"Is a Puzzlement"
[Spoken]

When I was a boy
World was better spot.
What was so was so,
What was not was not.
Now I am a man;
World have changed a lot.
Some things nearly so,
Others nearly not.
There are times I almost think
I am not sure of what I absolutely know.
Very often cause confusion
In conclusion I concluded long ago
In my head are many facts
That, as a poseur, I have studied to procure,
In my head are many facts..
Of which I wish I was more certain I was sure!
Is a puzzlement...
[Sung]
What to tell waiting press
What for instance, shall I say to them of Swift Boats?
Shall I educate them on the ancient wounds?
Shall I tell the press as far as they are able,
To find my form One Eighty and my war notes?
Shall I tell them everyone is like the other,
And the better of the two is really Gallic?
If I tell them this I think they won't believe it-
And I nearly think that they will not perceive me phallic!
When my hero was a king
A Kennedy who knew exactly what he knew,
And his brain was not a thing
Forever swinging to and fro and fro and to.
Shall I, then be like my hero
And be willfully unmovable and strong?
Or is it better to be careful?...
And deny the starlets my blueblood schlong?
Shall I join with other nations in alliance?
Though allies are weak, I'm not best alone!
But allies who try to help protect me,
Are not these the very ones I wish to disown?
Is a danger to be running for office,
Red states seldom want to do what Liberal wishes;
But unless someday somebody clue me in
I'll be stuck on Beacon Hill in apron drying dishes!
There are times I almost think
Nobody sure of what I absolutely know.
Everybody find confusion
In conclusion I concluded long ago
And it puzzle me to learn
That tho' a man may be in doubt that I'm a hero,
Very quickly he will claim...
He'll claim to prove that what I say is not so!
Oh-h-h-h-h-h Sometimes I think that people going mad!
Ah-h-h-h-h-h! Sometimes I think that people not so bad!
But not matter what I think
I must go on living life.
As teller of my legend I must go forth,
Be father to my children and husband to rich wife
Etcetera, etcetera, and so forth.
If my Pal in Gerogetown Schrum, show the way,
Everyday I will revise another way.
If my Pal in Gerogetown Schrum, show the way,
Everyday I do my best for one-more day!
[Spoken]
But...Is a puzzlement!

Soylent Red

When I take you out tonight with me
Valerie, here's the way it's gonna be
You will set behind a team of painted Seals
In the slickest gig you'll ever see.
NVA and Cong better scurry
When I take you out in a flurry
When I take you out in a flurry with my Swift Boat crew
Watch that jungle closely with patience
When I shoot them high-steppin' Asians
Nosy pokes will peak through their shutters and my gun will pop!
The Asians are yellow, the Swift Boat's green
The video camera's a-runnin'
With me in the middle of the scene
In case there's a chance at the White House
Two big .50's winkin' and blinkin'
Ain't no finer rig I'm a thinkin'
You can shut yer hole if yer thinkin' that I'll ever name
That mission in the Swift Boat that will bring me fame
Two big .50's winkin' and blinkin'
Ain't no finer rig I'm a thinkin'
You can shut yer hole if yer thinkin' that I'll ever chat
'Bout that mission in the Swift Boat where I got a Lucky Hat
C-A-M-B-O-D-I-A
Cambodia! That way!

Soylent Red

"The Swift Boat Skipper's Song"

I am the very model of a modern Swift Boat skipper,
I've arrogance from head right down to slipper,
I know the kings of France, and I quote the fights historical
From Dien Bien Phu to Waterloo, in order categorical;
I'm very well acquainted, too, with matters geographical,
I understand directions, though some may say that's laughable,
About Cambodia I'm teeming with a lot o' news,
With many dubious facts about the path that I did choose.
I'm very good at historical amendment;
Especially when it involves a prior commendment:
I've arrogance from head right down to slipper,
I am the very model of a modern Swift Boat skipper.
I know my mythic history, Cam Ranh Bay and Ha Tien;
I dodge from hard timetables, but will fabricate some now and then,
I quote in French all the crimes of Winter Soldier,
And stand behind my treason since I've got older;
I can tell widow millionaires from interns, dumb and chubby,
I'm not above debasing myself, and preening as their hubby!
Then I can hum a bar of "Le Marseillase" in half tones,
And throw a baseball nowhere near the strike zone.
Then I can write a useless bill on naming buildings,
And bolster it a bit with verbal gilding:
I've arrogance from head right down to slipper,
I am the very model of a modern Swift Boat skipper.
In fact, when I know what is meant by "gigolo" and "nuance",
When I can tell at sight a M-16 from Admiral Spruance,
When such affairs as firefights and insertions I'm more wary at,
And when I know precisely when to wear my magic "Lucky Hat",
When I have learnt what progress has been made in weapons systems,
When I bitch about Osama and how we missed 'em—
In short, when I've a smattering of fabricated strife—
I'll beat the Swift Boat skipper meme to inches of its life.
For my military knowledge, reported plucky and adventury,
Was edited the middle of last century;
But still, I soldier on bright and chipper,
I am the very model of a modern Swift Boat skipper.

Soylent Red

"The Shiftboats is a comin.
Their hats are in sight,
Swiftboats is a comin,
There's bailing tonight,
Why dontcha hurry Johnny Kerry Home,
Why dontcha hurry Johnny Kerry Home,
Look here,The Swiftboats is a comin
Theres bailing tonight.

PeterUK

Firefights in jungles and shooting in faces
Transporting spooks out to exotic places
Made up adventures and all that they bring,
These are a few of my favorite things.
Snuffing out Charlie when he tries to hide,
Super 8 cameras on my good side
Beaching my Swift Boat without any dings,
These are a few of my favorite things.
Chucking my medals o'er high White House fences,
Voting down bills that would bolster defenses,
Widows that bankroll some boss windsurfing
These are a few of my favorite things,
When the Swifties,
Run commercials,
When I'm feeling sad,
I simply remember my favorite things,
And then I don't feel, so bad.

Soylent Red

"Mekong River"

"Mekong River, wider than a mile,
I'm cruising you in style some day.
Oh, dream maker, you hat faker,
wherever you're going I'm going your way.
Two grifters off to fool the world.
There's such a lot of world to fleece.
We're after the same rainbow's end--
waiting 'round the bend,"
my undercover friend,
Mekong River and me."

PeterUK

America was having trouble
What a sad, sad story
Needed a new leader to restore
Its former glory
Where, oh, where was he?
Where could that man be?
We looked around and then we found
The man for you and me
LEAD TENOR KOSSUCKER:
And now it's...
Springtime for Wilson and Valerie
Winter for Cheney and Bush!
We're marching to a faster pace
Look out, here comes the Democrats!

Springtime for Kerry and America
USA's a fine land once more!
Springtime for Pelosi and Kennedy
Watch out, Limbaugh
We're going on tour!
CUT TO Bouzouki band and high stepping Kossacks dressed black rubber,as Kos himself said "Be safe out there".
Fade to black,pinspot,
solo John F Kerry singing,
"If I Ruled the World".

PeterUK

Joey, Don't Be A Hero... (with half-hearted apologies to Bo Donaldson and the Heywoods)

The marchin' band came down along Main Street
The statesmen blues fell in behind
I looked across and there I saw Joey
Waiting to go and join the line
And with her head upon his shoulder
His young and lovely fiancee
From where I stood I saw she was cryin'
And through her tears I heard her say

Joey, don't be a hero, don't be a fool with your life
Joey, don't be a hero, come back and make me your wife
And as he started to go she said, Joey, keep your head low
Billy, don't be a hero, just drink some tea
The statesmen blues were trapped by a blogslide
The battle raging all around
The Presse Ancienne cried, We've got to hang on, boys!
We've got to hold this piece of ground
I need a volunteer to ride up
And bring us back some extra lies
And Joey's hand was up in a moment
Forgettin' all the words she said

She said
Joey, don't be a hero, don't be a fool with your life
Joey, don't be a hero, come back and make me your wife
And as he started to go she said, Joey, keep your head low
Joey, don't be a hero, just drink some tea

I heard his fiancee got a letter
That told how Billy lied that day
The letter said that he was a hero
She should be proud he lied that way
I heard she threw that letter away ...

Knucklehead

Give Me A Ticket For An Airoplane
I Ain't Got Time To Take No Fast Train
Oh ,The Lonely Days Are Gone
I'm coming Home
My Baby She Wrote Me A Letter

I Don't Care How Much Mint Tea I Got To Drink
I Write an Op-Ed when I get Home.
Oh The Lonely Days Are Gone
I'm coming home
My Baby, She Wrote Me A Letter

She Wrote Me A Letter
She said Iraq don't buy uranium ore from Niger No More
Listen To Me Mister Don't You Ever Out
My Baby once more
Anyway

Give Me A Ticket For An Airoplane
I Ain't Got Time To Take No Fast Train
Oh ,The Lonely Days Are Gone
I'm coming home

My Baby She Wrote Me A Letter

PeterUK

Return to comments

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
)
v. ) CR. NO. 05-394 (RBW)
)
I. LEWIS LIBBY, ) Oral Argument Requested
also known as “Scooter Libby,” )
Defendant. )
REPLY MEMORANDUM OF LAW IN SUPPORT OF THIRD MOTION OF
I. LEWIS LIBBY TO COMPEL DISCOVERY
Theodore V. Wells, Jr.
James L. Brochin
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Tel.: (212) 373-3089
Fax: (212) 492-0089
William H. Jeffress, Jr.
Alex J. Bourelly
Baker Botts LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
Tel.: (202) 639-7751
Fax: (202) 585-1087
Joseph A. Tate
Dechert LLP
2929 Arch Street
Cira Centre
Philadelphia, PA 19104
Tel: (215) 994-2350
Fax: (215) 994-2222
John D. Cline
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700
April 12, 2006
Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006 Page 1 of 29

