No Easy Answers

Wednesday, June 13, 2007

Libby Reply to Government Objection re: bail [Doc 368]

OCR Job. After spell check (more or less) no doctoring planned.

Doc 368


v. ) GR. NO. 05-394 (RBW)
also known as "Scooter Libby," )
Defendant. )
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

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
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
' 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.


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.


the Special Counsel is an agent of a principal within the Department or a principal
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


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.


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


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.
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


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


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.


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,


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.


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
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.


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


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


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,


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.
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
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.


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


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


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


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


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"

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



Thought you'd find this amusing--Your site appears on the second page of results when '"united states v. perholtz" jackson' is searched on Google.

OTOH, how often do people search for that phrase?
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