No Easy Answers
Tuesday, January 30, 2007
Fitzgerald Proposed Verdict Forms [Doc 260]
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 1 of 7
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 PROPOSED VERDICT FORMS
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits the attached proposed Verdict Forms.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Debra Riggs Bonamici
Kathleen M. Kedian
Peter R. Zeidenberg
Deputy Special Counsels
Office of the Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
Dated: January 29, 2006
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 2 of 7
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 29th day of January, 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
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 3 of 7
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 )
VERDICT FORM
We, the jury, find the defendant, I. LEWIS LIBBY, NOT GUILTY as charged in the Indictment.
______________________ ______________________
FOREPERSON
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 4 of 7
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 )
VERDICT FORM
We, the jury, find the defendant, I. LEWIS LIBBY, GUILTY as charged in the Indictment.
______________________ ______________________
FOREPERSON
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 5 of 7
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 )
VERDICT FORM
With respect to Count 1 of the Indictment, in which the defendant I. Lewis Libby is charged
with obstruction of justice,
we, the jury, find the defendant, I. LEWIS LIBBY:
G G
GUILTY NOT GUILTY
With respect to Count 2 of the Indictment, in which the defendant I. LEWIS LIBBY is
charged with making false statements to agents of the FBI regarding a conversation with Tim Russert
of NBC News on or about July 10, 2003,
we, the jury, find the defendant, I. LEWIS LIBBY:
G G
GUILTY NOT GUILTY
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 6 of 7
With respect to Count 3 of the Indictment, in which the defendant I. LEWIS LIBBY is
charged with knowingly making false statements to agents of the FBI regarding a July 12, 2003
conversation with Matthew Cooper of Time magazine,
we, the jury, find the defendant, I. LEWIS LIBBY:
G G
GUILTY NOT GUILTY
With respect to Count 4 of the Indictment, in which the defendant I. LEWIS LIBBY is
charged with having knowingly made false declarations to a grand jury, while under oath, regarding
a conversation that he represented he had on or about July 10, 2003, with Tim Russert of NBC News,
we, the jury, find the defendant, I. LEWIS LIBBY:
G G
GUILTY NOT GUILTY
2
Case 1:05-cr-00394-RBW Document 260 Filed 01/30/2007 Page 7 of 7
With respect to Count 5 of the Indictment, in which the defendant I. LEWIS LIBBY is
charged with having knowingly made false declarations to a grand jury, under oath, regarding
conversations on or about June 12, 2003, between the defendant and Matthew Cooper of Time
magazine, and between the defendant and other reporters,
we, the jury, find the defendant, I. LEWIS LIBBY:
G G
GUILTY NOT GUILTY
______________________ ______________________
FOREPERSON
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
______________________ ______________________
3
Libby Proposed Verdict Form [Doc 259]
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF Ano_RIcA }
}
v. } CR. NO. 05-394 {RBW}
}
I. LEWIS LIBBY, }
also known as "Scooter Libby" }
VERDICT FORM
Count One
Count One alleges that Mr. Libby obstructedjustice. To be found Guilty ofthis
count, the jury must unanimously agree that the government proved beyond a reasonable doubt
that Mr. Libby corruptly endeavored to influence, obstruct, or impede the due administration of
justice by knowingly and deliberately making materially false and intentionally misleading
statements to the grand jury, and that Mr. Libby knew the statements were false at the time he
made them.
with respect to each ofthe three statements listed below, we the jury unanimously
find that the government [has failed to prove/has provedl beyond a reasonable doubt that the
statement was materially false and intentionally misleading, and that Mr. Libby knew this when
he made the statement to the grand jury:
When Mr. Libby spoke with Tim Russert ofNa(TNews on Failed to Prove Proved
_uly 10 or l l, 2003, Mr. Russert asked Mr. Libby ifMr.
Libby knew that _oseph Wilson's wife worked for the CIA
and that all the reporters knew iti and, that at the time of
this conversation, Mr. Libby was surprised to hear that
Mr. Wilson's wife worked for the CIA.
Mr. Libby advised Matthew Cooper of Time magazine on Failed to Prove Proved
or about _uly 12, 2003 that he had heard that other
reporters were saying that Mr. Wilson's wife worked for
the CIA, and hrther advised him that Mr. Libby did not
know whether this assertion was true.
Mr. Libby advised _udith Miller ofthe New rook Times on Failed to Prove Proved
or about _une 12, 2003 that he had heard that other
reporters were saying that Mr. Wilson's wife worked for
the CIA, but that Mr. Libby did not know whether that
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/30/za0_ _a_P z af _ assertion was true. with respect to the offense ofobstruction ofjustice, we the jury unanimously find Mr. Libby: Not Guilty Guilty
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/30/za0_ _a_P 3 af _ Count Two Count Two alleges that Mr. Libby made false statements to the Federal Bureau of Investigation. For Mr. Libby to be found Guilty ofthis count, the jury must unanimously agree that the government has proved beyond a reasonable doubt that Mr. Libby willfully made a false, fictitious, or fraudulent statement or representation concerning a material fact, knowing that it was false at the time he made it, when he told the FBI that: During a conversation with Tim Russert ofNa(TNews on _uly 10 or l l, 2003, Mr. Russert asked Mr. Libby ifMr. Libby was aware that Mr. Wilson's wife worked for the CIA. Mr. Libby responded to Mr. Russert that he did not know that, and Mr. Russert replied that all the reporters knew it. Mr. Libby was surprised by this statement because, while speaking with Mr. Russert, Mr. Libby did not recall that he previously learned about Mr. Wilson's wife's employment from the Vice President. To be found Not Guilty, the jury must unanimously agree that the government did not prove this beyond a reasonable doubt. with respect to the offense ofmaking false statements to the Federal Bureau of Investigation, we the jury unanimously find Mr. Libby: Not Guilty Guilty
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/30/za0_ _a_P _ af _ Count Three Count Three alleges that Mr. Libby made false statements to the Federal Bureau ofInvestigation. For Mr. Libby to be found Guilty ofthis count, the jury must unanimously agree that the government has proved beyond a reasonable doubt that Mr. Libby willfully made a false, fictitious, or fraudulent statement or representation concerning a material fact, knowing that it was false at the time he made it, when he told the FBI that During a conversation with Matthew Cooper of Time magazine on _uly 12, 2003, Mr. Libby told Mr. Cooper that reporters were telling the administration that Mr. Wilson's wife worked for the CIA, but Mr. Libby did not know ifthis was true. To be found Not Guilty, the jury must unanimously agree that the government did not prove this beyond a reasonable doubt. with respect to the offense ofmaking false statements to the Federal Bureau of Investigation, we the jury unanimously find Mr. Libby: Not Guilty Guilty
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/30/za0_ _a_P 5 af _ Count Four with respect to the first charged offense ofperjury, we the jury unanimously find Mr. Libby: Not Guilty Guilty
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/30/za0_ _a_P _ af _ Count Five with respect to the second charged offense ofperjury, we the jury unanimously find Mr. Libby: Not Guilty Guilty
_asg _ _OS__r_OO_g__RBW Oo__mgnt z5_ ril__ 01/z_/za0_ _a_P _ af _ Dated: January 26, 2007 Respecthlly submitted,
Libby Response to Government Motion to Admit Libby NDAs [Doc 258]
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THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF Ano_RIcA }
}
v. } Cr. No. 05-394 {RBW}
}
I. LEWIS LIBBY, }
also known as "Scooter Libby," }
Defendant. }
I. LEWIS LIBBY'S RESPONSE TO THE GOVERNMENT'S MOTION INLIMINE TO
ADMIT NONDISCLOSURE AGREEMENTS EXECUTED BY DEFENDANT
As the Court knows, Mr. Libby has not been charged with diwlging classified
information in violation offederal law. Nor has he been accused ofbreaching the six
nondisclosure agreements he signed while serving as Chief of Staff and National Security
Advisor to the Vice President. Nevertheless, the government has asked this Court to admit the
executed nondisclosure agreements, arguing that these documents indicate Mr. Libby' s
awareness ofthe consequences of disclosing classified information without authorization and
thus are relevant to whether Mr. Libby had a motive to lie to the FBI and the grandjury. See
Government's Mot. i_z Limi_ze to Admit Nondisclosure Agreements Executed By Def. at 3-5 {_an.
25, 2007} {DM. 253} {"Mot."}.
The proffered evidence should be excluded under Fed. R. Evid. 401 and, in the
alternative, Fed. R. Evid. 403. As shown below, the documents are irrelevant because, as the
evidence in this case has shown and will continue to show, Mr. Libby has never had any reason
to believe that his conduct constituted a breach ofthe nondisclosure agreements. Even ifthe
documents did have some slight probative value {which they do not}, that value would be
completely outweighed by the unfair prejudice their admission would cause to Mr. Libby. The
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documents will inevitably encourage the jury to {l} speculate as to whether Mr. Libby did
diwlge classified information without authorization and {2} punish him on that basis.
ARGUMENT
In its motion, the government argues that "one ofthe grounds for defendant's motive to
lie was his awareness ofhis duty to safeguard classified information, and ofthe potential
consequences ofbreaching that duty, an awareness defendant obtained in part through one or
more 'security indoctrination[s]' concerning the nature and protection of classified information."