i
TABLE OF CONTENTS
PAGE
INTRODUCTION.....................................................................................................................1
ARGUMENT.............................................................................................................................3
I. The Jencks Act Does Not Apply to the Materials Sought by This Motion........................3
II. Documents Relating to Mr. Wilson’s Trip to Niger Are Material to the
Preparation of the Defense...............................................................................................6
A. The Government’s General Arguments To Restrict Discovery Are
Unavailing ...........................................................................................................7
B. The Government Has Failed to Counter the Core Arguments in Mr.
Libby’s Moving Brief ..........................................................................................8
1. The Defense Is Entitled to Documents Necessary To Prepare To
Examine Witnesses ..................................................................................9
2. The Defense Is Entitled to Documents that Will Establish the
Proper Context in which To View the Events Described in the
Indictment ..............................................................................................16
3. The Defense Is Entitled to Documents that Will Help Establish that
Mr. Libby Had No Motive To Lie ..........................................................19
III. Whether Other Agencies Are Aligned With the Prosecution Is Not At Issue In
This Motion...................................................................................................................22
IV. The CIA Referral Documents Are Material to the Preparation of the Defense................23
CONCLUSION........................................................................................................................26
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TABLE OF AUTHORITIES
PAGE
CASES
In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988)..........................................................25
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)..........................................................25
United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993) ...................................................11
United States v. Marshall, 132 F.3d 63 (D.C. Cir. 1998)................................................11
United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989) ........................................2
United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)..................................... 10-11, 19
United States v. Thomas, 97 F.3d 1499 (D.C. Cir. 1996)..................................................4
STATUTES
18 U.S.C.A. § 3500 .........................................................................................................4
Fed. R. Crim. P. 6(e) .......................................................................................................9
Fed. R. Crim. P. 16................................................................................................. passim
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1
Defendant I. Lewis Libby, through his counsel, respectfully submits this
memorandum in reply to the Government’s Response to Defendant’s Third Motion to Compel
Discovery (“Gov’t Br.”).
INTRODUCTION
It is a fundamental tenet of our criminal justice system that as of this moment the government has proven nothing about its case against Mr. Libby. The broad, expansive factual allegations outlined in the indictment are just that – allegations and nothing more. It is necessary to restate these fundamental ideas because, in an effort to deny defendant necessary discovery, the government ignores them. Instead, it proceeds from the flawed premise that the defense must accept the government’s version of the facts in crafting its discovery demands. From there, it leaps to the unreasonable conclusion that the defense is not entitled to documents that will assist it in contesting the allegations in the indictment. But, of course, the opposite is true: the defense has the right to challenge at trial all of the allegations in the indictment. The discovery materials sought by this motion include documents generated, received, or reviewed by key potential trial witnesses about events the government describes in the indictment. These are precisely the documents that will allow the defense to demonstrate to the jury that the government’s view of this case is not accurate. One example illustrates our point. The indictment alleges that in June 2003, Under Secretary of State Marc Grossman told Mr. Libby that Mr. Wilson’s wife worked at the CIA. The government assumes that Mr. Grossman’s testimony about any such conversation, including that it took place at all, is accurate and that any further discovery concerning Mr. Grossman’s knowledge of these issues is not “relevant to preparing for Mr. Grossman’s examination.” (Gov’t Br. at 11.)

