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Friday, June 29, 2007

DC Circuit Opinion re: Further Unsealing Miller Case

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.

Source: http://pacer.cadc.uscourts.gov/docs/common/opinions/200706/04-3138d.pdf



 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.

Source: http://pacer.cadc.uscourts.gov/docs/common/opinions/200502/04-3138a.pdf

The newly redacted material, absent context, is the following:

---===---

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).

---===---

and Rove.

Same material below, in its context.




                               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,


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