Mot. at 3. Asserting that the nondisclosure agreements signed by Mr. Libby during the course of
his employment constitute evidence that he received such "indoctrinations," the government
contends that the agreements are relevant to Mr. Libby's motive and are therefore admissible
under Rule 401. See id. at 3-4. In support, the government states that "other evidence . . . will
establish that defendant was . . . aware Qt the time he mQde the chQogedfQlse stQteme_zts that Ms.
Wilson's employment may have been classified." Mot. at 4 {emphasis added}.
At bottom, the government's relevance argument is that press coverage ofMs. Wilson's
status that appeared Qfteo Mr. Libby's alleged conversations with reporters caused Mr. Libby to
fear, retroactively, that those conversations had somehow violated the nondisclosure agreements
he had signed and therefore motivated him to perjure himselfto cover up what he had done. But,
even had Mr. Libby given any credence to aker-the-fact press accounts regarding Ms. Wilson's
status, there is - as the government conceded before the trial even began - no direct evidence
that Mr. Libby had any idea Qt the time those conversations occurred that Ms. Wilson's status
might be somehow protected. See Aff. ofPatrick _. Fitzgerald, Aug. 27, 2004. And Mr. Libby
certainly had no reason to think that the nondisclosure agreements erected some sort of strict
liability for inadvertent disclosures ofclassified information. To the contrary, the wording ofthe
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agreements and the federal regulations cited therein make clear that a person can be held liable
for a disclosure o_zly _there is a me_zs oeQ present at the time the disclosure occurs.
For example, "[a] party to the SF 3 12," one ofthe standard nondisclosure agreements
signed by Mr. Libby, "may be liable for disclosing 'classified information' only ifhe or she
k_zows 00 oeQso_zQbly shouldk_zow that . . . the marked or unmarked information is classified, or
meets the standards for classification and is in the process of a classification determination . . . ."
32 C.F.R. é 2003.20{h}{3} {emphasis added}. Similarly, each ofthe Sensitive Compartmented
Information {"SCI"} Nondisclosure Agreements signed by Mr. Libby forbade him from
diwlging material "marked" or "know[n] to be" classified, or "that [he would] have reason to
believe" might contain classified information. GX5B at li see Qlso GX5C at li GX5E at li
GX5F at l.'
The federal regulation governing the nondisclosure agreements does not make one liable
for revealing information one subseque_ztly leQo_zs may be clQss_ed. Rather, it is only one' s
knowledge at the time of disclosure that matters. Consequently, the nondisclosure agreements
would be relevant only ifthe government could show that Mr. Libby knew, or had reason to
know, or should have known, Qt the time ofhis co_zveosQtio_zs with oepooteos that information
about Ms. Wilson's employment at the CIA was classified. But as the evidence presented by the
government has borne out, it simply cannot make this showing. Accordingly, the agreements
should be excluded as irrelevant.
Even ifthe nondisclosure agreements could be considered in any way relevant {and they
cannot}, their probative value is substantially outweighed by the danger ofunfair prejudice and a
conhsion ofthe issues. As all parties are well aware, Mr. Libby is not on trial for disclosing
' The Special Access Program Nondisclosure Agreement executed by Mr. Libby contains nearly
identical language. See GX5D at l.
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classified information {nor is any other person who discussed Ms. Wilson with reporters}. In
fact, this Court has denied Mr. Libby discovery regarding Ms. Wilson's status because "Ms.
Wilson's documented status as an employee ofthe CIA . . . is simply immaterial." Mem.
Opinion at 6 n.3 {_une 2, 2006} {DM.l 12}.
Yet, introduction ofthe nondisclosure agreements would inevitably cause the jury to
speculate whether Mr. Libby did in fact violate those agreements through conversations in which
he allegedly discussed Ms. Wilson's CIA employment. That inevitable effect would be
fundamentally unfair to Mr. Libby's defense. (Tf U_zitedStQtes v. (Thoisto, 614 F.2d 486, 492
{5th Cir. 1980} {remanding for retrial on the relevant counts aker holding that the government's
introduction of evidence concerning defendant's violation of a regulatory statute in an effort to
prove violation of a criminal statute "impermissibly infected the very purpose for which the trial
was being conducted"}. The government itself has acknowledged that it would be problematic to
"create an atmosphere in which the juryjust assumed that [Ms. Wilson] was classified or
covert." 12/19/06 Tr. at 38. That is exactly what the offered evidence threatens to do and that is
exactly why it should not be admitted.
The danger ofunfair prejudice is particularly high with respect to GX5B, GX5C, GX5D,
GX5E, and GX5F. Those nondisclosure agreements relate to discrete compartments oftop
secret information to which Mr. Libby was given access. But there is no evidence that any
information related to Ms. Wilson's employment at the CIA fell within one ofthose discrete
categories. Even the cursory summary ofMs. Wilson's employment history provided by the
CIA does not make such an assertion. The fact that these agreements address in particular the
disclosure oftop secret information renders them both less relevant {to the extent that any ofthe
agreements are relevant} and mooe prejudicial than the standard nondisclosure agreement {SF
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_asg _ _OS__r_OO_g__RBW Oo__mgnt z5g ril__ 01/30/za0_ _a_P 5 af _
3 12} executed by Mr. Libby - less relevant because there has been no indication that Ms.
Wilson's status was top secret, and more prejudicial because top secret information is ofthe
utmost importance to our national security. Any invitation to the jury to consider whether Mr.
Libby divulged top secret information would necessarily be inflammatory and unfairly
prejudicial to his defense.
As noted above, the defense has been denied any meaningful discovery on the actual
nature ofMs. Wilson's status and thus any opportunity to rebut the implication that the
introduction ofthe nondisclosure agreements would inevitably create. Because such ungrounded
speculation is unfairly prejudicial to Mr. Libby, all ofthe nondisclosure agreements should be
excluded.
That the government is attempting to prejudice Mr. Libby unfairly by introducing these
agreements is evident by their number. Putting aside the issue ofwhether any ofthe agreements
are relevant and admissible {and none are}, no reason exists to flood the jury with a halfdozen
single-spaced forms except the hope that their cumulative effect will signal that Mr. Libby
violated his obligation not to disclose classified information. Not only is it unnecessary to
introduce six nondisclosure agreements to demonstrate motive, the defense is willing to resolve
this issue by stipulating that, in the course ofhis job, Mr. Libby was under an obligation not to
disclose classified information knowingly and intentionally.
The defense also notes that the motive theory laid out in the government's motion i_z
limi_ze is only now, in the midst oftrial, being sprung on the defense. Previously, the
government stated that Mr. Libby lied about his conversations with reporters out of concern that
he would be fired because "the White House had publicly staked its credibility on there being no
White House involvement [in the public disclosure ofinformation about Ms. Wilson]."
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Government's Resp. to Def.'s Third Mot. to Compel Discovery at 26-28 {April 5, 2006} {DM.
80}. Perhaps realizing the weakness ofthat argument, the government now asserts that Mr.
Libby lied not to protect the White House from embarrassment, but to elude regulatory and
contractual liability. The lack of notice provided to the defense and its inability to explore and
seek discovery of information necessary to rehte the government's newfound motive theory is
yet another reason that the Court should exclude the offered evidence.
CONCLUSION
For the foregoing reasons, Mr. Libby respecthlly requests that the Court deny the
government's Motion.
Dated: January 29, 2007 Respecthlly Submitted,
Monday, January 29, 2007
Fitzgerald Memorandum in Opposition - Re: Fleisher Testimony [Doc 256]
Case 1:05-cr-00394-RBW Document 257 Filed 01/29/2007 Page 1 of 2
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" )
NOTICE OF FILING
The United States of America, by and through its attorney, Special Counsel Patrick
Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit
in support of its Memorandum in Opposition to the Defendant's Dual Requests Concerning the
Testimony of Witness Ari Fleischer.
/s/
Patrick J. Fitzgerald
Special Counsel
Dated: January 28, 2007
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 1 of 10
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
:
UNITED STATES OF AMERICA
:
v. : Cr. No 05-394 (RBW)
:
:
I. LEWIS LIBBY,
:
a/k/a "Scooter Libby"
GOVERNMENT'S MEMORANDUM IN OPPOSITION TO
DEFENDANT'S DUAL REQUESTS CONCERNING
THE TESTIMONY OF WITNESS ARI FLEISCHER
The United States of America, by and through Patrick J. Fitzgerald, Special Counsel, hereby
respectfully submits this memorandum in opposition to (a) defendant's motion to exclude evidence
regarding the circumstances surrounding witness Ari Fleischer's decision to seek immunity; and (b)
defendant's request for the production of documents and information concerning communications
between the government and Mr. Fleischer's counsel prior to the grant of immunity to Mr. Fleischer.
As demonstrated below, the defendant is not entitled to challenge Mr. Fleischer's credibility based
on an immunity order while precluding the government from introducing evidence concerning facts
and circumstances that surrounded the grant of immunity, and is not entitled, at the same time, to
demand irrelevant details concerning the discussions that preceded the entry of the immunity order.
BACKGROUND
Anticipated Testimony of Government Witness Ari Fleischer
The government anticipates that Ari Fleischer, the former White House press secretary, will
testify that while having lunch with defendant Libby on July 7, 2003, defendant Libby told him that
Ambassador Joseph Wilson's wife worked in the Counterproliferation Division of the CIA.
Defendant described this news to Mr. Fleischer as "hush-hush" or on the "Q.T." Mr. Fleischer, who
was leaving that evening for a week-long Presidential trip to Africa, subsequently discussed this
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 2 of 10
information with members of the press while on the trip to Africa.