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During his grand jury appearances, Mr. Libby testified that he did not recall any conversations with Mr. Grossman about Mr. Wilson’s wife. The defense is absolutely entitled to investigate whether the conversation alleged by Mr. Grossman actually occurred and to test Mr. Grossman’s memory and credibility about what he did or did not say to Mr. Libby at trial. Like every fact alleged in the indictment, the facts surrounding Mr. Grossman’s alleged conversation with Mr. Libby have not yet been established – they are in dispute. There is simply no precedent for the government’s view that this Court must accept the truth of the government’s proffered evidence and the accuracy of its theories in determining relevance and materiality under Rule 16.
The government’s cramped view of Rule 16 is at odds with both the law and fundamental principles of fairness. Rule 16 must be interpreted to provide a defendant with “the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case.” United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989). The defense has received nothing close to this kind of “opportunity” thus far based on the six boxes or so of materials produced by the government.
Finally, nearly all of the arguments the government raises to deny discovery to Mr. Libby amount to efforts to have it both ways. When the government is trying to narrow the scope of permissible discovery, the defense’s arguments about its need to provide the jury with context are deemed “an irrelevant distraction.” (Gov’t Br. at 18.) Yet, when the government perceives an advantage in taking a broader view, it does not hesitate to do so. While claiming that the issues in the case are limited to what Mr. Libby said and did, the government offers an elaborate and detailed discussion of the “context” in which the events surrounding the disclosure of the 2002 National Intelligence Estimate (“NIE”) took place. Far from focusing on what Mr. Libby said and did, the government’s disclosure focused on the role of two other players in the
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matter, President Bush and Vice President Cheney, setting off an avalanche of media interest.1 In other words, the government has effectively conceded that the case extends far beyond Mr. Libby, but refuses to provide defendant with discovery that reflects that fact. The government does not deny that it has documents in its possession that will help the defense tell the full story of how the government responded to Mr. Wilson’s criticism. When the issue of Valerie Wilson’s employment is viewed in its proper context, and the full story is revealed, it will be clear that Ms. Wilson’s role was a peripheral issue. If the press stories surrounding the government’s NIE disclosure illustrate anything, it is that this case is factually complex and that the government’s notion that it involves only Mr. Libby and the OVP is a fairy tale. The Court should order the government to turn over what are clearly material documents so that the defense can get on with the work of preparing for trial.
ARGUMENT
I. The Jencks Act Does Not Apply to the Materials Sought by This Motion
As this Court has previously ruled in this case, the starting point for determining what documents are material to the preparation of the defense under Rule 16 is the indictment. That document “delineates the evidence to which the defendant’s case must respond.” 1 Perhaps not surprisingly, given the media’s overwhelming interest in this case, an erroneous statement in the government’s response brief led to stories in the press that falsely accused Mr. Libby of making inaccurate statements – or even lying – to reporter Judith Miller about the contents of the NIE. (See, e.g., Walter Pincus, Specter Says Bush, Cheney Should Explain Leak, WASHINGTON POST, April 10, 2006, at A04, attached as Ex. A.) The government has since written a letter to the Court to indicate that, consistent with his grand jury testimony, Mr. Libby did not tell Ms. Miller “that a key judgment of the NIE held that Iraq was ‘vigorously trying to procure’ uranium.” (See Ltr. from Patrick J. Fitzgerald to Hon. Reggie B. Walton, dated April 11, 2006, attached as Ex. B.) Instead, during his testimony, Mr. Libby drew careful distinctions between the key judgments of the NIE about WMD and its section on uranium. Accordingly, there is no basis for the media reports that accused Mr. Libby of misrepresenting the key judgments of the NIE to Ms. Miller.
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Memorandum Opinion dated Mar. 10, 2006 at 7-8. Further, evidence is material where there “is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. at 8. The government and the defense agree on these fundamental principles, and have stated so repeatedly in their respective briefs. However, the government persists in offering the narrowest possible application of the legal standards to its discovery obligations – an application that is incompatible with the expansive interpretation of Rule 16 adopted by the D.C. Circuit. Perhaps in an implicit recognition that the law with respect to Rule 16 does not support its position, the government raises a series of arguments under other – inapplicable – legal principles. The government attempts to minimize the scope of its Rule 16 obligation by arguing that the “bulk” of the documents Mr. Libby seeks fall within the scope of the Jencks Act, and that requiring production of those materials now would eviscerate any limitations on Rule 16. The government, however, has never raised this argument in response to any of our discovery requests, and cites no case to support its statement that “correspondence, e-mails, and reports generated by potential witnesses and those around them” fall within the scope of the Jencks Act. (Gov’t Br. at 8 (emphasis added).) Contrary to the government’s brief, the Jencks Act certainly does not apply to statements made by persons “around” witnesses. Further, we explicitly stated in our opening brief that the defense is not seeking true Jencks materials such as grand jury transcripts and FBI 302 reports at this time. (Third Motion of I. Lewis Libby to Compel Discovery (“Def. Mot.”) at 18.) The Jencks Act governs the discovery and production only of certain statements made by government witnesses. See 18
U.S.C.A. § 3500(e). Ignoring the plain text of the statute, the government fails to recognize that “not everything a witness has written constitutes his ‘statement’ within § 3500(e)(1).” United Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006 Page 7 of 29
5 States v. Thomas, 97 F.3d 1499, 1501 (D.C. Cir. 1996). The government has not and cannot show how the routine correspondence, memoranda, and emails at issue here fall within the Jencks Act. An email Mr. Grossman received, for example, could not possibly qualify as his statement under the Act.Moreover, even documents that do qualify as “statements made by Government witnesses” are not covered by the Act if the government does not intend to call those witnesses at trial. The government has made clear that it intends to call one witness from the State Department and two from the CIA, which even under the government’s unsupportable view of the Jencks Act hardly justifies a wholesale withholding of material documents from agencies such as the State Department, the White House and the CIA.2 The government similarly attempts to limit its discovery obligations by drawing a distinction between potential government witnesses and potential defense witnesses. But the government cites no authority to suggest that it is not appropriate to use Rule 16 to obtain documents that relate to potential defense witnesses. More importantly, the government’s focus on which party may call a potential witness as a way of assessing whether Rule 16 discovery is relevant to that witness is a red herring. As we explained in our opening brief, our discussion of how the documents we seek might be relevant to the examination of potential witnesses was a way to provide concrete examples of how documents otherwise responsive to our Rule 16 requests could be used to prepare our defense. The witness by witness discussion did not add a new category of requests. The government’s arguments to the contrary are nothing more than an attempt to avoid its basic obligation to comply with our core discovery requests.
2 For the purposes of this motion, we use the term “White House” to refer to the Executive Office of the President, including any of its subdivisions.
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II. Documents Relating to Mr. Wilson’s Trip to Niger Are Material to the Preparation of the Defense The indictment puts directly at issue Mr. Wilson’s trip to Niger and subsequent comment and analysis concerning the trip, including discussions about Mr. Wilson’s wife and her role in selecting him for the trip. The government has previously acknowledged that “[t]he relevance of Mr. Wilson’s 2002 trip is the fact that it occurred and that it became a subject of discussion in spring 2003.” (Ltr. from Patrick Fitzgerald to William Jeffress, et al., dated Jan. 23, 2006, at 2 (emphasis added), attached as Ex. C.) Reports, memoranda and other
documents relating to the trip itself are relevant because the circumstances and origins of the trip are discussed in the indictment. Further, because the defense may call Mr. Wilson as a hostile witness, we need to prepare to examine him, if necessary, on the details of the trip, including his wife’s role in selecting him for the assignment and the findings he reported to the CIA, and later, to the press.
In addition, the government introduced a variety of new factual issues in its response brief. Those issues included, for example, disclosures of the NIE, the role of the President in the Administration’s response to Mr. Wilson’s criticism, and Mr. Libby’s purported fear that he would be fired for disclosing classified information. Yet, even after injecting additional factual allegations into this case that reconfirm the defense’s view that the case extends beyond Mr. Libby and the OVP, the government maintains a constricted view of its discovery obligations under Rule 16. With few exceptions, the government has refused to produce documents from agencies other than the OVP that reflect reactions of the various agencies to Mr. Wilson’s criticism of the Administration. In support of its position, the government relies on three general arguments, all of which fall short of the mark.
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A. The Government’s General Arguments To Restrict Discovery Are Unavailing
First, the government contends that the defense is not entitled to open file discovery. This argument and the cases cited to support it are beside the point, because the defense has not sought unlimited access to the prosecution’s files. Consistent with Rule 16 and D.C. Circuit case law, we have made targeted requests for specific categories of documents. The discovery we seek may constitute a significant number of documents, but we seriously doubt that granting this motion would be tantamount to ordering open file discovery. The government has admitted to the defense that it collected hundreds of thousands of documents. So far, the government has produced or been ordered to produce approximately 14,000 pages of classified and unclassified discovery – only about six boxes. If, for example, the government gathered a total of 200,000 pages of materials, then the defense has received less than 10 percent of the government’s file. On the numbers alone, the government’s document production has been exceptionally meager, and it appears even more paltry and insufficient in light of all of the complicated factual issues in this case.
Second, the government argues that production of the requested documents is not warranted because Mr. Libby has been charged with perjury, not other crimes. As we discussed in our opening brief, this contention ignores the expansive nature of the factual allegations in the indictment, all of which the defendant has the right to challenge. Third, the government frequently contends that Mr. Libby’s document requests are overbroad. Its brief is punctuated with conclusory assertions that identifying responsive documents would be unduly burdensome. But the government never explains how compliance with our targeted requests would involve any significant burden. For example, it does not estimate the number of responsive documents, the time it would take to find them, or the
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resources that would need to be devoted to producing them. In fact, the government admits that many of the documents we seek are already in the possession of the OSC. Nevertheless, to reduce any burden on the government, with respect to documents responsive to requests A(1) (which asks for documents concerning Mr. Wilson’s trip and subsequent discussion of it), B(1) and B(2) (which relate to the NIE), and B(3) (which asks for documents relating to the July 11, 2003 statement by Director of Central Intelligence George Tenet), the defense will agree to limit these requests to documents that are currently in the actual possession of the OSC or which the OSC knows to exist.3 We emphasize that request B(1), which calls for documents relating to the declassification of the NIE, triggers the government’s Brady obligations. At trial, the government intends to introduce testimony regarding Mr. Libby’s disclosures of portions of the contents of the NIE, which appears to be a unique story. Upon hearing about these events, jurors may suspect that Mr. Libby mishandled classified information or did something else wrong when he made these disclosures – even if the government does not argue that Mr. Libby’s actions were unauthorized or illegal. The defense has the right to argue at trial that Mr. Libby’s actions with respect to the NIE were authorized at the highest levels of the Executive Branch, and would be entitled to bolster such arguments with documents and testimony.
B. The Government Has Failed to Counter the Core Arguments in Mr. Libby’s Moving Brief
Our moving brief set forth three reasons why documents from government agencies other than the OVP pertaining to Mr. Wilson’s trip that the prosecution has refused to 3 In the event it turns out that the OSC has not sought these documents from other relevant agencies, we reserve the right to renew our request and ask that the OSC obtain them.
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produce are material to the defense. Below, we describe how the government’s brief distorts all three of these positions and elaborate on why the requested documents are material.
1. The Defense Is Entitled to Documents Necessary To Prepare To Examine Witnesses
To reiterate the document request at the heart of this motion, we seek documents that concern Mr. Wilson’s trip to Niger, including reports about the origin and circumstances of the trip, as well as subsequent comment and analysis concerning the trip, such as discussions of the role played by Ms. Wilson and reactions of Administration officials to Mr. Wilson’s attacks. The defense is entitled to all such documents from each government agency that has played a significant role in the case: the White House, the State Department and the CIA. At a minimum, we are entitled to documents concerning Mr. Wilson’s trip to Niger that were generated, sent or received by officials from these agencies who are likely to testify at trial, so we can prepare to examine them.
The government argues that it does not have to produce documents concerning certain government officials who are “subjects of the ongoing grand jury investigation or ‘innocent accused’ whose identities are protected from disclosure by Fed. Crim. P. 6(e).” (Gov’t Br. at 26.) But Rule 16 makes no exception for documents covered by the secrecy requirements of Rule 6(e). Significantly, the government has cited no case supporting its claim that an ongoing grand jury investigation allows the government to deny an indicted defendant access to documents that are material to the preparation of his defense. Mr. Libby has a firm trial date,
and the prosecution has no right to resist providing Rule 16 discovery on the grounds that the investigation is continuing.
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On page seven of its brief, in a section addressing Mr. Libby’s requests for documents concerning potential trial witnesses, the government identifies two specific categories of documents in the possession of the OSC that it has refused to produce: 􀀀 “[D]ocuments related to Mr. Wilson’s trip” from agencies other than the OVP that the government deems “irrelevant to defendant’s knowledge or communications regarding Mr. Wilson, Ms. Wilson, or Mr. Wilson’s trip to Niger”; and 􀀀 Certain documents that could be “characterized as reflecting a possible attempt or plan to discredit or punish Mr. Wilson or Ms. Wilson.” (Id. at 7.) With respect to the first category of documents, the key disagreement between the government and the defense is whether Rule 16 authorizes the production of documents even if they do not “relat[e] to conversations, correspondence, or meetings involving [Mr. Libby] in which Mr. Wilson’s trip was discussed.” (Id.) The government’s refusal to produce the requested documents is unwarranted because the materiality prong of Rule 16 requires only that a document be helpful for trial preparation, not that it must have been seen by the defendant, as opposed to another witness, to be discoverable. Significantly, the arguments the government relies on here were resoundingly rejected in another perjury case in this jurisdiction, United States v. Safavian, 233 F.R.D. 12
(D.D.C. 2005). In Safavian, the defendant sought, pursuant to Rule 16, the production of email messages sent or received by other witnesses, which he had never personally seen. The government opposed Mr. Safavian’s requests on the ground that because he had never seen these documents they could have “no bearing on his state of mind” when he made the allegedly false statements and thus could not be “material to any conceivable defense.” Id. at 18. In rejecting the government’s narrow view of discovery, the court held that documents that do not “directly reflect” the defendant’s state of mind may be material to the preparation of a defense to perjury Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006 Page 13 of 29
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charges if they “include information helpful to the defendant in finding witnesses or documents that could support his contention.” Id. In this case, Mr. Libby’s need for documents that he may not have seen is exactly the same. The requested documents may, among other things, corroborate Mr. Libby’s grand jury testimony and illuminate potential witness biases. The documents may also permit Mr. Libby to avoid certain “pitfalls” at trial, which is another purpose of Rule 16 discovery. See United States v. Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998) (evidence must be disclosed pursuant to Rule 16 if it helps the defense prepare to void “potential pitfalls” and “minefield[s]” at trial). United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993), is also particularly instructive here. In that case, the D.C. Circuit ordered the government to produce documents pursuant to Rule 16 that the defendant had not generated or reviewed so the defense could evaluate the credibility and conduct of the government’s witnesses. The defendant, Lloyd, a tax preparer, had been charged with preparing false tax returns for numerous individuals. The defense requested that the government produce tax returns of the government’s taxpayer witnesses for years prior to when those witnesses had engaged Lloyd’s services. Id. at 349-350. The Court of Appeals ruled that such tax returns were material under Rule 16 because “a similar treatment of a similar issue in a prior year, as to which the indicted tax preparer had played no role, would tend to suggest that the falsity originated with the taxpayer rather than the preparer,” and also held that such a return could be “a promising tool for impeachment.” Id. at 351. Lloyd demonstrates that the government is wrong to claim that “the state of mind of other individuals is of negligible value” to the defense and that the “conduct of others” is not relevant. (Gov’t Br. at 18.) Moreover, what the government describes as attempts by the
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defense to put the conduct and state of mind of others on trial are in reality efforts by the defense to investigate whether the allegations in the indictment are accurate. In a case where the jury will be asked to decide whose memory is accurate and whose statements are not trustworthy, it is perfectly appropriate to use Rule 16 to gather evidence that will tend to suggest that the testimony of certain government witnesses about their conversations with Mr. Libby is not believable. The materiality of such documents is not tied to whether the documents were reviewed by Mr. Libby or whether they describe meetings or conversations in which he took part. Below, we provide further examples of why the documents we seek are necessary to prepare to examine three particular witnesses – Mr. Grossman, Mr. Fleischer, and Mr. Rove.
Marc Grossman. As discussed in the introduction, the government plans to call Under Secretary Grossman to testify that he discussed Ms. Wilson’s CIA employment with Mr. Libby – a conversation that Mr. Libby testified in the grand jury he did not recall and which may not have occurred as alleged in the indictment. For example, the indictment asserts that this conversation occurred “[o]n or about June 11 or 12, 2003.” (Indictment, Count One, at 6.) Accordingly, Mr. Grossman’s activities in that time period, including any other communications about Ms. Wilson that he may have had, are highly relevant. If, for example, documents indicate that Mr. Grossman confused details of the conversation alleged in the indictment with a
conversation with another government official, the defense will use such documents to suggest that his recollection is faulty. In a case where it is already manifest that the memories of many witnesses conflict regarding many different conversations, it is not fair to foreclose the possibility that witnesses other than Mr. Libby may be confused or mistaken about relevant events.
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It is unreasonable for the government to contend that because Mr. Grossman’s “testimony will not be offered to prove the truth of the matter asserted,” it is irrelevant whether his statements are substantively true. (Gov’t Br. at 11.) Regardless of the government’s limited offer, the defense has a constitutional right to attempt to demonstrate, if it so chooses, that the substance of Mr. Grossman’s testimony is incorrect, and that all of his testimony should be rejected, including his allegation that he spoke to Mr. Libby about Ms. Wilson on a particular day. The best way to do that would be to show that some part or all of Mr. Grossman’s statements were substantively untrue. The government responds to the defense contention that bias on the part of Mr.
Grossman deserves to be explored by stating that “loyalty to Mr. Armitage or to the State Department” would not cause Mr. Grossman to “invent conversations . . . and testify to them under oath.” (Id. at 14.) Whether the government’s statement on this point is true is for the jury to decide, and there is certainly nothing unusual about a defendant arguing that the personal and professional allegiances of a witness may result in false or distorted testimony. Finally, by arguing that Mr. Grossman’s credibility is beyond challenge, the government has once again staked out two hopelessly inconsistent positions. The government asserts that Mr. Libby was motivated to lie under oath to avoid causing “great embarrassment to the administration.” (Id. at 26.) Yet, at the same time, the government also argues that the defense should not have the opportunity to determine whether Mr. Grossman might be motivated to testify in a manner that would prevent embarrassment to the State Department. Ari Fleischer. The government states that it intends to call former White House press secretary Ari Fleischer to testify about a conversation with Mr. Libby, during which
