the briefers evidence suggesting what matters were allegedly consuming his time or attention beyond when the briefings were conducted, or the relative importance of those matters he was tasked to address at a particular time." Libby, 475 F. Supp. 2d at 89. In permitting the defendant to admit some testimony from the briefers, while excluding other information whose relevance was specifically predicated on the defendant's testimony, the Court struck a careful balance under Federal Rules of Evidence 401 and 403. As with its decision regarding the Statement, nothing about this ruling presents a "close question." The defendant's citations to this Court's statements that it was "not sure" whether to exclude a portion of the testimony or that it was "a tough call" must be put in context. These statements were made in the context of a district court's routine and discretionary evidentiary determinations under Rules 401 and 403. They are highly fact specific, based on the district court's assessment of relevance, and of what the defendant was able, through other evidence, to put before the jury. These statements also preceded the district court's thorough analysis in its March 1, 2007 opinion as to why a portion of the briefers' testimony was justifiably excluded at trial, an analysis that offered no equivocation on the issue: 33
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 34 of 43 The government was correct that, as was true of the Statement Admitting Relevant Facts, the Court's § 6(a) rulings pertaining to the defendant's intelligence briefings, and the level of detail the Court deemed admissible, hinged on its assumption that the defendant himself would lay a foundation establishing their relevance. Likewise, as with the Statement, the Court was cognizant of the potential for prejudice that would have arisen if the defendant had been permitted to portray his own state of mind without allowing the government any effective means of challenging it through cross- examination. And there was indeed a significant danger that if presented with details of national security issues and suggestions by those who worked with him that the defendant himself was personally concerned about those issues, the jury would have been unable to resist speculating about the relative import of those matters to the defendant. Id. at 89. Moreover, the defendant was able to introduce at trial a significant amount of information relating to the intelligence briefings he received, through the stipulation ultimately read to the jury and through the testimony of John Hannah and cross-examination of Craig Schmall. Mr. Libby's Motion for Release Pending Appeal even cites some of this evidence, see Def. Mot. at 14-15, ^30 which the government would argue actually supports the government's position that given the evidence that was introduced at trial, there is absolutely no basis for believing that, if this issue presented a substantial question, a decision to permit additional testimony from the briefers would likely result in a reversal or an order for a new trial. 30 Incidentally, it is important to note, as this Court did, that the testimony of Craig Schmall did not show what "actually commanded" the defendant's attention at relevant times, thereby establishing a predicate for what was in fact of concern to him. See Libby, 475 F. Supp.2d at 88 n.17. Mr. Schmall testified that he did not even recall the specific items on which he briefed the defendant. See Tr. Jan. 24, 2007, P.M. Session, at 101-06. Similarly, the testimony of John Hannah did not and could not demonstrate what actually "consumed" the defendant's attention at relevant times. 34
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 35 of 43 C. Even if Erroneous, the Court's Evidentiary Rulings Were Harmless in Light of the Overwhelming Evidence of the Defendant's Guilt. In sum, none of the issues defendant raises with respect to his memory defense constitutes a "substantial question," much less one likely to result in a reversal or a new trial. In its rulings on each of the issues raised by the defendant, the Court's determinations were clear and lacking in equivocation. Moreover, the Court's determinations on all of these issues were routine, discretionary decisions by the district court based on standard evidentiary rules, thus entitled to substantial deference and unlikely to result in reversal. Finally, the government respectfully submits that, in a case in which the Court recognized at sentencing that the "evidence overwhelmingly indicated Mr. Libby's culpability, despite the best efforts of counsel," Tr. June 5, 2007 at 80, it is highly unlikely that an appellate court would find that a different ruling on any of these issues could possibly have led to an acquittal. Thus, it is clear that none of these issues provide a basis for overcoming the presumption in favor of detention pending appeal. IV. DEFENDANT'S CHALLENGE TO THE COURT'S EXCLUSION OF THE TESTIMONY OF ANDREA MITCHELL DOES NOT CONSTITUTE A SUBSTANTIAL ISSUE LIKELY TO RESULT IN REVERSAL OR A NEW TRIAL. Tim Russert testified that he did not tell defendant that Mr. Wilson's wife worked at the CIA when he spoke with defendant late during the week of July 6, 2003. Tr. February 7, 2007 PM at 11, 26. Mr. Russert indicated that he was certain of this, and that he could not have spoken with defendant regarding Ms. Wilson because, at the time of their conversation, he knew nothing about her. ^31 Id. Mr. Russert also specifically denied knowing about Ms. Wilson's CIA-employment until 31 Mr. Russert's testimony made clear that he recalled his conversation with defendant, and was certain that he did not mention Ms. Wilson during that conversation, and was not, as defendant implies, merely inferring from the sequence of events that he "could not have" mentioned Ms. 35