Immunity Order
On September 28, 2003, nearly three months after leaving government service, Mr. Fleischer
read a Washington Post article by Mike Allen and Dana Priest which stated that the Department of
Justice had initiated a criminal investigation regarding an "allegation that administration officials
leaked the name of an undercover CIA officer to a journalist." The "undercover" officer was
identified as being the wife of former ambassador Joseph Wilson. The article stated that the
"intentional disclosure of a covert operative's identity is a violation of federal law." The article went
on to say that the "officer's name was disclosed on July 14 in a syndicated column by Robert D.
Novak, who said his sources where two senior administration officials."
Upon reading this article, Mr. Fleischer feared that, although he had made no disclosures to
Robert Novak, and although he had had no knowledge concerning whether Ambassador Wilson's
wife was a covert agent, or whether information concerning her employment was classified when
he spoke to reporters in Africa, he might nevertheless be in legal jeopardy. Therefore, Mr. Fleischer
sought legal counsel. Subsequently, on advice of counsel, Mr. Fleischer refused to provide
information, or answer any questions put to him by the government, unless and until he was provided
with statutory immunity. After being granted immunity, Mr. Fleischer provided investigating agents
and the grand jury the above information, together with other information relevant to the
investigation.
Pretrial Discovery
Prior to trial, the government provided to the defense a copies of the Use Immunity Order
entered by Acting Chief Judge Fried on February 13, 2004, FBI reports summarizing information
2
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 3 of 10
provided to the government by Mr. Fleischer, and transcripts of Mr. Fleischer's grand jury testimony.
On December 29, 2006, defense counsel requested that the government produce "[a]ny proffer that
Ari Fleischer made to the government, either in person or through counsel, before receiving
immunity." On January 10, 2007, the government informed defense counsel that, "Mr. Fleischer
made no proffers to the government before he received immunity."
In a letter dated January 11, 2007, defense counsel then made the following additional
request:
Paragraph 9 of your letter states that "Mr. Fleischer made no proffers to the
government before he received immunity." Please confirm that that statement
encompasses any proffers made on Mr. Fleischer's behalf by his attorneys, whether
orally or in writing. At bottom, what we want to know is whether Mr. Fleischer was
given "blind immunity," in that the government had no idea from discussions with
his counsel as to what he would say once immunized, or instead did his counsel
communicate in some fashion to the government about the expected nature of Mr.
Fleischer's testimony, orally or in writing, prior to the grant of the immunity order.
If Mr. Fleischer's attorneys did make an oral proffer of any nature, please provide us
with either the notes taken during that proffer or a description of its contents. If they
made no proffer, please confirm that fact as well.
The government responded the following day:
We have already indicated that Mr. Fleischer made no proffers to the government
prior to his being given a grant of immunity. There is no other properly discoverable
information regarding the circumstances surrounding his grant of immunity to which
you are entitled.
Defense Opening Statement
Not surprisingly, defense counsel pointed out to the jury during opening statement that Mr.
Fleischer would be testifying pursuant to an immunity order:
But in terms of evaluating Mr. Fleischer's testimony, Mr. Fleischer is in a different
position than any other witness in this case. Mr. Fleischer was the Press Secretary
to President Bush. And when the FBI asks to speak to Mr. Fleischer, Mr. Fleischer
asserted the Fifth Amendment. Mr. Fleischer refused to testify. He said I plead the
3
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 4 of 10
Fifth. I will not testify about anything unless I am immunized. I want complete
protection from anything.
And the Government immunizes the former Press Secretary to the President of the
United States. And after being immunized, Mr. Fleischer then testifies and says he
has this recollection of this conversation with Mr. Libby.
****
So what you'll see, in terms of the evidence concerning these six witnesses, that all
of these witnesses have their own personal recollection problems, or, like Mr.
Fleischer, may have issues where their credibility should be questioned because they
have an arrangement. They have a deal whereby they have been given immunity.
1/23/07 Tr. 36-38 (emphasis supplied).
Accordingly, before Mr. Fleischer had even taken the stand, the defense has argued that he
should not be believed because he is an immunized witness. Defense counsel acknowledges that the
defense plans to argue to the jury that it should "consider whether his immunity agreement gives Mr.
Fleischer a reason to provide testimony in a manner that will curry favor with the government."
Motion in Limine at 2-3.
January 25, 2007 Proceedings
On January 25, 2007, defense counsel objected to the admission in evidence of any
information regarding Mr. Fleischer's reasons for seeking immunity and, in particular, to the
admission of a copy of the September 28, 2003 article which led Mr. Fleischer to seek counsel and
begin the process of obtaining an immunity agreement. In sum, government counsel explained that
it sought to introduce the proffered testimony, and the September 28, 2003 article, for the limited
purpose of mitigating the effect of the immunity agreement, and of rebutting the defense argument
that, in light of that agreement, Mr. Fleischer's testimony is not worthy of belief. The Court offered
the parties an opportunity to present applicable legal authorities, and stated its preliminary view that:
4
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 5 of 10
if he's going to be placed under attack and it's suggested that because he sought
immunity, and it seems to me that's the only reason the defense would want that
information before the jury, that the government's got to have some opportunity to
explain why he thought it was appropriate to seek it. So they can at least put it into
context.
1/25/07 Tr. 118.
During the same proceeding, defense counsel sought to "make a record" (id.) regarding its
requests for information related to any oral or written "attorney proffer" of Mr. Fleischer's testimony
prior to the grant of immunity. Defense counsel stated that government counsel had represented that
Mr. Fleischer had been given, "in Mr. Zeidenberg's words, blind immunity, that is without any
knowledge of what he would say about Mr. Libby." Id. at 119.1 Government counsel clarified that
what actually had been represented to the defense was that there had been no factual proffers made
by Mr. Fleischer, and that the government had received nothing from counsel for Mr. Fleischer to
which the defense was entitled. Id. at 120. More specifically, government counsel represented to
the Court that the government received no factual proffer from Mr. Fleischer or his counsel as to
what Mr. Fleischer would say about Mr. Libby's conduct. Id.
1
Defense counsel's in-court description of the exchange of correspondence related to this
issue was inaccurate, as is the description of the court proceedings contained in defense counsel's
brief. Defense counsel did not as represented in its brief at page 2 "summarize[] for the Court the
government's response" to its requests and describe the defense "conclusion" that the government
had provided Mr. Fleischer with "blind immunity." Instead, defense counsel represented that, "in
Mr. Zeidenberg's words," Mr. Fleischer had been given "blind immunity." 1/25/07 Tr. 119. As
indicated above, the term "blind immunity" was defense counsel's, not government's counsel's. See
1/25/07 Tr. 132.
5
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 6 of 10
ARGUMENT
I. Admissibility of Evidence Related to Circumstances Leading to Grant of Immunity
The defense has already cited Mr. Fleischer's receipt of immunity as a reason for the jury to
believe that Mr. Fleischer will testify as the prosecution wants him to testify, regardless of the truth.
As this Court recognized, evidence that a witness entered into an immunity agreement serves no
purpose other than to attack the witness's credibility.
In this case, the government is entitled to "draw the sting" of the immunity agreement and
also to put that agreement in context by presenting the testimony of Mr. Fleischer regarding his
reasons for seeking immunity. While the government believes that the September 28, 2003 article
that led Mr. Fleischer to fear that he was in legal jeopardy is admissible for the limited purpose of
establishing Mr. Fleischer's state of mind, given the particular concerns expressed by the Court
regarding the possibility that the jury might rely improperly on some of the contents of the article,
the government has decided not to seek to admit a copy of the article through Mr. Fleischer.
However, given that Mr. Fleischer's credibility has already been attacked and will continue to be
attacked on cross-examination, it would be inappropriate to bar the government from permitting Mr.
Fleischer to explain to the jury the reasons and motives for his seeking immunity. He should be
permitted to explain his own state of mind, why he felt he might get caught up in the investigation,
and why he refused to speak with the government unless and until he had been given a grant of
immunity, so that the jury can evaluate all of the evidence relevant to Mr. Fleischer's credibility.
It is entirely appropriate for the government to "draw the sting" of prospective impeachment
by bringing out the relevant evidence on direct examination. See, e.g., United States v. Spriggs, 996
F.2d 320 (D.C. Cir. 1993); United States v. Montani, 204 F.3d 761 (7th Cir. 2000)(permitting the
6
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 7 of 10
admission of a co-defendant's plea agreement in government's case in chief; "A party may not
`bolster the credibility' of a witness on direct examination, but we have held repeatedly that
introducing evidence of a witness's guilty plea or immunity deal serves the `truth-seeking' function
of the trial by presenting all relevant aspects of a witness's testimony at one time.")(citing United
States v. LeFevour, 798 F.2d 977, 983-84 (7th Cir. 1986)).
Moreover, contrary to defendant's contention (Mtn at 4), the proffered evidence is not being
offered as "substantive evidence of the guilt" of the defendant. Mtn. at 4 (citing United States v.