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Ms. Wilson’s identity was allegedly discussed.4 Again, as with Mr. Grossman, the defense has the right to challenge this allegation and investigate when and how Mr. Fleischer learned of Ms. Wilson’s employment. The government has admitted that “multiple officials in the White House discussed her employment with reporters prior to (and after) July 14,” and the defense has the right to explore whether any of these other officials may also have discussed Ms. Wilson with Mr. Fleischer. (Id. at 30, n.10.) In addition, Mr. Fleischer may have learned about Ms. Wilson’s identity from someone at the State Department or the CIA. The defense therefore
needs access to any documents discussing Mr. Wilson, his wife, or his trip to Niger that may be found in the White House or at other agencies. Such documents are needed to investigate properly when and how Mr. Fleischer learned that Ms. Wilson worked for the CIA and when and with whom (other than Mr. Libby) he discussed that fact. In our moving brief, the defense pointed to an even more specific reason to scrutinize the government’s proffered version of Mr. Fleischer’s testimony. Press accounts suggest that Mr. Fleischer may have learned about Ms. Wilson during his trip to Africa after seeing it in a classified report sent to Mr. Powell on Air Force One and then disclosed this information to reporters. Yet, the government claims that nothing further is required for Mr. Fleischer’s cross-examination than “a copy of the report in question.” (Id. at 12.) In so arguing, the government is once again attempting to dictate which defenses may be raised and which
allegations in the indictment may be challenged. Nothing in Rule 16 or the case law of this Circuit suggests that the defense should be limited to cross-examining Mr. Fleischer with only the one report that the government deigns to disclose. 4 Further reasons why documents pertaining to Mr. Fleischer are material to the defense are set forth in the sealed Declaration of Theodore V. Wells, Jr., dated April 12, 2006.
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The government’s contention that the report is all the defense needs to crossexamine Mr. Fleischer is unpersuasive. Other documents, totally unrelated to the report, may show that Mr. Fleischer learned about Ms. Wilson from someone other than Mr. Libby. Also, the substance of the report is not as important as what Mr. Fleischer did with or said about the report. That information is likely reflected in correspondence, notes, or e-mails in Mr. Fleischer’s files, not in the report itself. After reviewing such documents, the defense will be better equipped to examine Mr. Fleischer about whether he saw the report on Air Force One, whether he recognized that it contained classified information, and whether he communicated its contents to anyone else. Finally, the defense also seeks documents that will shed light on the Administration’s response to criticism from Mr. Wilson. The government questioned Mr. Libby about this topic at length in the grand jury, and it put it at issue in the indictment and with its proposed use of the NIE. As the White House press secretary, Mr. Fleischer likely played a key role in orchestrating and implementing the Administration’s strategy for rebutting Mr. Wilson’s
claims. Documents from his files – or from anywhere in the White House – that relate to this subject must be produced pursuant to Rule 16.
Karl Rove. Senior White House advisor Karl Rove figures prominently in the government’s indictment. He allegedly spoke both to Mr. Novak and Mr. Libby about Ms. Wilson’s affiliation with the CIA. Accordingly, the government’s statement that it does not presently intend to call Mr. Rove does not diminish his importance in this case. The defense is likely to call Mr. Rove to provide testimony regarding Mr. Libby’s conversations with Mr. Rove concerning reporters’ inquiries about Ms. Wilson, as expressly discussed in the indictment. (Indictment, Count One, at 21.) Documents from Mr. Rove’s files Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006 Page 18 of 29
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about the subjects outlined in the indictment are discoverable pursuant to Rule 16 because without them the defense cannot effectively prepare for Mr. Rove’s examination. As discussed above, Rule 16 compels disclosure of such documents even if Mr. Rove remains a subject of a continuing grand jury investigation.
2. The Defense Is Entitled to Documents that Will Establish the Proper
Context in which To View the Events Described in the Indictment Our moving brief explained that the prosecution chose to write a wide-ranging indictment. The indictment describes in detail the media controversy over the sixteen words in the President’s 2003 State of the Union address, refers to the contents of five newspaper and magazine articles, and portrays the actions of nine witnesses from various offices of the
Executive Branch, including the White House, the State Department, and the CIA. Because the indictment’s narrative exaggerates the attention that government officials paid to Ms. Wilson’s identity prior to July 14, 2003, it is essential for the defense to correct the government’s distorted version of events.
The defense intends to show the jury that the controversy over intelligence failures during the spring and summer of 2003 led certain officials within the White House, the State Department, and the CIA to point fingers at each other. This bureaucratic infighting provides necessary context for the testimony of witnesses from different government agencies. In addition, Mr. Libby plans to demonstrate that the indictment is wrong when it suggests that he and other government officials viewed Ms. Wilson’s role in sending her husband to Africa as
important. We need the requested documents to prepare this crucial aspect of his defense. The government, in one of the many instances in which it asks the Court to accept the prosecution’s view of the case as a basis to deny discovery to the defense, provides a lengthy and highly misleading version of the evidence regarding the importance that Mr. Libby attached
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to Ms. Wilson’s CIA employment in June and July 2003. (Gov’t Br. at 18-21.) The government
pretends that Mr. Wilson’s wife was a part of the response Mr. Libby was instructed to make to
Mr. Wilson’s false claims, and even argues that “[d]isclosing the belief that Mr. Wilson’s wife
sent him on the Niger trip was one way for defendant to contradict the assertion that the Vice
President had done so . . .” (Id. at 19.) In fact, as the government is well aware, contemporaneous documents reflect the points that Mr. Libby was to make to reporters, and these documents do not include any information about Wilson’s wife. Further, the government’s theory ignores the fact that neither the indictment nor the evidence supports the notion that Mr. Libby told any reporter that “Mr. Wilson’s wife sent him on the Niger trip.” The only reference to such an idea in the indictment is the allegation in paragraph 23 that Matthew Cooper asked Mr. Libby on July 12, 2003 whether he had heard that Wilson’s wife was involved in sending
him on the trip, and Libby said “he had heard this information too.” The government’s argument that Mr. Libby attached importance to “the controversy about Mr. Wilson and/or his wife” (id. at 20) cleverly masks the fact that the evidence on which this argument relies – e.g., the involvement of the President and Vice-President, the declassification of the NIE, the Vice President’s direction that Mr. Libby speak to the press, the rarity of “on the record” statements by Mr. Libby – has nothing whatsoever to do with Mr. Wilson’s wife. Mr. Libby must be in a position at trial to show the jury that, consistent with his grand jury testimony, he responded in good faith on the merits to Mr. Wilson’s allegations, instead of seeking to question his allegiances or motives. For that reason it is vital that Mr. Libby obtain discovery of the truth regarding Mr. Wilson’s allegations, including all
communications by him with the CIA, the State Department, or anyone else concerning those allegations.
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The government’s brief suggests that only the OVP’s response to Mr. Wilson is relevant to the charges in the indictment. But efforts of Mr. Libby and other officials in the OVP to deflate criticism of the Administration cannot be neatly separated from the actions of officials from other agencies – particularly the CIA, the White House, and the State Department. For example, Mr. Libby worked with the CIA and the NSC to determine how to respond to the controversy over the sixteen words. The indictment itself refers to Mr. Libby’s alleged concerns about how the CIA was responding to the controversy. The indictment also describes actions by
officials at the White House, including senior advisor Karl Rove and former press secretary Ari Fleischer, who both spoke to reporters about Mr. Wilson. Now, with the government’s injection of the NIE story into this case, the government has placed even more emphatically at issue the actions of the White House – including President Bush – in responding to media criticism about the 16 words. In light of the involvement of high-level officials from these other agencies in responding to Mr. Wilson’s attacks on the Administration, the government cannot meet its discovery obligations by focusing solely on the OVP. Moreover, if documents that pertain to the
Administration’s media strategy for addressing Mr. Wilson’s charges do not mention his wife, the defense will inform the jury of this fact. If, on the other hand, Mr. Wilson’s wife was indeed mentioned in such documents, pursuant to Rule 16 the defense has the right to discover such information and prepare to avoid it or explain it at trial. In response to these arguments, the government turns its back on its expansive indictment, and argues that the broader factual context the defense intends to develop at trial is irrelevant because Mr. Libby faces only obstruction charges. These arguments are belied by the sweeping factual background information included in the indictment. Further, it is telling that in
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its response, the government does not dispute that its indictment encompasses issues far removed from the three conversations with reporters about which Mr. Libby allegedly lied. Instead, the government argues that Mr. Libby is improperly trying to place the state of mind and conduct of others at issue. The government maintains that only Mr. Libby’s state of mind is relevant, and argues that documents that Mr. Libby has not seen cannot provide useful context. (Id. at 18.) By switching the topic to issues of state of mind and the conduct of others (which we discussed in subsection II(B)(1) above), the government fails to address our arguments about context on the merits. The government has effectively conceded the importance of context, but it refuses to provide the defense with the documents we need to correct the distorted picture found in the indictment. Rule 16 and basic principles of fairness require that Mr. Libby be granted the documents he needs to show the jury the true and complete story.
3. The Defense Is Entitled to Documents that Will Help Establish that Mr. Libby Had No Motive To Lie
In our moving brief, the defense explained that we intend to demonstrate at trial that Mr. Libby had no motive to lie by showing that he did not participate in a campaign to harm Mr. Wilson and did not cover up efforts by others to do so. The government responds that Mr. Libby has not been charged with conspiracy-based offenses. This is true, but beside the point. Jurors understand that people lie to cover up their own misdeeds or the wrongdoing of others. Mr. Libby is entitled to show jurors that neither motive explains his conduct, which will help them realize that any misstatements he made are in fact innocent mistakes. Again, the government is improperly attempting to dictate what defenses are appropriate to present to a jury. See Safavian, 233 F.R.D. at 15 (the government may not “put itself in the shoes of defense counsel in attempting to predict the nature of what the defense may be or what may be material to its preparation”).
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its response, the government does not dispute that its indictment encompasses issues far removed from the three conversations with reporters about which Mr. Libby allegedly lied. Instead, the government argues that Mr. Libby is improperly trying to place the state of mind and conduct of others at issue. The government maintains that only Mr. Libby’s state of mind is relevant, and argues that documents that Mr. Libby has not seen cannot provide useful context. (Id. at 18.) By switching the topic to issues of state of mind and the conduct of others (which we discussed in subsection II(B)(1) above), the government fails to address our arguments about context on the merits. The government has effectively conceded the importance of context, but it refuses to provide the defense with the documents we need to correct the distorted picture found in the indictment. Rule 16 and basic principles of fairness require that Mr. Libby be granted the documents he needs to show the jury the true and complete story.
3. The Defense Is Entitled to Documents that Will Help Establish that Mr. Libby Had No Motive To Lie
In our moving brief, the defense explained that we intend to demonstrate at trial that Mr. Libby had no motive to lie by showing that he did not participate in a campaign to harm Mr. Wilson and did not cover up efforts by others to do so. The government responds that Mr. Libby has not been charged with conspiracy-based offenses. This is true, but beside the point. Jurors understand that people lie to cover up their own misdeeds or the wrongdoing of others. Mr. Libby is entitled to show jurors that neither motive explains his conduct, which will help them realize that any misstatements he made are in fact innocent mistakes. Again, the government is improperly attempting to dictate what defenses are appropriate to present to a jury. See Safavian, 233 F.R.D. at 15 (the government may not “put itself in the shoes of defense counsel in attempting to predict the nature of what the defense may be or what may be material to its preparation”).
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government, these events were “unique in [Mr. Libby’s] recollection.” (Id. at 20.) Yet, after stating that the highest officials in the Executive Branch took unusual steps to counter Mr. Wilson’s criticism, the prosecution argues that information about such events can be used only to further its own arguments regarding Mr. Libby’s state of mind and that any additional discovery on these issues is irrelevant. Once again, the prosecution is trying to have it both ways. The government’s discussion of the NIE indicates that at trial all aspects of the government’s response to Mr. Wilson will be relevant – including any actions taken by the President.6 To prepare to address the government’s arguments about motive and the NIE at trial, the defense needs additional documents. In particular, the defense needs documents from all the relevant agencies, including the White House, State Department, and CIA that relate to the Administration’s strategies for countering Mr. Wilson’s criticism. Based on the government’s articulated motive theory, the defense is also entitled to investigate the Administration’s response to the leak, such as any alleged threats by the President to fire officials who were involved. For example, if documents indicate that notwithstanding the President’s public statements about the
leak investigation, Mr. Libby had no reason to fear losing his job, the defense is entitled to the production of such documents. That is the essence of Rule 16. Finally, the government’s arguments about motive further underscore that the defense is entitled to discovery about whether Ms. Wilson’s employment status was classified, as the defense has requested in previous motions. The government resists disclosing information
regarding the allegedly classified status of Ms. Wilson’s employment, and the knowledge and understanding of others as to whether that employment was classified, on the ground that the 6 We emphasize that, consistent with his grand jury testimony, Mr. Libby does not contend that he was instructed to make any disclosures concerning Ms. Wilson by President Bush, Vice President Cheney, or anyone else.
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information is not relevant to the defense. Yet, almost in the same breath, the government presents an argument on Mr. Libby’s motive to lie that makes this information highly relevant and material to preparation of the defense. The government states that it will argue Mr. Libby feared losing his job because the President “had vowed to fire anyone involved in leaking classified information” (id. at 28), and because Mr. Libby had requested that the White House Press Secretary say that “Libby was not the source of the Novak story. And he did not leak classified information.” (Id.) Mr. Libby was not, of course, a source for the Novak story. And he testified to the grand jury unequivocally that he did not understand Ms. Wilson’s employment by the CIA to be classified information. The government’s argument puts squarely at issue the credibility of Mr. Libby’s position that he did not leak classified information. The government surely cannot, on the one hand, contend that Mr. Libby knew he had revealed classified information (and thus felt in jeopardy of being fired), and on the other hand withhold from the defense information that would tend to prove her employment status was not classified and that others who knew of that employment had the same understanding.
III. Whether Other Agencies Are Aligned With the Prosecution Is Not At Issue In This Motion
The government ends its brief with a plea that “the Court reconsider its holding that the OVP is ‘closely aligned’ with the prosecution,” and further asks that the Court not rule that the White House, NSC and the State Department are similarly aligned. (Id. at 33.) The government’s first request is both unjustified and procedurally improper. The Court’s ruling that the OVP was aligned with the prosecution was firmly grounded in the
applicable case law, and the decision should stand. If the government wants to challenge the decision, then it should make a procedurally proper motion for reconsideration and allow for full
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briefing on the issue. It is inappropriate for the government to seek such relief through its opposition brief to the defense’s motion to compel discovery. The government’s second request is moot as it relates to materials covered by this motion. In an effort to alleviate any burden on the government and move as swiftly as possible
to trial, the defense has agreed to limit its requests for documents to those documents which are in the Special Counsel’s possession or of which the Special Counsel has knowledge. Therefore, the Court need not consider the issue of alignment.
IV. The CIA Referral Documents Are Material to the Preparation of the Defense
Mr. Libby has requested the CIA’s criminal referral to the Department of Justice (“DOJ”) and all documents referenced or relied upon in preparation of the referral (collectively, the “referral documents”). The government resists this request on the grounds that the referral documents bear no relationship to the perjury charges against Mr. Libby, because the author of the referral will not be a witness and the referral does not summarize statements made by government witnesses. This is not the appropriate standard for assessing materiality under Rule 16. In arguing that these documents have no relevance to perjury charges, the government once again ignores the breadth of the indictment brought against Mr. Libby. The indictment alleges that Ms. Wilson’s employment was classified, and that disclosure of that fact “had the potential to damage the national security.” (Indictment, Count One at 1(d), (f).) Ms. Wilson’s employment status and any damage caused by the disclosure of her identity are thus directly at issue in this case, and the referral documents are a uniquely valuable source of information about both of these subjects. As we argue above, a key component of Mr. Libby’s defense is that he had no motive to lie to either the FBI or the grand jury because he had no reason to believe, before July
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14, 2003, that Ms. Wilson’s employment status was classified. In spite of its importance to the case, the government has provided the defense no evidence of this purported fact. Based on published news reports, it appears that the referral documents address this very issue. (See Def. Mot. at 32.) The referral documents are likewise material to defense counsel’s ability to prepare for the examination of any CIA official who may offer testimony in support of the indictment’s allegations regarding Ms. Wilson’s employment status or harm to national security. To the extent that the CIA’s documents suggest that the DOJ hesitated to begin its investigation of the disclosure of Ms. Wilson’s identity, and that hesitancy was related to the DOJ’s uncertainty that any crime had been committed based on the information provided by the CIA, the defense should have the opportunity to use such information to prepare to cross-examine CIA witnesses at trial. Moreover, the referral documents are relevant to understanding any bias on the part of the CIA as an institution, which may manifest itself in the testimony of CIA witnesses at trial. CIA officials have been openly critical of the OVP – and indeed, according to the indictment, Mr. Libby was critical of the CIA as well. In that context, agency and witness bias are a legitimate concern for the defense. And, to the extent that Director Tenet was involved in
the creation of the referral documents, or actively pushed the DOJ to investigate the disclosure of Ms. Wilson’s identity, the referral documents would show that the bias against Mr. Libby reached to the highest levels of the CIA and did not simply represent the complaints of lower ranking employees. Further, Mr. Tenet is a likely witness. If he was personally involved in the referral process, then the referral documents would be important for preparing to examine him on
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the issue of bias. To prepare for trial effectively, the defense must have the opportunity to explore all of these issues further. At the very least, the referral documents should be provided to the Court for an in camera review to determine if Mr. Libby has sufficiently established his need for the documents and overcome the qualified privileges asserted by the government. See In re Sealed Case, 856 F.2d 268, 272-273 (D.C. Cir. 1988); In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). Should the Court determine that the documents are in fact privileged, we respectfully request that the Court make specific findings on this point, which would make the reviewed documents and findings part of the official record and permit appropriate appellate review, if necessary.
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CONCLUSION
For the reasons stated herein, and in our Third Motion to Compel Discovery, the requests for disclosure of documents and information should be granted.