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 36 of 43 he read about it in Mr. Novak's column. Id. At trial, defendant sought to introduce the testimony of Andrea Mitchell, Chief Foreign Affairs Correspondent for NBC News, purportedly to testify regarding "her knowledge of Ms. Wilson's employment" prior to the publication of Robert Novak's column on July 14, 2003. According to defendant, if Andrea Mitchell knew of Ms. Wilson's employment before the publication of Mr. Novak's column, it could reasonably be inferred that she would have told Mr. Russert, and if that occurred, then Mr. Russert could be shown to have lied or been mistaken regarding his knowledge of Ms. Wilson's employment at the time of his conversation with defendant, and also that he may have lied or been mistaken about whether he mentioned Ms. Wilson's employment to defendant. This tall stack of inferences depended on the defendant's being able, at a minimum, to convince the jury that Ms. Mitchell knew of Ms. Wilson's employment prior to July 11, 2003. Ms. Mitchell moved to quash defendant's trial subpoena, and during the course of proceedings on the motion, advised the Court through counsel that, if called to testify, she would deny having known, prior to the publication of Mr. Novak's column, that Ms. Wilson worked at the CIA. ^32 Nevertheless, defendant sought to attack Mr. Russert's credibility by introducing evidence that on the October 3, 2003 episode of CNBC's "Capitol Report," Ms. Mitchell made a statement Wilson to defendant. 32 While the defense initially requested that the Court order that Ms. Mitchell submit to questioning on this point outside the presence of the jury, eventually, counsel accepted the representation of Ms. Mitchell's counsel, which was consistent with repeated public statements made by Ms. Mitchell. See 475 F. Supp. 2d at 82, n. 8. As discussed below, counsel's waiver of an opportunity to question Ms. Mitchell constitutes a waiver of any argument that she would have testified inconsistently with her attorney's representation. 36
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 37 of 43 suggesting that she had been aware of Ms. Wilson's CIA-employment prior to the publication of Mr. Novak's column. ^33 Defendant contended that, despite Ms. Mitchell's repeated public statements in which she explained that she mis-spoke or misunderstood the question when addressing this issue on the October 3, 2003 broadcast, and in which she insisted that the broadcast should not be understood as an indication that she knew of Ms. Wilson's employment prior to Mr. Novak's July 14, 2003 column, ^34 the jury could permissibly conclude from her October 3, 2003 statement that she had in fact known about Ms. Wilson and that she would have shared this information with Mr. Russert prior to his conversation with defendant. CITE. According to defendant, Ms. Mitchell's October 3, 2003 statement could thus be used to discredit Mr. Russert's credibility. After reviewing briefs submitted by the parties and counsel for Ms. Mitchell, and hearing 33 When asked during a segment of the October 3, 2003 broadcast of CNBC's "Capital Report" how widely known it was in Washington that Joe Wilson's wife worked for the CIA, Ms. Mitchell replied, "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." "Capital Report" (CNBC Television Broadcast Oct. 3, 2003). 34 Ms. Mitchell and her employer, NBC, later made numerous public statements disputing the accuracy of these statements. For example, on October 29, 2005, Ms. Mitchell told NBC News that the Washington Post story had erroneously reported that she had been a recipient of the leak about Valerie Wilson before Novak's column, and reiterated that she had in fact not been a recipient of the leak before Novak's column was published. "Tim Russert Show" (CNBC television broadcast, Oct. 29, 2005) ("I was called by the CIA because it was erroneously reported in The Washington Post that I was the recipient of the leak before Novak's column came out, and I had not been.") In a November 10, 2005 interview with radio host Don Imus, Ms. Mitchell stated that her October 3, 2003 quote was taken out of context, and that when she made the comment on October 3, 2003, she was referring to after the publication of the Novak column. She also definitively said that she did not know about Valerie Wilson before the Novak column. See DX 1661.5 ("Imus in the Morning" (MSNBC television broadcast, Nov. 10, 2005)). In a November 23, 2005 interview with radio host Don Imus, Ms. Mitchell repeated that she did not know about Joe Wilson's wife until after Novak's column, and that when she read Novak's column, she went to her producer and asked "How the heck did we not know that?" See DX 504.3 ("Imus in the Morning" (MSNBC television broadcast, Nov. 23, 2005)). 37