Tarantino, 846 F.2d 1384, 1404-05 (D.C. Cir. 1988)). Quite the opposite. The proffered testimony
is being offered for the purpose of rebutting the inference that Mr. Fleischer must have actually
committed a crime or he would not have required, or obtained, immunity. Mr. Fleischer will testify,
if permitted, that while in his view he did not knowingly or intentionally do anything illegal or
improper, he was not sure others would view his conduct as benign. Mr. Fleischer's testimony will
make clear that he does not believe that he committed any criminal offense. Thus, Mr. Fleischer's
testimony regarding the circumstances that led him to seek immunity will not cause the jury to reach
the conclusion that Mr. Fleischer in fact committed the crime of disclosing the identity of a covert
CIA employee, much less that Mr. Libby committed that crime. In any event, any such risk can be
cured "through the usual method of instructing the jury to consider the evidence only for
credibility." Montani, 204 F.3d at 767.
Defendant purports to quote the government as arguing that evidence concerning the
underlying investigation "lack[s] relevance to the issues at trial." Mtn. 5 (citing Gov't Motion in
Limine to Preclude Evidence, Comment and Argument Regarding Charging Decisions ("Gov't
Mtn") at 6). However, defense counsel's quotation omits the government's footnote which expressly
7
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 8 of 10
acknowledged that "information relating to its discussions with prospective witnesses, for example,
an agreement to provide immunity, is relevant on the issue of the witnesses' motivation." Gov't Mtn
at 6, n 1. It is entirely appropriate for the defense to vigorously cross-examine Mr. Fleischer on the
impact of the immunity agreement; at the same time, the government is entitled to put the agreement
in context, and to present for the jury's consideration all of the facts and circumstances relevant to
the agreement, and to Mr. Fleischer's credibility.
II. The Defendant Has Received All Information Regarding the Immunity Order to Which
He Is Entitled.
The government has provided the defense with a copy of Mr. Fleischer's immunity order.
There is nothing in any statement made by Mr. Fleischer's counsel to which the defense is entitled
under the Jencks Act, Brady or Giglio. Mr. Fleischer was given immunity based on general
information regarding the nature of his prospective testimony that added little or nothing to what the
government had already determined in the course of its investigation. Neither Mr. Fleischer nor his
counsel proffered that he would provide specific information incriminating Mr. Libby. Nothing that
the government received prior to Mr. Fleischer being granted immunity is in any way inconsistent
with the prior testimony and statements of Mr. Fleischer that have been provided to the defense, or
in any way reflects the existence of any tacit agreements, incentives or benefits beyond the immunity
order itself. There are none.
The defense relies on a single district court case from the Central District of California in
support of its argument that the defense is entitled to receive under Giglio any information revealing
the "nature of the negotiation process that led to the leniency agreement." United States v. Sudikoff,
36 F. Supp. 2d 1196 (C.D. Cal. 1999). Apart from the fact that Sudikoff does not reflect the law of
this Circuit, the decision in that case does not support the notion that the defense is entitled to receive
8
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a description of every statement made by a witness's lawyer prior to a grant of immunity, irrespective
of its impeachment value. Instead, the Court in Sudikoff held that the defendant was entitled to
obtain proffers and notes from multiple proffer sessions with a witness because such materials may
reveal prior inconsistent statements and indicators of motivation to lie. Id. at 1198.
While the government strongly objects to the notion that the defense is entitled to anything
beyond what has already been provided, it has provided the Court, in a separate pleading, filed ex
parte and under seal, an Affidavit of Patrick J. Fitzgerald which sets forth the collective recollections
of the prosecution team concerning any relevant conversations with Mr. Fleischer's counsel prior
to the grant of immunity.
CONCLUSION
For all of the foregoing reasons, the government respectfully requests that this Court deny
the Motion in Limine of I. Lewis Libby and reject the defendant's suggestion that the government
has failed to provide all information regarding the immunity order provided to witness Ari Fleischer
to which the defendant is entitled.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-5300
Dated: January 28, 2007
9
Case 1:05-cr-00394-RBW Document 256 Filed 01/29/2007 Page 10 of 10
CERTIFICATE OF SERVICE
[snippage]
10
Saturday, January 27, 2007
Libby Memorandum to Discover Fleisher's Immunity Agreement [Doc 255]
This is not the only Motion filed by Libby "today." See also Motion In Limine, which is a request to exclude introduction of any testimony regarding the reason Fleisher gave for seeking immunity. That is, to not ask the question, and not admit the Washington Post 1x2x6 article as evidence. Fleischer now claims (maybe has claimed from the start, we don't know) this article is what caused him to think he was in potential legal jeopardy. [Doc 254-1]
My first reaction is that Libby will lose this discovery motion. In spite of a clever attempt to equate immunity in the leak investigation with immunity on a Libby false statements investigation, the two items are not the same thing.
For all Fitzgerald knew, Fleisher would testify that he read the INR and blabbed as a lone wolf, not hearing of Mrs. Wilson from either Libby or Rove.
The best outcome for Libby is to exclude the witness altogether. I'm pondering what sort of rationale and motion practice might be used in that regard.
In any event, Libby is setting the stage that certain testimony by Fleischer be inadmissible, and with his Motion In Limine, he is specifying items that he argues should not come into evidence. The argument at appeal will be that the objectionable Fleisher testimony and/or evidence should not have been admitted, and that its presence swung the jury.
Case 1:05-cr-00394-RBW Document 255 Filed 01/27/2007 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MEMORANDUM OF I. LEWIS LIBBY REGARDING THE GOVERNMENT'S
OBLIGATION TO PRODUCE DOCUMENTS AND INFORMATION RELEVANT
TO MR. FLEISCHER'S GRANT OF IMMUNITY
On January 25, the Court requested that the defense provide legal authority in support of its request that the government produce any and all documents or information concerning communications between the government and Ari Fleischer (directly or through counsel) regarding the expected testimony Mr. Fleischer would provide if granted immunity. Mr. Libby submits this memorandum in response to that request.
BACKGROUND
In a letter dated December 29, 2006, counsel for Mr. Libby requested that the government, in accordance with the requirements set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), produce potentially exculpatory evidence relating to the government's grant of immunity to Ari Fleischer, a key witness for the prosecution. In particular, defense counsel requested "[a]ny proffer that Ari Fleischer made to the government, either in person or through counsel, before receiving immunity." Counsel for the government responded, in a letter dated January 10, 2007, that "Mr. Fleischer made no proffers to the government before he received immunity."
- 1 -
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To ensure the government understood the exact nature of Mr. Libby's request, defense counsel sent a follow-up letter, dated January 11, 2007, explaining that:
At bottom, what we want to know is whether Mr. Fleischer was given "blind immunity," in that the government had no idea from discussions with his counsel as to what he would say once immunized, or instead did his counsel communicate in some fashion to the government about the expected nature of Mr. Fleischer's testimony, orally or in writing, prior to the grant of the immunity order. If Mr. Fleischer's attorneys did make an oral proffer of any nature, please provide us with either the notes taken during that proffer or a description of its contents.
In other words, defense counsel asked the government to confirm that neither Mr. Fleischer nor Mr. Fleischer's counsel "on Mr. Fleischer's behalf" offered any descriptions, of any nature, regarding Mr. Fleischer's expected testimony should the government decide to grant him immunity.
Counsel for the government, in a letter dated January 12, 2007, responded that "Mr. Fleischer made no proffers to the government prior to his being given a grant of immunity." Counsel for the government concluded that it possessed "no other properly discoverable information regarding the circumstances surrounding [Mr. Fleischer's] grant of immunity to which [defense counsel] is entitled."
On January 26, counsel for Mr. Libby summarized for the Court the government's response to the foregoing requests and noted that, based on this response, the defense concluded that Mr. Fleischer had been granted "blind immunity." Jan. 25, 2007 Afternoon Trial Tr. at 119. Counsel for the government thereafter indicated that Mr. Fleischer had not, in fact, been granted blind immunity but maintained that it nonetheless did not have "any proffers that would qualify in our view" as discoverable. Id. It stated that "[t]here were no factual proffers made by Mr. Fleischer" to the government. Id. Subsequently, in response to questions from the Court, the government's counsel stated that he "got no specifics as to what [Mr. Fleischer's] proffer would
- 2 -
Case 1:05-cr-00394-RBW Document 255 Filed 01/27/2007 Page 3 of 7
be about," and then made what appear to be inconsistent statements about whether he had learned that Mr. Fleischer could provide information about Mr. Libby in particular. Id. at 120. Finally, the government's counsel made clear that it did know, prior to granting Mr. Fleischer immunity, that Mr. Fleischer did have "some relevant knowledge" about the case. Id. at 122. And it made clear that it gave Mr. Fleischer immunity for the purpose of obtaining that information:
I didn't want to give immunity. And I did it reluctantly because I didn't have information and I wanted [it] . . . . I'm not going to represent conversations from two years ago, other than that I did not know what we were going to get when he went into the Grand Jury, other than I knew it was going to be relevant to the case. [Defense counsel is] not entitled to discovery on it.
Id. at 123-24 (emphasis added).
The government counsel's statements at trial thus indicate the following: (l) Mr. Fleischer, himself or through counsel, communicated to the government that he had information relevant to the government's case, and about which he would not testify unless the government granted him immunity from prosecution; (2) Mr. Fleischer, himself or through counsel, gave the government at least some indication of the nature of the information about which he could testify, see id. at 122 ("We understood [before giving immunity] that Mr. Fleischer had some relevant knowledge, and he had information. He spoke to people. He did something with information."); and (3) the government determined that the testimony Mr. Fleischer would provide would be relevant to its case and for that reason granted Mr. Fleischer immunity. Notwithstanding the foregoing, the government maintains that Brady and Giglio do not require disclosure of information or documents concerning communications between Mr. Fleischer (or his counsel) and the government relating to the government's grant of immunity to
- 3 -
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Mr. Fleischer. It insists that because such communications did not result in formal factual proffers, they are not discoverable. The government is incorrect.