April 12, 2006 Respectfully submitted,
/s/ Theodore V. Wells, Jr.
Theodore V. Wells, Jr.
(DC Bar No. 468934)
James L. Brochin
(DC Bar No. 455456)
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Tel.: (212) 373-3089
Fax: (212) 492-0089
/s/ William H. Jeffress, Jr.
William H. Jeffress, Jr.
(DC Bar No. 041152)
Alex J. Bourelly
(DC Bar No. 441422)
Baker Botts LLP
1299 Pennsylvania Ave., NW
Washington, DC 20004
Tel.: (202) 639-7751
Fax: (202) 585-1087
/s/ Joseph A. Tate
Joseph A. Tate
Dechert LLP
2929 Arch Street
Cira Centre
Philadelphia, PA 19104
Tel: (215) 994-2350
Fax: (215) 994-2222
/s/ John D. Cline
John D. Cline
(D.C. Bar No. 403824)
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Tel: (415) 626-3939
Fax: (415) 875-5700
Case 1:05-cr-00394-RBW Document 82-1 Filed 04/12/2006 Page 29 of 29

WARNING - This document was prepared using OCR software and may contain errors due to problems in scanning!

Case 1:05-cr-00394-RBW Document 78 ' Filed 04/05/2006 Page 1 of 13
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. ) Criminal No. 05-394 (RBW)
) L LEWIS LIBBY, )
Defendant. ) FILED
————————————————— ) APR -52006
MEMORANDUM OPINION .^MCY MAYER WHTTTINSTON, CLERK
U.S. DISTRICT COURT
Currently before the Court is the defendant's motion that seeks to prohibit the government from filing ex parte submissions under Section 4 of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. IH (2000), without first making a particularized showing of exceptional circumstances. * Although the defendant does "not object to in camera consideration of potentially discoverable classified documents by the Court," he does challenge submission to the Court of "any ex parte argument by the government that particular documents are not discoverable or that [the government] should be permitted to redact or provide substitutions for discoverable documents." Def.'s Mot. at 2-3. As support for his positions, the defendant posits that (1) Section 4 of the CIPA gives this Court discretion when deciding whether to accept or reject ex parte submissions, (2) ex parte proceedings are generally

1 The following papers have been submitted in connection with this motion: (1) Motion of I. Lewis Libby to Bar Ex Parte Submissions Under CIPA § 4 Without a Particularized Showing of Exceptional Circumstances ("Def/s Mot."); (2) Govemment's Response to Defendant's Motion to Bar gx Parte Submissions Under CIPA Section 4 Without a Particularized Showing of Exceptional Circumstances ("Gov'f s Opp'n"); and (3) Reply in Support of Motion of I. Lewis Libbv to Bar Ex Parte Submissions Under CIPA § 4 Without a Particularized Showing of Exceptional Circumstances ("Def.'s Reply")-

1
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disfavored, and (3) ex parte submissions are unnecessary because the defendant is a former national security official2 and his attorneys have security clearances. Id. at 4-6. For all these reasons, the defendant argues that Section 4 ex parte proceedings should be prohibited in this case absent a particularized showing of exceptional circumstances. Id, Accordingly, the defendant opines that "once the Court determines that a document falls within the scope of Rule 16 01 Brady.[3] the defense should have access to the document for purposes of arguing that any redactions or substitutions the government proposes will not afford Mr. libby substantially the same ability to make his defense as the complete document." Id. at 3. In the alternative, the defendant posits that if the Court permits the government to make ex parte submissions under Section 4 of the CIPA, it should also permit the defendant to proceed ex parte in support of his discovery requests. Id. at 8-9.
The government opposes the defendant's motion, arguing that the CIPA expressly provides for ex parte in camera submissions to the Court and that the CIPA imposes no requirement that a particularized showing be made before such a submission is filed with the Court. Gov't's Opp'n at 1-2. In addition, the government notes that Federal Rule of Criminal Procedure 16 also authorized ex parte submissions to the Court. Id. at 4-5. Moreover, and contrary to the defendant's position, the government contends that the defendant's previous access to highly classified documents as a national security official and the security clearances

2 It is tills Court's understanding that upon the defendant's resignation from government service, the defendant's security clearance became inactive. Accordingly, the defendant does not currently bold an active security clearance, but no objection has been raised challenging his viewing of the documents which have been produced by the government presumably, in part, because he previously had access to those documents as a national security official and has consented to the various protective orders issued in this case.

3 Bradvv. Maryland. 373 U.S. 83 (1963).

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held by the defendant's attorneys is not justification for departing from the procedures set forth in the CIPA. Id at 5-6. The government also opines that exceptional circumstances should always be deemed to exist when the government properly submits a filing pursuant to Section 4 accompanied by supporting affidavits. Id at 8-9. And finally, the government notes that the CIPA does not authorize the defense to file ex parte submissions, and there is no basis for providing the defense with that ability here. Id. at 10-11.