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 38 of 43 extensive argument, this Court determined that (a) there was no legal basis upon which Ms. Mitchell's October 3, 2003 statement could be introduced as substantive evidence; ^35 (b) under United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986) and cases from other jurisdictions, Ms. Mitchell's October 3, 2003 statement was not admissible as impeachment evidence; and (c) an analysis under Rule 403 also led to the exclusion of the testimony, because the impeachment of Ms. Mitchell with her prior statement lacked probative value, whereas, the risk that the jury would misuse the prior statement to the undue prejudice of the government, was significant. 475 F. Supp. 2d at 79-80, 83- 84. As this Court found, defendant's purpose in calling Ms. Mitchell was indeed to put before the jury her prior statement, and this tactic violated not only well-settled authority in the D.C. Circuit, but authority from other jurisdictions as well. See United States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986) (holding that it was "entirely inappropriate" for the prosecution to call a witness for the sole purpose of bringing about the admission of a statement that was not independently admissible); United States v. Peterman, 841 F.2d 1474, 1479 n.3 (10th Cir. 1988)(noting that "[e]very circuit has said evidence that is inadmissible for substantive purposes may not be purposely introduced under the pretense of impeachment"); United States v. Sebetich, 776 F.2d 412, 429 (3d Cir. 1985) ("It is well established, however, that witnesses may not be called for the purposes of circumventing the hearsay rule by means of Rule 607"); United States v. Morlang, 35 This Court held that the statement was not admissible under Chambers v. Mississippi, 410 U.S. 284, 298 (1973) or under Fed. R. Evid. 807. 475 F. Supp. 2d at 77. Since defendant does not argue that either of these rulings supply a "substantial issue" likely to result in reversal or a new trial, the government omits discussion regarding them other than to say that neither ruling constituted error, much less an abuse of discretion. 38
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 39 of 43 531 F.2d 183, 190 (4th Cir. 1975) ("The overwhelming weight of authority is, however, that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible"); United States v. Fay, 668 F.2d 375, 379 (8th Cir. 1981) ("Although Rule 607 allows a party to impeach his own witness, `(c)ourts must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the jury'"); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984). As in all of these cases, allowing the defense to call Ms. Mitchell posed the unacceptable risk that the jury would improperly consider Ms. Mitchell's October 3, 2003 statement for its truth. Indeed, defense counsel repeatedly argued that the jury should be permitted to do just that. Thus, the Court correctly concluded that because the law did not allow defendant to call Ms. Mitchell solely, or for the primary purpose of, putting before the jury her October 3, 2003 statement, her testimony must be excluded. Defendant argues that the question of the admissibility of Ms. Mitchell's testimony presents a "close" question because: (a) the court of appeals could distinguish Johnson; (b) Ms. Mitchell "might have" testified consistently with her October 3, 2003 statement; and (c) the jury might have concluded that Ms. Mitchell was lying or mistaken when she denied knowing of Ms. Wilson's CIA- employment prior to the publication of Mr. Novak's column and on that basis the jury might have inferred that Ms. Mitchell relayed the information concerning to Ms. Wilson to Mr. Russert prior to Mr. Novak's column. Contrary to defendant's contention, none of these arguments presents a substantial issue likely to result in reversal or a new trial. The suggestion that the court of appeals "could" distinguish the D.C. Circuit's decision in Johnson does not come close to establishing a "substantial question" likely to result in reversal or a new trial, particularly in view of the deferential standard of review applicable to this evidentiary 39
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 40 of 43 issue on appeal. ^36 In this case, as in Johnson, defendant insisted in calling the witness despite his knowledge that she would provide testimony unfavorable to the defendant, and that she had made prior out-of-court statements that were also unfavorable to his defense. As was the case in Johnson, the only favorable evidence that could be introduced through the witness was her prior out-of-court statement, which was inadmissible. In view of these facts, the Court correctly found, as did the court in Johnson, that the defense planned to call Ms. Mitchell solely or primarily for the purpose of putting before the jury her prior out-of-court statement. None of the factors identified by defendant as distinguishing this case from Johnson establish any basis for finding that there is any likelihood that the