As explained below, Brady and Giglio require disclosure of any information or evidence tending to show that the testimony Mr. Fleischer is expected to provide against Mr. Libby is bargained-for testimony. That is true regardless of the nature of the bargain (express or tacit), the form of the communications that resulted in the bargain (oral or written), or the person who engaged in the communications (Mr. Fleischer himself or his counsel on his behalf).
ARGUMENT
Brady v. Maryland makes clear that the government must disclose all "evidence favorable to the accused." 373 U.S. 83, 87 (1963). In Giglio v. United States, 405 U.S. 150 (1972), the Court faced the question whether Brady required the government to disclose an agreement with a witness under which the government granted the witness immunity in exchange for the witness's testimony. The Court held that Brady required such disclosure because "evidence of any understanding would be relevant to [the witness's] credibility," and is therefore evidence "the jury is entitled to know." Giglio, 405 U.S. at l 54-55 (emphasis added). As one court has explained in a related context, "any information that reveals the nature of the negotiation process that led to the leniency agreement is relevant to the witness's motives to testify and must be disclosed under Giglio." United States v. Sudikoff 36 F.Supp.2d 1196 (C.D. Calif. 1999).
Giglio does not, contrary to the government's suggestion, excuse the government from disclosing evidence relating to an immunity deal simply because the witness's expected testimony has not been memorialized in the form of a fact-specific, written proffer. As the D.C. Circuit has explained, the "point" of Giglio is that an immunity agreement "may give a person a
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motive that the jury must be permitted to evaluate." In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 894 & n.6; see also Brown v. Wainwright, 785 F.2d 1457, 1465 (11th Cir. 1986) ("The constitutional concerns address the realities of what might induce a witness to testify falsely, and the jury is entitled to consider those realities in assessing credibility."). The mere fact that an immunity agreement is not accompanied by a written proffer cannot deprive evidence of that agreement of its impeachment value or exculpatory nature. To the contrary, the basic, unassailable principles of Brady and Giglio make clear that any statements made by a witness or his counsel to the effect that the witness would, in return for immunity, provide testimony relevant to the government's prosecution are discoverable by the defense.
Likewise, the fact that the bargain between the government and the witness may have been tacit rather than express is immaterial. See, e.g., United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) ("While it is clear that an explicit agreement would have to be disclosed because of its effect on [the witness's] credibility, it is equally clear that facts which imply an agreement would also bear on [the witness's] credibility and would have to be disclosed"). And it also does not matter whether the relevant communications are made by the witness himself or by counsel on the witness's behalf. See Campbell v. Reed, 594 F.2d 4, 6 (4th Cir. 1979) (finding a Brady/Giglio violation where the government failed to disclose an immunity agreement communicated by the government to the witness's attorney but not the witness).
Instead, the only question that must be asked under Brady and Giglio is whether the communications in question reveal that the testimony being provided is the result of negotiations between the witness and the government. For the reasons described above, it appears that that is
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exactly what occurred in Mr. Fleischer's case. Accordingly, the information and evidence Mr. Libby seeks are plainly discoverable.
Should the Court harbor any doubt on this point, Mr. Libby submits that the proper course is for the Court to review the materials in camera review before making any determination, and (depending on the Court's determination) to preserve the material under seal for appellate review. See, e.g., United States v. Jordan, 316 F.3d 1215, 1252 (11th Cir. 2003) ("Not infrequently, what constitutes Brady material is fairly debatable. In such instances, the prosecutor should mark the material as a court exhibit and submit it to the court for in camera inspection."); United States v. Murgas, (N.D.N.Y. 1997) (concluding that, where the government's obligation's under Brady is unclear, "the prudent course" is for the government to either turn the relevant information over to the defense, or if there exists a doubt, to the court for in camera inspection). 1
CONCLUSION
For the foregoing reasons, Mr. Libby respectfully requests that the Court order the government to comply with his discovery request under Brady and Giglio.
--
1 Mr. Libby reserves the right, following the examination of Mr. Fleischer, to subpoena Mr.
Fleischer's counsel and submit to the jury any communications between Mr. Fleischer's counsel
and the government -- such communications being clearly non-privileged.
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Case 1:05-cr-00394-RBW Document 255 Filed 01/27/2007 Page 7 of 7
Dated: January 26, 2007
Respectfully submitted,
Theodore V. Wells, Jr. William H. Jeffress, Jr.
John D. Cline
- 7 -
Libby Motion in limine to Preclude Fleisher Immunity Evidence [Doc 254]
Fleischer immunity timeline ...
- May 19, 2003 - Fleischer announces resignation
- After resignation announcement, before resignation is effective, Fleisher "learns then leaks"
- July 15, 2003 - Fleisher resignation effective
- September 28, 2003 - Washington Post Sunday Page A01 article, "Bush Administration Is Focus of Inquiry," by Mike Allen and Dana Priest, precipitates Fleischer to obtain legal counsel (that day or the next day) and began discussing with his attorney what kind of predicament he was in
- September 30, 2003 - First Gonzales letter to WH employees specifying the preservation and production of evidence
- December 30, 2003 - Fitzgerald is appointed Special Counsel
- February 6, 2004 - Comey expands scope of Fitzgerald authority to include "investigate and prosecute violations of any criminal laws committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses ..."
- February 13, 2004 - Fitzgerald grants immunity to Fleischer (date noted at page 6 of Libby's January 27, 2007 Motion in limine [Doc 254]) (the filing reproduced below)
Case 1:05-cr-00394-RBW Document 254-1 Filed 01/27/2007 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOTION IN LIMINE OF I. LEWIS LIBBY
Mr. Libby respectfully submits this motion in limine to preclude the government from (1) eliciting testimony from Ari Fleischer concerning the reasons why he sought a grant of immunity before speaking with investigators and testifying before the grand jury, and (2) introducing through Mr. Fleischer a September 28, 2003 Washington Post article that supposedly spurred his decision to seek immunity.
I. BACKGROUND
Mr. Fleischer is expected to testify for the government beginning on Monday, January 28, 2007. The government has informed the Court that it intends to elicit testimony from Mr. Fleischer on direct examination about why he sought immunity. According to the government, on September 27 or 28, 2003, Mr. Fleischer:
[R]ead a newspaper article, which indicated that there was a criminal investigation into the possible unauthorized disclosure of a covert agent. And he read that, and he knew that he had conveyed information about that woman, Valerie Wilson, to reporters. That was information that had been previously conveyed to him by Mr. Libby.And he realized, when there was an ongoing criminal investigation, I don't want to put words in his mouth, but basically it was one of those
Case 1:05-cr-00394-RBW Document 254-1 Filed 01/27/2007 Page 2 of 7
moments when your heart goes in your throat, and you think, I could be in very big trouble here. And the following day he obtained legal counsel and began discussing with his attorney what kind of predicament he was in.
Jan. 25, 2007 P.M. Trial Tr. at 109.
The newspaper article in question, Bush Administration Is Focus of Inquiry, appeared in the Washington Post, and it announced the start of the Justice Department's investigation into the leak to Robert Novak of Valerie Plame's name and occupation. In addition to reporting that "a senior administration official said that two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife," which disclosure was "meant purely and simply for revenge," the article contained several misleading statements concerning the laws applicable to the disclosure of a covert CIA employee's identity. Id. at 108, Mike Allen & Dana Priest, Bush Administration Is Focus of Inquiry, WASH. POST, Sept. 28, 2003 (attached as Exhibit A).
II. ARGUMENT
A. The Defense Has Not -- and Will Not -- Put At Issue The Reasons Behind
Mr. Fleischer's Decision To Seek Immunity
On Thursday, the Court indicated that the government's ability to offer the article and testimony from Mr. Fleischer might depend on the extent to which the defense attacked Mr. Fleischer's credibility based on his immunity agreement. The defense has not opened the door, and does not plan to open the door, to testimony about the reasons that contributed to Mr. Fleischer's decision to seek immunity. The defense merely plans to bring out the basic fact that Mr. Fleischer has an immunity agreement with the government. The defense is also likely argue to the jury that it should consider whether
2
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this agreement gives Mr. Fleischer a reason to provide testimony in a manner that will curry favor with the government. But the defense will not elicit testimony or make arguments about why Mr. Fleischer chose to seek immunity.
Contrary to what the government has suggested, the defense did not go beyond this position in opening statement. In that statement, defense counsel merely made the unremarkable observation that, because of his immunity deal, "Mr. Fleischer is in a different position than any other witness in this case." Jan. 23, 2007 P.M. Trial Tr. at 36. Defense counsel also commented that Mr. Fleischer "may have issues where [his] credibility should be questioned because he has an arrangement." Id. at 38. These statements cannot fairly be interpreted to suggest that the defense has put at issue the reasons why Mr. Fleischer sought immunity.