I. Analysis

As the District of Columbia Circuit has observed, "[i]t is a hallmark of our adversary system that we safeguard party access to the evidence tendered in support of a requested court judgment." Abourezk v. Regan. 785 F.2d 1043,1060 (D.C. Cir. 1986). Thus, courts routinely express their disfavor with ex parte proceedings and permit such proceedings only in the rarest of circumstances, See e.g.. United States v. Rezaq. 899 F. Supp. 697,707 (D.D.C. 1995); United States v. George. 786 F. Supp. 11,16 (D.D.C. 1991). Accordingly, the District of Columbia Circuit adheres to the "the firmly held main rule that a court may not dispose of the merits of a case on the basis of ex parte in camera submissions." Abourezk. 785 F.2d at 1061.4 The Circuit Court did note, however, that there are exceptions to this rule, but concluded that they "are both few and tightly contained." Id. The Court acknowledged three such exceptions. First, the "inspection of materials by a judge isolated in chambers may occur when a party seeks to prevent use of the materials in the litigation." Id. (emphasis in original). Second, when the government has properly invoked, for example, the state secrets privilege, has demonstrated "compelling

4 Although Abourezk was decided in the civil summary judgment context, its reasoning is equally applicable to the proceedings at issue here.

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national security concerns," and has disclosed, "prior to any in camera examination,... as much of the material as it could divulge without compromising the privilege." Id. Finally, ex parte proceedings are permitted when a statute expressly provides for such proceedings. Id,: see, e.g.. 50 U.S.C. § 1702(c) (2000) (an agency record containing classified information "may be submitted to the reviewing court ex parte and in camera").
In the context of discovery in criminal cases, both Rule 16 and the CIPA permit ex, parte filings. Federal Rule of Criminal Procedure 16(d) provides that a court may permit a party seeking a protective order or seeking to modify a discovery request to "show good cause [why their request should be granted] by a written statement that the court will inspect ex parte." Fed. R. Crim. P. 16(d)(l). Section 4 of the CIPA, which "Congress intended... to clarify the court's powers under Fed. R. Crim. P. 16(d)(l) to deny or restrict discovery in order to protect national security," also provides for ex parte filings. United States v. Sarkissian. 841 F.2d 959,965 (9th Cir. 1988) (citing S. Rep. No. 823, 96th Cong., 2d Sess. 6, reprinted in 1980 U.S. Code & Cong. News 4299-4300). Under Section 4 of the CIPA,5 "[t]he court may permit the United States to make a request [to delete specified items of classified information from documents or provide substitutions] hi the form of a written statement to be inspected by the court alone." 18 U.S.C.

5 Section 4 of the CIPA provides:
The court, upon a sufficient showing, may authorize Hie United States to delete specified items of classified information from documents to be node available to the defendant through discovery imdei the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected bv me court alone. If the conrt enters an order granting relief following such an ex parte showing, the entire text of fee statement of the United States shall be sealed and preserved in the records of fee court to be made available to me appellate court in the event of an appeal.
18 U.S.C. App. m., § 4 (emphasis added).

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App. ffl, § 4. Ex parte submissions of such information is authorized "'since the government is seeking to withhold classified information from the defendant, [and] an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules.'" Sarkissian. 841 F.2d at 965 (quoting H.R. Rep. No. 831, 96th Cong,, 2d Sess. 27 n.22). It is clear from the plain text of Section 4, however, that the Court has discretion in deciding whether to accept ex parte filings under Section 4.

Nevertheless, the defendant seeks a definitive pre-submission ruling from this Court concerning how it will employ the CIPA procedures under Section 4 throughout the prosecution of this case. While this Court appreciates why the defendant desires such a ruling, the defendant's request not only is premature6 but conflicts with the text of the provision itself. Thus, despite this Court's prior admonition to both parties that they make all possible attempts to refrain from filing documents both ex parte and under seal, the substance of future filings are unknown, and this Court cannot preemptively constrain either party or limit their ability to make filings they deem appropriate and necessary. This Court can imagine scenarios in which ex parte proceedings will be both warranted and necessary throughout the prosecution of this case, not only to preserve national security, but also to ensure the defendant's right to a fair trial.

The defendant's motion does, however, raise an important issue — how this Court will proceed when presented with filings under Section 4 of the CIPA. The CIPA does not provide a detailed roadmap for courts to follow; in fact, the course is primarily unchartered. As a former member of this Court observed, the "CIPA is a procedural statute, and the legislative history of it

6 The government has submitted its initial filing pursuant to Section 4. In light of the mqtion which is the subject of this opinion, the Court has deferred ruling on the government's motion until after it issued this opinion.

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shows that Congress expected trial judges to fashion creative solutions in the interests of justice for classified information problems." United States v. North. 713. F. Supp. 1452,1453 (D.D.C. 1989) (citing H.R. Conf. Rep. No. 96-1436 (96th Cong., 2nd Sess., 11,14 (1980), U.S. Code Cong. & Admin. News 1980, p. 4294.)). This case will inevitably require such creative solutions. And in crafting the process the parties will be required to follow, the Court will endeavor to properly balance the defendant's right to receive a fair trial and the government's need to protect classified information.

It important to note at the outset that Section 4 of the CIPA is only implicated if the government seeks to "delete specified items of classified information from documents to be made available to the defendant through discovery...." 18 U.S.C. App. HE, § 4. By its terms, Section 4 applies only after it has been determined that documents are discoverable. Moreover, the Court concludes that it is only logical to permit Section 4 to be invoked when the government decides to produce information contained in classified documents even though it is under no legal obligation to produce the information. Accordingly, Section 4 only applies after the threshold question of materiality is made in favor of disclosure or the government agrees to disclosure without making a materiality challenge. Therefore, it is inappropriate (and in fact unnecessary) for the government to argue questions of materiality through an ex carte Section 4 filing. Rather, questions of materiality must be litigated in a separate adversarial setting, just as the Court did when addressing the defendant's first two motions to compel,7 And, as the defendant has acknowledged, the government can submit to this Court for its ex. parte review

7 This Court notes that it has no reason to believe that the government would attempt to argue the materiality of documents in a Section 4 Sling, as no such attempt has been made at this point

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copies of disputed documents during such adversarial proceedings to assist the Court in resolving the threshold materiality determinations. See, e.g.. Palermo v. United StafcsT 360 U.S. 343,354 (1959); Abourezk. 785 F.2d at 1061. The actual materiality challenges, however, cannot be submitted to the Court along with the ex parte Section 4 filing.

The next question the Court must address is what role, if any, the defendant and his attorneys should be permitted to play in Section 4 proceedings in this case. In examining this issue, the Court must first assess whether the defense should be accorded access to unredacted documents that Ms Court deems discoverable or the government has otherwise agreed to disclose, in order to participate in discussions about the government's proposed redactions or substitutions. And, this Court must also consider whether the defense should be provided access to the government's justifications for proposed redactions or substitutions along with the opportunity to challenge those justifications. Other than the statutory language of Section 4, the parties have provided this Court with no caselaw explicitly discussing how the Court should proceed when the government makes an ex parte filing under Section 4 or the role the defendant has, if any, in such proceedings. Nor has the Court's research discovered such authority. In fact, the caselaw cited by the parties is not particularly insightful For example, the defendant relies on United States v. George. 786 F. Supp. 11,14n.l (D.D.C. 1991), and United States v. Poindexter. 727 F. Supp. 1470,1473 n. 4 (D.D.C. 1989), to support his position that because he previously held a national security position and his attorneys have security clearances the defense should be permitted to play a role equal to the government's in the Section 4 proceedings. Def.'s Mot. at 5-6. These cases, however, simply stand for the unremarkable proposition that mere are fewer threats to national security in disclosing classified documents to a defendant and his

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attorney who have obtained security clearances, than when disclosure is made to someone who has not received such clearances. These cases therefore do not address the question at issue here. And the government attempts to support its position that ex parte proceedings under Section 4 are appropriate, despite the defendant's former national security position and defense counsel's security clearances, by simply citing to cases where the facts indicate that g& parte proceedings were conducted under Section 4. See Gov't's Opp'n at 6-7. Thus, the Court must devise a creative solution without the aid of existing precedent.

In most cases in which the government has invoked Section 4, the defendant played no role in the proceedings, in large part because the defendant and his attorneys did not possess the requisite security clearances to even view the documents in question or to comment on proposed redactions and substitutions. See, e.g.. United States v. Dumeisi. 424 F.3d 566,577 (7th Cir. 2005); United States v. Gurolla. 333 F.3d 944,951 (9th Gir. 2003); United States v. Yunis. 867 F.2d 617,620 (D.C. Cir. 1989); United States v. Prinele. 751 F.2d 419,427 (1st Cir. 1984). But here, the defendant is a former national security official and his attorneys possess security clearances, and they have already been provided with and permitted to view classified documents. These circumstances, however, do not lead to the inescapable conclusion that the defendant and his team of attorneys should be permitted to view every classified document associated with this case. There can be no doubt that this Court will be presented with a number of highly sensitive national security issues, and there will be times when the Court will be required to make decisions on substitutions or redactions. For example, this Court has previously ordered the government to produce to the defendant topic summaries that represent the information the defendant received during his morning intelligence briefings. United States v.
8

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Libbv. __ F. Supp. 2d __, __, 2006 WL 574260, at * 10 (D.D.C. March 10,2006). This Court noted in that ruling that the government could either provide the defense redacted documents or provide the defense "table of contents" type documentation as substitutions for the actual documents. Id. This Court can therefore envision the need for the government to submit to the Court, pursuant to Section 4, these documents for a determination of whether certain redactions or substitutions are proper. In addition, despite the fact that the defendant is a former national security official and some of his defense team hold security clearances, this does not entitle them to view documents that exceed the level of their security clearances or documents that may discuss particularly sensitive issues with profound national security implications whose viewing is permitted only upon a showing that there is a "need-to-know the information."8 See Executive Order No. 12,958, § 4.2(a)(3), 60 Fed. Reg. 19,825 (Apr. 17,1995), as amended byExec. Order No. 13,292,68 Fed. Reg. 15,315 (March 25,2003) ("A person may have access to classified information provided that... the person has a need-to-know the information.").

Nonetheless, the Supreme Court has recognized that "[fjairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." United States v. James Daniel Good Real Prop., 510 U.S. 43,55 (1993) (citation omitted). And this Court appreciates that adversarial proceedings contribute to a balanced and fair process. With these principles in mind, the Court believes that a proper balance can be struck, which it concludes has been accomplished as set forth below.

First, the Court declines to adopt the defendant's position that he must first have the

8 It is axiomatic (bat even if the defendant and his attorneys had been granted the highest level of security clearances, that feet alone would not entitle them to access to every piece of classified information this country possesses.