court of appeals will determine that this Court's exclusion of Ms. Mitchell's testimony constituted error, much less an abuse of discretion. While the proponent of the evidence in Johnson was the prosecutor and the proponent here is the defendant, as this Court noted, this distinction does not reduce the likelihood that the jury in this case would misuse the October 3, 2003 statement and consider it for its truth. See 475 F. Supp. 2d at 83. Moreover, the reliability of Ms. Mitchell's uncorroborated October 3, 2003 statement was even more doubtful than the post-arrest statement at issue in Johnson. See 475 F. Supp. 2d at 78, 80. As the Court found, it was not even clear that the statement was properly interpreted as defendant suggested, that is, to mean that Ms. Mitchell knew about Ms. Wilson's employment prior to the publication of Mr. Novak's column. See 475 F. Supp. 2d at 80. In any event, Ms. Mitchell had consistently, and repeatedly, refuted the accuracy of the statement as interpreted by defendant. Defendant's speculation that Ms. Mitchell might have testified consistently with her October 36 As previously stated, determinations regarding the admissibility of evidence are reviewed only for abuse of discretion, and thus are less likely to be reversed on appeal. See Day, 433 F. Supp. 2d at 57. 40
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 41 of 43 3, 2003 statement or admitted on cross-examination that "it was possible that she had learned of or heard a rumor about Ms. Wilson's employment prior to the Novak article even if she did not remember that happening all these years later" (Def. Mot. 19) provides no basis for distinguishing Johnson or other relief. As the Court noted, it is difficult in any case to ascertain with certainty exactly what a witness's testimony would be. 475 F. Supp. 2d at 82, n. 8. Moreover, in this case, defendant ultimately waived the opportunity to find out whether Ms. Mitchell's account would differ from what she represented once she was placed under oath by accepting her attorney's representations. See id. In any event, Ms. Mitchell's repeated public statements refuting the fact that she had known about Ms. Wilson's employment prior to reading Mr. Novak's column, combined with the representation of counsel, provided the Court with far more assurance regarding her likely testimony than was present in Johnson. Likewise, defendant's suggestion that, had Ms. Mitchell testified, the jury may have inferred from her demeanor or otherwise that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment (Def. Mot. 21), is fantastical, as is the proposition that this unsupported "theory" raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true. In fact, the utter and complete lack of evidence supporting defendant's "theory" is persuasive proof of the correctness of this Court's determination that defendant's purpose in calling Ms. Mitchell was merely to put her October 3, 2003 statement before the jury. There is no reasonable possibility that the court of appeals will disagree. Finally, in the unlikely event that the court of appeals were to determine that the Court erred in excluding Ms. Mitchell's testimony there is no possibility that it would find that the error was 41
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 42 of 43 anything but harmless. As this Court found, the probative value of the testimony was minimal at best and in light of the overwhelming evidence of defendant's guilt, any error in excluding this evidence was necessarily harmless. For all of these reasons, and the reasons stated in this Court's March 2, 2007 Memorandum Opinion, this Court's exclusion of the testimony of Andrea Mitchell provides no basis for granting defendant release pending appeal under § 3143(b). CONCLUSION For the reasons discussed above and for all the reasons set forth in the Court's prior opinions and orders reported at 429 F. Supp. 2d 27 (D.D.C. Apr. 27, 2006), 453 F. Supp. 2d 35 (D.D.C. Sept. 21, 2006), 461 F. Supp. 2d 3 (D.D.C. Nov. 2, 2006), 467 F. Supp. 2d 1 (D.D.C. Dec. 1, 2006), 467 F. Supp.2d 20 (D.D.C. Dec. 22, 2006), and 475 F. Supp. 2d 473 (Mar. 1, 2007), the government respectfully requests that this Court deny defendant's motion for release pending appeal. Respectfully submitted, /s/ PATRICK J. FITZGERALD Special Counsel 219 South Dearborn, 5th Floor Chicago, Illinois 60604 (312) 353-5300 Dated: June 12, 2007 42
Case 1:05-cr-00394-RBW Document 365 Filed 06/12/2007 Page 43 of 43 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 12th day of June, 2007, I caused true and correct copies of the foregoing to be served on the following parties by electronic mail: William Jeffress, Esq. Baker Botts The Warner 1299 Pennsylvania Avenue, N.W. Washington, DC 20004-2400 Facsimile: 202-585-1087 Theodore V. Wells, Esq. Paul Weiss 1285 Avenue of the Americas New York, NY 10019-6064 Facsimile: 212-373-2217 John D. Cline, Esq. Jones Day 555 California Street San Francisco, CA 94104 Facsimile: 415-875-5700 Patrick J. Fitzgerald Special Counsel U.S. Department of Justice 1400 New York Ave., N.W. Washington, D.C. 20530 202-514-1187 By: /s/ Debra Riggs Bonamici Deputy Special Counsel
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