B. The Government's Proposed Evidence Is Not Relevant, is Highly
Prejudicial and Should be Excluded
The government's attempt to introduce two inflammatory pieces of evidence should fail for a basic reason: the government offered no rationale for why Mr. Fleischer's testimony concerning his state of mind after reading the Washington Post article is relevant to any matter at issue in this case. Instead, it appears that the government is attempting to persuade the jury through Mr. Fleischer's testimony that Mr. Libby had a motive to lie because he was in a similar position to Mr. Fleischer. Because Mr. Fleischer feared criminal prosecution in light of the article in question, this argument goes, Mr. Libby must have have a similar fear, and therefore motive to lie. This Court should not allow the government to prejudice Mr. Libby by using testimony concerning Mr. Fleischer's state of mind for this impermissible purpose. Accordingly, the
3
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government should be precluded from eliciting such testimony from Mr. Fleischer under Rule 403.
The evidence the government seeks to admit through Mr. Fleischer is prejudicial to Mr. Libby for another reason as well. If Mr. Fleischer testifies as the government has represented he will -- that reading the article caused him to fear that he may have committed a crime by disclosing to reporters that Joseph Wilson's wife worked for the CIA, the jury may reach two mistaken and highly prejudicial conclusions. First, the jury may erroneously conclude that Mr. Fleischer in fact committed a crime (disclosing the identity of a covert CIA employee) that he was never charged with. Second, and even more perverse, the jury may be misled into believing that Mr. Libby, who allegedly told Mr. Fleischer information about Mrs, Wilson, also committed the same hypothetical crime. That would be improper. In an analogous situation, where a government witness has pled guilty, that plea "obviously may not be used as substantive evidence of the guilt" of a defendant. See, e.g., United States v. Tarantino, 846 F.2d 1384, 1404-05 (D.C. Cir. 1988). This reasoning applies with equal or greater force here. The jury should not consider Mr. Fleischer's fear of prosecution as having any bearing on Mr. Libby's guilt or innocence. This is particularly true because Mr. Fleischer's state of mind relates to a offense that neither he nor Mr. Libby was ever charged with.
The Court has explicitly held that this trial will focus on Mr. Libby's state of mind with respect to the charged offenses, and that "the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied . . . ." June 2, 2006 Order at 2. The government's proposed testimony threatens to distract the jury
4
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by encouraging them to focus instead on Mr. Fleischer's state of mind concerning uncharged conduct, and to impute that state of mind to Mr. Libby.
The Court and the parties have discussed at some length whether evidence of the underlying investigation by the government would be admissible in this case. The government has stated that evidence concerning the underlying investigation "lack[s] relevance to the issues on trial." Gov't Motion in limine at 6 (Oct. 30, 2006). Indeed, when asked by the Court what relevance evidence concerning Mr. Fleischer's motivations for seeking immunity would have, the government failed to provide any direct answer. Because whatever (as yet unarticulated probative value Mr. Fleischer's testimony would have is outweighed by the risk of unfair prejudice and confusion of the issues, this evidence should be excluded under Rule 403. See Fed. R. Evid. 403 advisory committee's note (defining "unfair prejudice" as "an undue tendency to suggest decision on an improper basis"). 1
In addition, there is a fundamental disconnect between the evidence the government seeks to offer and Mr. Fleischer's decision to seek immunity. The government seeks to offer evidence that Mr. Fleischer read a Washington Post article that made him think he "could be in very big trouble " and the next day "obtained legal counsel and began discussing with his attorney what kind of a predicament he was in."
--
1
The government's argument that the September 28 article may be admissible in other
circumstances is no reason to allow Mr. Fleischer to testify about the effect the article
had on his state of mind at the risk of substantial prejudice to Mr. Libby. The Court
therefore should reject the government's argument that the prejudice to Mr. Libby as
a result of Mr. Fleischer's testimony will be negligible because the government
intends to introduce (i) a similar October 12, 2003 article that Mr. Libby may have
reviewed; and (ii) testimony that the F_B_I. was investigating the allegations in the
September 28 article. See Jan. 25, 2005 P.M. Trial Tr. at 111-12.
5
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Jan. 25, 2007 P.M. Trial Tr. 109. Mr. Fleischer was not granted immunity until February 13, 2004. The government's own version of events indicates that Mr. Fleischer's decision to request immunity was based on discussions with his attorney, not on a newspaper article.
Under these circumstances, it would be misleading to suggest to the jury that an incorrect statement of the law in a Washington Post story, rather than legal advice, led Mr. Fleischer to seek immunity. If the government makes such a suggestion at trial, the defense should have the right to inquire about the other factors that contributed to Mr. Fleischer's decision-making -- including what advice, if any, his attorney provided about immunity.
Finally, the testimony the government seeks to elicit will not rehabilitate Mr. Fleischer's credibility in the event that the defense urges jurors to consider his immunity agreement when they evaluate his testimony. That is, evidence that Mr. Fleischer was afraid of prosecution based on a Washington Post article will not rebut the defense's argument that the immunity deal gives Mr. Fleischer a reason to shade his testimony in a way that will please the government.
In sum, the government has articulated no legitimate purpose for the testimony it would like to elicit from Mr. Fleischer.
6
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CONCLUSION
For the foregoing reasons, I. Lewis Libby respectfully requests that the Court grant this motion in limine and preclude the government from eliciting testimony from Ari Fleischer regarding his reasons for seeking immunity as well as the September 28, 2003 article on which he purportedly based that decision.
Dated: January 26, 2007
7
Thursday, January 25, 2007
Fitzgerald Motion in limine to Admit NDA's [Doc 253]
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 1 of 7
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 MOTION IN LIMINE TO ADMIT
NONDISCLOSURE AGREEMENTS EXECUTED BY DEFENDANT
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special
Counsel, respectfully submits this motion in limine to admit nondisclosure agreements executed by
the defendant. As discussed below, these agreements are highly relevant to defendant's state of mind
and motive to lie at the time of the charged offenses, and should be admitted.
INTRODUCTION
As this Court is aware, defendant is charged with obstruction of justice, perjury, and making
false statements to investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001 in connection
with an investigation concerning leaks to reporters of previously-classified information regarding
the employment of Valerie Plame Wilson, the wife of former Ambassador Joseph Wilson. While
the government has agreed not to present evidence at trial to establish that Ms. Wilson's employment
status was in fact classified in June and July 2003, the government intends to offer proof to establish
that: (a) the FBI and grand jury investigations defendant sought to obstruct concerned the possible
unauthorized disclosure of classified information and the possible unlawful disclosure of a covert
agent; (b) the false information defendant is charged with providing to investigators and the grand
jury was material to both the FBI and the grand jury investigations; (c) defendant knowingly made
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 2 of 7
false statements to the FBI and the grand jury; and (d) defendant had a motive to lie in that, at the
time he made the charged false statements, he had reason to fear that the information regarding Ms.
Wilson that he disclosed to reporters may have been classified, and that Ms. Wilson may have been
a covert CIA officer, and was well aware of the potential consequences of his having disclosed
classified information. Specifically, the government intends to prove that, at the time he made the
charged false statements, defendant was aware that, if Ms. Wilson's employment status was in fact
classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal
prosecution under a number of statutes, defendant faced the possible loss of his security clearances,
removal from office, and termination from employment as a result of his disclosures to New York
Times reporter Judith Miller and Time magazine reporter Matthew Cooper.
As part of its proof on this issue, the government seeks to introduce in evidence at trial five
non-disclosure agreements executed by defendant during the course of his employment as the Vice
President's Chief of Staff and National Security Advisor, and as the President's National Security
Advisor. See GX5A-GX5F, copies of which have been provided to the Court and defense counsel.
These agreements are signed instruments having independent legal significance, and thus are non-
hearsay, and also are admissible as admissions of a party-opponent. Because these agreements are
probative of defendant's state of mind at the time of the charged offenses, they should be admitted.
ARGUMENT
In this case, the defendant is charged with obstruction, perjury, and false statements with
respect to FBI and grand jury investigations into whether crimes were committed by the public
disclosure of the CIA employment of Valerie Plame Wilson. Evidence of defendant's knowledge
of the possibility that this information was classified, or that Ms. Wilson was a covert officer of the
2
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 3 of 7
CIA, and defendant's knowledge of all the potential adverse consequences of disclosure of classified
information, or information concerning the identity of a covert officer, is obviously highly probative
of defendant's motive to lie to the FBI and the grand jury in this case and highly probative of the
facts, which the government is obligated to prove beyond a reasonable doubt, that defendant acted
knowingly and intentionally in making false statements to both the FBI and the grand jury and, with
respect to Count 1, that he acted with the intent to obstruct the grand jury's investigation. Defense
counsel argued repeatedly in his opening statement that defendant had no motive to lie. See Tr. 54
("He's innocent and no motive to lie."); Tr. 88-89 ("Now, Mr. Fitzgerald suggested that Mr. Libby
might have a motive to lie because Mr. McClellan, the President's Press Secretary, went on T.V. and
said, anybody involved in leaking classified information, you are going to lose your job. You won't
be part of this administration. Well, you will find that Mr. Libby was not concerned about losing
his job in the Bush administration."); Tr. 104 ("He is innocent and no motive to lie.") Thus, a
fundamental question the jury will be asked to decide in this case is whether defendant lied
intentionally in order to avoid the potential consequences of having disclosed information concerning
Ms. Wilson's employment to reporters.