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opportunity to litigate whether the government has established exceptional circumstances before the government can submit to the Court ex parte filings pursuant to Section 4. There is simply no requirement for such a showing in the CD? A, and this Court cannot not judicially require it Cf. Sarkissian. 841 F.2d at 965-66 ("Nowhere does CIPA require the government to file a public claim of privilege before making an in camera, ex parte submission."). In fact, as the government has noted, "[disclosing the rationale for classification or the damage that reasonably could be expected to result [from disclosing documents to the defense] would entail risks of disclosing the very information that the government is seeking to protect." Gov't's Opp'n at 9. Nor can this Court accept the defendant's position that the government should be prohibited from including in its ex parte Section 4 filings written justification for its proposed substitutions or redactions. Section 4 requires the government to make a "sufficient showing" that proposed redactions or substitutions are necessary and adequate to serve the purpose of the defense. And it is therefore entirely appropriate for the government, as it must when making a Section 4 filing, to provide written justification for its contention that it is necessary to delete specific items of classified information or to provide substitutions for that information. Moreover, requiring the government to litigate whether a particular substitution or redaction is necessary would defeat the very purpose of Section 4 filings, as the defendant would no doubt be able to determine exactly what the government is attempting to withhold during such proceedings. See Sarkissian. 841 F.2dat965.

However, the defendant is a former national security official and some of his defense team have security clearances, and they have already been privy in this case to a variety of classified documents. Thus, this Court will require the government to justify, as part of any ex.
10

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parte filing pursuant Section 4. that an ex parte filing is necessary. This submission must necessarily include a declaration or affidavit, executed by an intelligence community official with the requisite classification review authority, which (1) describes the reasons for the classification of the information at issue, (2) sets forth the potential harm to national security that could result from its disclosure, and (3) explains why the defense, based upon appropriate classification guidelines, does not have a "need-to-know me information" in its unaltered form. See Gov't's Opp'n at 8. This showing must detail why the classified documents the government is producing gx parte are of a nature and quality distinguishable from the classified documents already produced to the defendant. Upon receipt of such a filing, the Court will review it and determine whether the filing should remain gx parte. or whether all or some portion of it should provided to the defendant.9 C£ Palermo. 360 U.S. at 354; Abourezk. 785 F.2d at 1061.

The defendant, undoubtedly, will continue to object to this process, arguing that this Court "cannot be expected to surmise the factual nuances of the defense" in order to determine whether a redaction or substitution submitted ex parte adequately compensates for the unaltered original or copy of a classified document. Def.'s Mot. at 8. While the Court is not unsympathetic to the defendant's concerns, it nonetheless anticipates, in large part based upon the defense as it understands it,10 that questions concerning the adequacy of substitutions and redactions will not be too complex for the Court to make without input from the defendant. However, the Court is mindful of the Supreme Court's admonition that "[i]n our adversary

9 The process described above shall be used for C1PA Section 4 filings, and should not be construed to limit flie government's ability to raises other objections to disclosure of the documents, e.g.. executive privilege or attorney client privilege.
10 In me defendant's papers filed in connection witii the first two motions to compel, the defendant carefully and thoroughly described his anticipated defense. See libby. 2006 WL 574260, at *7.

11

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system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate." Dennis v. United States. 384 U.S. 855, 875 (1966) (citations omitted). Nevertheless, by enacting Section 4 of the CIPA, Congress explicitly provided for ex parte proceedings. Accordingly, striking a balance between the Supreme Court's admonition in Dennis and Congress's adoption of Section 4, the Court will provide the defendant the opportunity to submit an e£ parte affidavit from counsel detailing the defense so that the Court will be in a more informed position to determine whether the government's proposed redactions or substitutions for a particular document adequately provide the defendant with what he needs to pursue his defense.11 gee. e.g.. United States v. Clegg. 740 F.2d 16,17 (9ih Cir. 1984) (observing that the district court permitted the defendant to file an ex parte. in camera submission to the Court to support its discovery requests); goindexter. 727 F. Supp. at 1479 n. 16 (permitting the defendant to file an ex parte submission so that the defendant would not have to "reveal to the prosecution the theories of his defense"); United States v. North. 698 F. Supp. 322,324 (D.D.C. 1988) (court conducted an is camera, ejc parte hearing with the defense so they could argue why certain documents were discoverable). In addition, if redacted or substitute documents are produced to the defendant pursuant to Section 4, the Court will provide the defendant an opportunity, if he so chooses, to file a motion for reconsideration alleging that the redacted or substitute documents are not sufficient to provide the defendant with what he needs to pursue his defense. And, as already noted, this Court reserves the right to require the government to provide the defendant with all or portions of a Section 4 filing if it

11 In light of the government's pending Section 4 motion, the defendant should submit, if he so chooses, this ex parte affidavit within two weeks from the date of this memorandum opinion and accompanying order.

12

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finds inadequate basis for the government's refusal to disclose the document,
D. Conclusion

Although the Court is not unsympathetic to the defendant's positions, for the reasons set forth above, this Court cannot agree'with the defendant's view that he and his counsel should be permitted to play a role equal to the government in the Section 4 proceedings the Court will have to conduct. The process this Court will employ strikes the appropriate balance on the one hand between ensuring that matters of national security remain protected, and on the other hand preserving the defendant's right to a fair trial The Court will therefore grant in part and deny in party the defendant's motion to preclude the government from making exparte CIPA Section 4 submissions to the Court absent a particularized showing of exceptional circumstances.

SO ORDERED this 5th day of April, 2006.

B. WALTON United States District Judge
13

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
) ) v. ) Criminal No. 05-394 (RBW)
) ' I. LEWIS LibbY, ) )Defendant. ) APR - 5 2008

U.S. DISTRICT COURT ORDER

Currently before the Court is the defendant's motion which seeks to prohibit the government from filing an ex parte submission under Section 4 of the Classified Information Procedures Act ("OP A"), 18 U.S,C. App. UJ (2000), without first making a particularized showing of exceptional circumstances. For the reasons set forth in the accompanying Memorandum Opinion, it is hereby this 5th day of April, 2006,

ORDERED that the defendant's motion is GRANTED IN PART AND DENIED IN PART. It is further

ORDERED that the government shall not present arguments concerning the materiality of documents in any ex parte Section 4 filings. It is further

ORDERED that the government will not be required to establish, through an adversarial process, that exceptional circumstances warrant an £& parte filings pursuant to Section 4. It is further
ORDERED mat the government will not be prohibited from including in its ex

1

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parte Section 4 filing a written justification for its proposed substitutions or redactions. It is further

ORDERED that any Section 4 filings submitted by the government must include a declaration, executed by an intelligence community official with the requisite classification review authority, which (1) describes the reasons for the classification of the information at issue, (2) sets forth the potential harm to national security that could result from its unauthorized disclosure, and (3) explains why the defense, based upon appropriate classification guidelines, does not have a "need-to-know the information." It is further

ORDERED that the defendant may submit an ex parte affidavit by April 19, 2006, detailing his defense or defenses so that the Court is in a more informed position to determine whether the government's proposed redactions or substitutions are necessary and adequate to serve the purposes of the defense.

SO ORDERED.

•REGGIE B. WALTON United States District Judge

Return to Comments

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
I. LEWIS LIBBY
also known as "Scooter Libby," Defendant.
CR. NO. 05-394 (RBW) Oral Argument Requested
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION OF I. LEWIS LIBBY TO DISMISS THE INDICTMENT
Theodore V. Wells, Jr. D.C. Bar No. 468934 James L. Brochin D.C. Bar No. 455456 Paul, Weiss, Rifldnd, Wharton
& Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212)373-3089
Joseph A. Tate Dechert LLP 2929 Arch Street Cira Centre
Philadelphia, PA 19104 (215)994-2000
William H. Jeffress, Jr.
D.C. Bar No. 041152
Alex J. Bourelly
D.C. Bar No. 441422
Alexandra M. Walsh
D.C. Bar No. 490484
Baker Botts LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20004
(202)639-7751
John D. Cline
D.C. Bar No. 403824
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
(415) 875-5812
March 31,2006

Case1:05-cr-00394-RBW Document 75 Filed 03/31/2006 Page 2 of 24
TABLE OF CONTENTS
Paee
TABLE OF AUTHORITIES.......................................................................................................ii
ARGUMENT ............................................................................................................................. 1
I. THE LEGALITY OF THE SPECIAL COUNSEL'S APPOINTMENT DEPENDS ON ITS OBJECTIVE TERMS, NOT ON THE SPECIAL COUNSEL'S PREVIOUSLY UNDISCLOSED, SUBJECTIVE UNDERSTANDING.......................... 1
II. THE SPECIAL COUNSEL IS A PRINCIPAL OFFICER FOR PURPOSES OF
THE APPOINTMENTS CLAUSE..................................................................................5
A. The Special Counsel Is Subject To No Direction Or Supervision By Any
Superior In The Department Of Justice Or Elsewhere................................................ 6
B. The Limitations On The Power Of The Independent Counsel Upheld In
Morrison Are Lacking Here....................................................................................... 8
C. The Special Counsel's "Theoretical" Removability Does Not Render Him An
Inferior Officer........................................................................................................ 10
D. Mr. Fitzgerald's Prior Appointment As A United States Attorney Does Not
Cure The Constitutional Defect In This Case........................................................... 14
III. THE SPECIAL COUNSEL'S APPOINTMENT VIOLATES FEDERAL LAW............ 16
IV. ALLOWING THE OFFICE OF SPECIAL COUNSEL TO STAND WOULD
CREATE ADANGEROUS PRECEDENT................................................................... 18
CONCLUSION........................................................................................................................ 19

Case1:05-cr-00394-RBW Document 75 Filed 03/31/2006 Page 3 of 24
TABLE OF AUTHORITIES CASES
Burlington Truck Lines v. United States, 371 U.S. 156 (1962)..................................................... 4
C.F. Trust, Inc. v. Tyler, 318 B.R. 795 (ED. Va. 2004)...............................................................3
*Edmondv. United States, 520 U.S. 651 (1997).................................................................passim
Hamdiv. Rumsfeld,5A2\J.S. 501 (2QQ4)....................................................................................1
Harlow v. Fitzgerald, 457 U.S. 800 (1982).................................................................................3
*InrePersico, 522 F.2d 41 (2d Cir. 1975)..................................................................................4
In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987)........................................................... 11, 17, 18
Morrison v. Olson, 487 U.S. 654 (1988)............................................................................passim
Planned Parenthood of Metropolitan Washington, D.C. v. Homer,
69 IF. Supp. 449 (D.D.C. 1988)......................................................................................4
Scott v. United States, 436 U.S. 128 (1978).................................................................................3
Shoemaker v. United States, 147'U.S. 282(1893)...................................................................... 15
Smallv. United States, 125 S. Ct. 1752 (2005).......................................................................... 16
Sternv. Lucy Webb Hayes Nat'I Training School, 381 F. Supp. 1003 (D.D.C. 1974)................. 18
United States v.Nixon, 418 U.S. 683 (1974).......................................................................10, 11
^UnitedStates v. Oakar, 924 F. Supp. 232 (D.D.C. 1996)...........................................................4
United States v. Sotomayor Vazquez, 69 F. Supp. 2d 286 (D.P.R. 1999).................................... 12
Websterv. Fall, 266U.S. 507(1925).................................................................................. 10, 18
Weissv. United States, 510 U.S. 163 (1994).............................................................................. 15
Whrenv. United States, 517 U.S. 806 (1996).............................................................................. 3