The government seeks to offer evidence demonstrating that one of the grounds for
defendant's motive to lie was his awareness of his duty to safeguard classified information, and of
the potential consequences of breaching that duty, an awareness defendant obtained in part through
one or more "security indoctrination[s]" concerning the nature and protection of classified
information. On January 23, 2001, January 25, 2001, February 7, 2001, May 11, 2001, and March
6, 2003, respectively, during the course of defendant's employment in the Office of the Vice
President, defendant executed five separate non-disclosure agreements acknowledging that he
3
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 4 of 7
received such indoctrination, and that he was specifically warned of the consequences of improperly
disclosing classified information. By executing these agreements, defendant acknowledged that he
was advised of his obligations with respect to classified information, including marked and
unmarked written communications and oral communications, to which he had access in the scope
of his employment as the Vice President's Chief of Staff and National Security Advisor, including
his obligations not to disclose such information to unauthorized persons and, in the event of
uncertainty, to confirm with an authorized official prior to disclosure that the information at issue
is unclassified. Defendant also acknowledged that he had been advised that his "unauthorized
disclosure, unauthorized retention, or negligent handling of classified information . . . could cause
damage or irreparable injury to the United States or could be used to the advantage of a foreign
nation." Finally, defendant acknowledged that he had been advised of the potential penalties for
unauthorized disclosure of classified information, including "termination of any security clearances
I hold, removal from any position of special confidence and trust requiring such clearances, or the
termination of my employment . . . ," and potential prosecution under various criminal statutes.
Rules 401 and 402 of the Federal Rules of Evidence generally require the admission of
"relevant" evidence, which is evidence "having 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 would be
without the evidence." The nondisclosure agreements executed by defendant tend to establish that
defendant undoubtedly fully understood the serious obligations imposed by the nondisclosure
agreements and the severe potential consequences of violating them. Given other evidence that
will establish that defendant was also aware at the time he made the charged false statements that
Ms. Wilson's employment may have been classified, and that the FBI and grand jury were
4
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 5 of 7
investigating possible crimes arising from the disclosure of Ms. Wilson's CIA employment to
reporters, the nondisclosure agreements are directly relevant to the issue of whether defendant lied
intentionally about his role in receiving and disseminating information concerning Ms. Wilson's
employment. Thus, the agreements should be admitted.
The relevance of the nondisclosure agreements is not undermined by the fact that defendant
has not been charged with disclosing classified information or violating the agreements. At the time
defendant made the charged false statements, he knew that he had disclosed to reporter Miller, and
confirmed to reporter Cooper, that Ms. Wilson worked for the CIA. Defendant's awareness that
these disclosures could constitute violations of the nondisclosure agreements he had executed, and
the potential consequences of violating those agreements, is directly relevant to the most important
issue before the jury in this case defendant's state of mind at the time of the charged false
statements. See generally, United States v. Safavian, 435 F.Supp.2d 36, 46 (D.D.C. 2006)(district
court allowed the government to introduce e-mails related to public official's efforts on behalf of
private parties, not to prove the official's actual abuse of his government employment or acceptance
of bribes but, rather, to prove his motive to lie when speaking to investigating agents). Consistent
with the position the government has taken prior to, and during trial, the government has no
objection to a limiting instruction stating that the nondisclosure agreements are to be considered only
with respect to defendant's state of mind, and not as an allegation that the defendant in fact disclosed
classified information in violation of the agreements.
5
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 6 of 7
CONCLUSION
For all of the foregoing reasons, the government respectfully requests that it be permitted to
introduce Government Exhibits 5A through 5F into evidence for the limited purpose of establishing
defendant's state of mind at the time of the charged offenses.
Respectfully submitted,
/s/
PATRICK J. FITZGERALD
Special Counsel
Debra Riggs Bonamici
Kathleen M. Kedian
Peter R. Zeidenberg
Deputy Special Counsels
Office of the Special Counsel
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
202-514-1187
Dated: January 25, 2007
6
Case 1:05-cr-00394-RBW Document 253 Filed 01/25/2007 Page 7 of 7
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 25th day of January 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
Dated: January 25, 2007
Tuesday, January 23, 2007
Government Response to Dow Jones 12/20/06 Motion to Unseal
Transcribed by hand, mostly. The OCR attempt was really feeble on this one, being a scan of a photocopy, etc.
No surprises in the opinion - the government is willing to release whatever becomes public via court proceedings, not release material just because the parties have talked about it or news accounts have surfaced, and urges that the Motion to Unseal be dismissed or held in abeyance until after the conclusion of the Libby trial.
There is no statement in this pleading that "this investigation is ongoing."
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
.............................................
:
In re Grand Jury Subpoenas, Judith Miller : Case Nos. 04-3138, 04-3139 and
In re Grand Jury Subpoenas, Matthew Cooper : 04-3140
In re Grand Jury Subpoenas, Time, Inc. :
.............................................
GOVERNMENT'S RESPONSE TO MOTION OF AMICUS CURIAE
DOW JONES AND THE ASSOCIATED PRESS TO UNSEAL
The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special Counsel, respectfully submits its response to the motion of amicus curiae Dow Jones and the Associated Press to unseal additional parts of the redacted portion of the Court's opinion issued on February 15, 2005 and of the ex parte affidavits of the Special Counsel dated August 27, 2004 and September 27, 2004. As set forth below and in the sealed ex parte affidavit accompanying this response, the Special Counsel requests that this Court deny the motion without prejudice to a renewed motion to unseal filed after the completion of the trial in the district court in United States v. Libby, which commenced January 16, 2007. 1 In sum, the Special Counsel submits that disclosures of grand jury information made made in the course of trial of the Libby case may render some of the issues raised by the pending motion moot, and that disclosure of grand jury information while the case is on trial is best managed
--
1 In the alternative, this Court could hold be pending motion in abeyance pending
completion of the Libby trial.
by Judge Walton. 2 In any event, this Court's (and the Special Counsel's) evaluation of what portions of the redacted opinion and the sealed affidavits still require protection under the rule of grand jury secrecy is best made after the completion of the Libby trial. There is no prejudice to deferring any further unsealing until the trial has run its course. Awaiting completion of the trial will avoid piecemeal consideration of the issues.
BACKGROUND
The consolidated appeals in this case arose from civil contempt proceedings conducted during an ongoing federal grand jury investigation concerning alleged leaks to reporters of purportedly classified information by one or more government officials. New York Time reporter Judith Miller, Time Magazine reporter Matthew Cooper, and Cooper's employer, Time, Inc., Challenged grand jury subpoenas issued to them, claiming that a reporter's privilege relieved them of their obligation to provide testimony or documents in response to the subpoenas. The district court rejected the reporters' claims and, when the reporters refused to testify despite the court's unfavorable rulings, held them in civil contempt of court.
Although the government took the position in the district court that it was not legally required to make any factual showing prior to demanding compliance with the subpoenas,
--
2 In the Libby case, the district court has overseen extensive pre-trial proceedings
pertaining to discovery and has entered protective orders in the course of those proceedings as
well as orders establishing procedures for daily release of trial exhibits to the media. The
government has complied with its discovery obligations, including under Rule 16, the Jencks Act
and Brady.
2
in order to assure the court that the subpoenas were appropriate, the government submitted, ex parte and under seal, detailed descriptions of the progress of the investigation which included specific references to grand jury witness testimony and materials identified as "classified," and an extensive description of the strategy and direction of the investigation. Likewise, in appeal, in order to maintain the confidentiality of the sealed materials and the integrity of the ongoing investigation, the government provided its ex parte submissions to this Court ex parte and under seal.
On February 15, 2005, a panel of this Court affirmed the judgements of the district court, with tall three members of the panel voting to affirm. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir. 2005). Judge Tatel wrote a separate opinion in which he set forth a detailed analysis of the evidence contained in the Special Counsel's ex parte submissions to explain his conclusion that the information sought by the subpoenas was "both critical and unobtainable from any other source," and that, thus, and conceivable privilege was overcome. In re: Grand Jury Subpoena, Judith Miller, 397 F.3d at 989-91 (Tatel, J., concurring). The other two members of the panel concurred in this portion of Judge Tatel's opinion. Id at 973 (Sentelle, J., Opinion for the Court)(stating that "[a]ll further believe, for the reasons set forth in the separate opinion by Judge Tatel, that if such a privilege applies here, it has been overcome.") The Court redacted those portions of Judge Tatel's opinion that referred to classified and grand jury information, and the publicly- available opinion notes these redactions. Id at 1002. The redacted portions of Judge Tatel's
3
separate opinion (the "redacted pages") were filed under seal. This procedure facilitated review by the Supreme Court without compromising classified information or grand jury material.
This Court denied the reporters' petitions for rehearing on April 19, 2005. The reporters' petitions for certiorari were denied on June 27, 2005
On October 28, 2005, the grand jury returned a five-count indictment charging I. Lewis :Scooter" Libby with obstruction of justice, perjury, and making false statements to federal investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001. The trial in that case commenced January 16, 2007.
As the Court is aware, on November 2, 20005, Dow Jones made its initial motion to unseal the redacted portions of the Court's opinion of February 15, 2005. The government submitted a response and a sealed ex parte affidavit evaluating the redacted portions of the Court's opinion and, at the Court's direction, the two sealed ex parte affidavits of the Special Counsel. The Special Counsel did not object to disclosure of portions of the Court's redacted opinion, nor to disclosure of portions of one of the sealed affidavits.
On February 6, 2006, this Court issued an opinion expressing its agreement with the Special Counsel's analysis and ordered portions of the redacted opinion published and docketed a redacted version of the Special Counsel's affidavit of August 27, 2004. In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1128 (D.C.Cir. 2006)> In its decision, this Court stated:
4
But just as some parts of the record may now be made public, others must remain secret. After reviewing the special counsel's submissions, we agree that some information in the eight pages and the special counsel's affidavits unquestionably remains grand jury material that Rule 6(e) obligates us to maintain under seal. Its publication at this juncture could identify witnesses, reveal be substance of their testimony and -- worse still -- damage the reputations of individuals who may never be charged with crimes.
Id. at 1141.
On December 20, 2006, the amici curiae filed the pending motion to unseal, arguing that events subsequent to the Court's opinion on the first motion to unseal now require that the issue be revisited. The motion focuses on two subsequent events. Citing press reports from June, July and September 2006, the motion suggests that because several individuals have made public statements concerning their involvement in the investigation that this Court should now reconsider its ruling that certain portions of the redacted opinion and the Special Counsel's affidavits are no longer protected by Rule 6(e). Motion at 5-6. For the reasons stated in this response and the accompanying affidavit, the Special Counsel submits that events to date do not justify lifting the protection of Rule 6(e) as to most of the currently redacted material, 3 but that disclosures necessitated by the Libby trial may justify disclosure
--
3 Beginning before the return of the indictment and continuing through the present
Special Counsel has arranged to have documents obtained and generated during the course of the
investigation, including grand jury transcripts, reviewed by the appropriate agencies for the
purpose of identifying classified information and of assessing whether relevant documents may
be declassified, with a view toward making such documents available to defendant in discovery,
and to facilitate the use of such documents in public filings and proceedings. As of this date,
the presence of classified information no longer provides a reason for maintaining the secrecy of
the redacted pages or the sealed portions of the affidavits.
5
of some materials and that it would be inefficient and imprudent for this Court to review all of the sealed material, possibly releasing some during trial, and then likely have to revisit the issue again in light of disclosures at trial.
The pending motion seeks disclosure of additional grand jury materials so "the public will gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters. . . ." Motion at 2. The motion asserts that there is public interest in the arguments and evidence presented by the Special Counsel in the contempt proceedings because "the public learned that the Special Counsel's pursuit of those reporters was entirely unnecessary for him to determine who had leaked Ms. Plame's name to Robert Novak, the columnist who first published it." Motion at 1. For the reasons discussed below, the Special Counsel submits that the sated interest in disclosure of the materials does not compel this Court to consider the issue during, rather than after, the Libby trial.
ARGUMENT
I. Applicable Law
There is no dispute as to the governing legal principles set forth by this Court in its decision of February 4, 2006. In re: Grand Jury Subpoena, 438 F.3d 1138, 1139-40. Noting "our criminal justice system's longstanding commitment to grand jury secrecy," this Court canvassed the justifications for grand jury secrecy advanced by the Supreme Court in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979). 438 F.3d
6
at 1139-1140. Among those justifications are protecting the ability of the grand jury to obtain full and complete cooperation from witnesses and assuring that persons who are under suspicion but ultimately not charged by the grand jury will not be faced with public ridicule and embarrassment. Id. Accordingly, this Court has stated that grand jury secrecy extends to the identities of witnesses, the substance of testimony, and the strategy ad direction of the investigation. Id. at 1140.
The Court went on to note that "the special counsel's investigation is ongoing only heightens the need for maintaining grand jury secrecy. . . . " 438 F.3d at 1141. Of course, "[t]he interest in grand jury secrecy may remain high, even after the termination of the grand jury's work, if the grand jury has terminated without returning an indictment against the persons who were investigated." Beale, Bryson, Felman & Elston, Grand Jury Law and Practice § 5:12 (2d ed. 2005). The same principle holds true where an indictment is returned against one or more subjects of an investigation, but not others. In addition, when a grand jury investigation is concluded, whether "all related criminal actions have terminated" is a factor to be considered in evaluating whether disclosure is appropriate. Id. ("the interest in grand jury secrecy may be substantial during the period of time between indictment and trial") 4 This, although concerns about grand jury secrecy may be lessened after the grand jury has finished its work, those concerns remain weighty. As the Supreme Court put it in Douglas
--
4 Of course, grand jury material is routinely disclosed at criminal trials as witnesses
publicly repeat testimony they gave to the grand jury, prior grand jury testimony is used to
impeach, or upon some other showing of particularized need. Grand Jury Law and Practice §
5:l2.
7
Oil:
[I]n considering the effects of disclosure on grand jury proceedings, the courts must consider not only the immediate effects upon a particular grand jury, but also the possible effect upon the functioning of future grand juries. Persons called upon to testify will consider the likelihood that their testimony may one day be disclosed to outside parties. Fear of future retribution or social stigma may act as powerful deterrents to those who would come forward and aid the grand jury in the performance of its duties.
441 U.S. at 222.
As this Court noted in its earlier opinion in this case, Rule 6(e) required secrecy only "to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." 438 F.3d at 1140. This rule "reflects the common-sense proposition that secrecy is no longer 'necessary' when the contents of grand jury matters have become public." Id. That said, this Court has also stated that "Rule 6(e) does not create a type of secrecy which is waived once public disclosure is made." Id. quoting Barry v. United States, 740 F.Supp. 888, 891 (D.D.C 1990). The question becomes whether "information is sufficiently widely known that it has lost its character as Rule 6(e) material." Id. quoting In re North, 16 F.3d 1234, 1245 (D.C.Cir. 1994). Of course, it is vital to focus on what "information" is at issue. This Court has noted that the information such as the identity of a witness may become a matter of public record, while "particular items, documents, or testimony" before the grand jury are not. In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C.Cir. 1998).
Finally, consistent with Fed.R.Crim.P. 6(e) and the interests that underlie grand jury
8
secrecy, this Court has recognized that there is no First Amendment right to access to grand jury proceedings. E.g., In re Motions of Dow Jones & Co., 142 F.3d at 499.
II. The Motion Should be Denied Without Prejudice to Renewing the Motion After the Libby Trial.
The Special Counsel's primary reason for asking this Court to deny the pending motion without prejudice is practical: The evaluation of what grand jury information "is sufficiently widely known that it has lost its character as grand jury material" will be altered by the disclosures made in the course of the Libby trial. As set forth in the accompanying affidavit, the Special Counsel is confident that certain grand jury material will be disclosed during the course of the criminal trial. However, the extent of disclosures may vary substantially depending on what witnesses are called by the defense, what testimony and evidence is offered by the defense, and how the district court rules concerning the admissibility of the evidence. It would be highly inefficient to undertake an analysis of further disclosures based on the pre-trial record, only to have to revisit the matter after the trial.
Furthermore, the Special Counsel submits, based on the pre-trial record, including the press reports cited by the amicus curiae, that very few, if any, additional portions of the redacted opinion and the sealed affidavits have lost their character as grand jury material. 5
--
5 Central to the movants' theory of why there is significant public interest in disclosure of
the facts presented to the Court by the Special Counsel concerning the need for the testimony of
the reporters in question is for the assertion that "the public learned that the Special Counsel's
pursuit of these reporters was entirely unnecessary for him to determine who had leaked Ms.
Plame's identity to Robert Novak, the columnist who had first published it." Motion at 1. That
9
Self-identification by a former subject of a grand jury investigation or public statements of a grand jury witness about his or her testimony do not in and of themselves warrant release of grand jury information. AS discussed above, grand jury secrecy is not subject to waiver by witnesses who are not under an obligation of secrecy. Public revelations by persons about their involvement in a grand jury investigation, even the disclosure of some details, does not eliminate the protections of Rule 6(e), especially for persons under suspicion but not charged with a crime.
Even if events since this Court's February 6, 2006 order justified some additional disclosures, this Court is not compelled to proceed in a piecemeal fashion, releasing some information during the ongoing trial and revisiting the issue post-trial. The "matter of great public importance" cited by movants is the need to "allow the public to gain a full understanding of the Special Counsel's arguments to the Court as to why it was necessary to compel the testimony of two reporters . . ." Motion at 2. The two "significant events" cited in the pending motion occurred approximately three months and six months before the motion was filed. Obviously, information pertinent to the necessity of compelling the testimony of two reporters will be disclosed at trial, and there is certainly no reason why this court must partially address the motion now rather that adopt the more efficient course of
--
assertion ignores the scope of Special Counsel's investigation was not limited to the leak to
Mr. Novak, a fact that is a matter of public record. In re: Grand Jury Subpoena, Judith Miller,
397 F.3d 964, 966-67 (D.C.Cir. 2005)(Sentelle, J., Opinion for the Court): Id. at 1001 (Tatel, J.,
concurring). Indeed, in response to the initial motion of Dow Jones to unseal, the Special
Counsel agreed to the disclosure of paragraph 6 of his affidavit dated August 27, 2004, which
explained that "the investigation of unauthorized disclosures is not limited to Novak."
10
awaiting the completion of the criminal trial and addressing the issue then if the motion is renewed.
CONCLUSION
For all of the foregoing reasons, the Special Counsel respectfully requests that the motion of Dow Jones and The Associated Press be denied without prejudice. In the alternative, the Special Counsel requests that the motion be held in abeyance pending the completion of the ongoing trial in the district court.
Respectfully submitted
PATRICK J. FITZGERALD
Special Counsel
JAMES P. FLEISSNER
DEBRA RIGGS BONAMICI
KATHLEEN M. KEDIAN
Deputy Special Counsels
Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
11
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