Case 1:05-cr-00394-RBW Document 75 Filed 03/31/2006 Page 4 of 24
FEDERAL STATUTES
28U.S.C. §510 .................................................................................................................. 16, 17
28U.S.C. §515 ........................................................................................................................17
28U.S.C. §516.........................................................................................................!, 16, 17, 18
28U.S.C. §519.........................................................................................................!, 16, 17,18
FEDERAL REGULATIONS
28 C.F.R. §0.37 (1973) ............................................................................................................11
28 C.F.R. § 50.2(b)(9).................................................................................................................8
28 C.F.R. Part600.................................................................................................................... 18
UNITED STATES ATTORNEYS' MANUAL
§9-27.140...................................................................................................................................8
OTHER AUTHORITIES
3 Am. Jur. 2d Agency § 2 (2002)............................................................................................... 18
Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999)...............................................7
John Harmon, Litigating Authority of the Office of Federal Inspector, Alaska Natural Gas Transportation System, 4B U.S. Op. Off. Legal Counsel 820, 1980 WL 20994 (1980)................................................................................................. 16
Theodore Olson, The Attorney General's Role as Chief Litigator for the United States,
6 U.S. Op. Off. Legal Counsel 47, 1982 WL 170670 (1982).......................................... 17
Restatement (Second) of Agency § 32 cmt. a..............................................................................3
Leon Ulman, United States Attorneys, Suggested Appointment Power of the Attorney
General, Constitutional Law (Article 2, § 2, cl. 2), 2 U.S. Op. Off. Legal Counsel
58, 1978 WL 15265 (1978)............................................................................................ 15
111

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ARGUMENT
I. THE LEGALITY OF THE SPECIAL COUNSEL'S APPOINTMENT DEPENDS ON ITS OBJECTIVE TERMS, NOT ON THE SPECIAL COUNSEL'S PREVIOUSLY UNDISCLOSED, SUBJECTIVE UNDERSTANDING.
The Special Counsel does not reconcile his unprecedented grant of power with the controlling "direction and supervision" test set forth inEdmondv. United States, 520 U.S. 651, 662-63 (1997). Nor does he establish that the limitations the Supreme Court relied on in Morrison v. Olson, 487 U.S. 654, 671-72 (1988), are present in the terms of his appointment. Finally, he fails to explain how his mandate—to operate "independent of the supervision or control of any officer of the Department," Exh. C1—could possibly be squared with the Attorney General's statutory obligation to supervise all litigation to which the United States is a party, 28 U.S.C. §§516 and 519.
Instead, the government attempts to salvage the appointment by submitting two affidavits, recently prepared by Mr. Comey and Mr. Fitzgerald, claiming that their previously undisclosed, subjective understanding of the appointment was narrower. For example, despite the fact that the Special Counsel was given "a// the approval authority of the Attorney General"— including authority to exempt himself from substantive Department policies, see infra at 8— Mr. Comey now asserts that "it was my intention that the Special Counsel would follow substantive Department policies" in exercising that authority. Comey Aff. 13 (emphasis added). Despite the fact that Mr. Comey stated at the time of Mr. Fitzgerald's appointment that the Special Counsel did not "have to come back to the [A]ttorney [G]eneral and get permission" to "expand [his] jurisdiction," Exh. A. at 9, he now claims that it was his "understanding.. . that any expansion of the scope of the Special Counsel's investigation would require my approval." Comey Aff. f 3 (emphasis added). Mr. Comey dismisses his earlier statements as
1 All "Exh." citations herein refer to exhibits to our initial memorandum.

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"inadvertent[]," "extemporaneous," and "inartful[]." Id. 14. Similarly, despite the fact that as recently as August 2004 Mr. Fitzgerald characterized himself as "the functional equivalent of the Attorney General on this matter," Exh. E f 5, he now insists in response to Mr. Libby's challenge that he always "understood" he had no authority to expand his jurisdiction, and that he was required to follow certain substantive Department policies, see Fitzgerald Aff. ffl| 3, 4.2
Neither affidavit suggests that Mr. Comey ever told Mr. Fitzgerald about the newly claimed limitations on his powers as Special Counsel—limitations that are nowhere mentioned in the letters of appointment, or in Mr. Comey's public statements, or in Mr. Fitzgerald's prior affidavit, or, apparently, in any other contemporaneous document. Nor does Mr. Comey's affidavit state that he communicated those limitations to his "successors," Associate Deputy Attorney General Margolis and Associate Attorney General McCallum—whose role in this matter is asserted for the first time in the government's response, see Resp. at 21. The government fails, for that matter, to provide an affidavit from Mr. Margolis, or Mr. McCallum, or any other present employee of the Department confirming his awareness of the limitations Mr. Comey "intended" to apply. Whether anyone is now in a position to enforce those limitations
2 The fact that the Special Counsel ignored the Department's policies in his October 28, 2005 press conference is good evidence that he in fact understands his authority to be as broad as Mr. Comey defined it at the time of appointment. See Def.'s Mem. in Support of Mot. to Dismiss (hereinafter "Mem.") at 16-17. The Special Counsel denies that his press conference was not in compliance, pointing out that he "reminded the audience of the presumption of innocence on several occasions." Govt's Resp. to Mot. to Dismiss (hereinafter "Resp.") at 26. But nothing in the policy suggests that a passing reference to the presumption of innocence gives a prosecutor license to say whatever he wants in the remainder of his remarks. Mr. Fitzgerald also insists that he "stay[ed] within the four corners of the indictment in describing the charges." Id. Yet, he does not deny that he claimed the case involved disclosure of classified information or that at one point he incorrectly asserted that Mr. Libby was "the first official to disclose Flame's employment." See id at 26 n.9. Neither of those allegations appears anywhere in the indictment, and both seem wholly irrelevant to what Mr. Fitzgerald has elsewhere characterized as a simple perjury case. Moreover, it is hard to see, as the Special Counsel now claims, how flatly asserting the defendant's guilt or accusing him of uncharged crimes furthers any legitimate law enforcement goal. See id. at 27.

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therefore remains unknown. Mr. Comey—who left the Department to work in the private sector months ago—certainly does not have that power.
The Court should reject the government's attempt to defend Mr. Fitzgerald's appointment by changing the factual record in this manner. Government officials ought not be permitted to hand over vast, unsupervised powers to so-called inferior officers, and then deflect legal challenges by claiming that they never "intended" to do so. The legality of the Special Counsel's appointment should depend on the objective terms of Mr. Comey's action, not on undisclosed subjective understandings offered for the first time in response to a legal challenge.
In virtually every other context, courts refuse to consider an executive officer's undisclosed subjective intent in determining whether the officer's actions were lawful. See, e.g., Whren v. United States, 517 U.S. 806, 814 (1996) (refusing to consider officer's "subjective intent" in Fourth Amendment context); Harlow v. Fitzgerald, 457 U.S. 800, 816-18 (1982) (refusing to consider "subjective intent" in qualified-immunity context); cf. Scott v. United States, 436 U.S. 128, 136-37 (1978) ("Subjective intent alone . .. does not make otherwise lawful conduct illegal or unconstitutional"). The same objective standard applies to delegations of authority: The scope of a delegation "depends not upon the intent of either party but upon the expressedintent." Restatement (Second) of Agency § 32 cmt. a (emphasis added). The reasons for that objective approach are obvious: "[UJnexpressed beliefs or views [are] rarely helpful in discerning the parties' intent. . .; each party, as here, typically claims to have understood and intended the meaning that best suits its current position." C.F. Trust, Inc. v. Tyler, 318 B.R. 795, 809-810 (E.D. Va. 2004).
Applying that objective approach, courts look to the "writings, guidelines, practices and oral directions transmitted through DOJ's chain of command" to determine the scope of a special

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prosecutor's authority. United States v. Oakar, 924 F. Supp. 232, 240 (D.D.C. 1996), rev'din part on other grounds, 111 F.3d 146 (D.C. Cir. 1997); see In re Persico, 522 F.2d 41, 66 (2d Cir. 1975). Here, Mr. Comey's affidavit merely sets forth limitations he "understood]" and "intended" as restrictions on the Special Counsel's power. Comey Aff. | 3. He does not claim he ever communicated those limitations to Mr. Fitzgerald, in writing or otherwise. Rather, he asserts only that, "[t]o the best of [his] knowledge, the Special Counsel shared each of these understandings and knew of the intended limits on his authority." Id. Those recently expressed, subjective understandings are no substitute for objectively verifiable limits on the Special Counsel's power. Mr. Comey's contemporaneous "writings" and "oral directions," Oakar, 924 F. Supp. at 240, make clear the Special Counsel is a principal officer.3
Reliance on undisclosed subjective intent is particularly problematic when the intent manifests itself for the first time in affidavits prepared in the course of litigation. Courts routinely reject attempts to defend unlawful governmental action based on post hoc rationalizations—particularly where, as here, those rationalizations are offered by interested parties. See, e.g., Planned Parenthood of Metropolitan Washington, D.C. v. Homer, 691 F. Supp. 449, 456 (D.D.C. 1988) (affidavits offered by agency officials in defense of regulations are "post-hoc statements of interested onlookers [that are] entitled to no weight"} (emphasis in original); cf. Burlington Truck Lines v. United States, 371 U.S. 156, 169 (1962) ("Courts may not accept appellate counsel's post hoc rationalizations for agency action; an agency's discretionary order [may] be upheld, if at all, on the same basis articulated in the order by the agency itself). This Court should do the same.
3 Notably, though the government dismisses Mr. Comey's statements at his press conference as "parol evidence," Resp. at 28, it freely cites those statements when it believes they support its position. See, e.g., id. at 14, 23.
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Should the Court conclude, despite the foregoing, that the subjective, undocumented, and previously undisclosed understanding of Mr. Comey and Mr. Fitzgerald is relevant, Mr. Libby requests an evidentiary hearing at which he may examine the witnesses and obtain heretofore undisclosed communications between Mr. Fitzgerald and Mr. Comey (or Mr. Margolis or Mr. McCallum) and other Department of Justice documents concerning the authority of the Special Counsel. If Mr. Fitzgerald's and Mr. Comey's subjective intent regarding the appointment should be considered, then Mr. Libby certainly has a right to determine if, for example, there exist any contemporaneous internal Department documents or sealed court filings that bear upon the "understandings" now set forth in their after-the-fact affidavits.
IL THE SPECIAL COUNSEL IS A PRINCIPAL OFFICER FOR PURPOSES OF THE APPOINTMENTS CLAUSE.
In response to Mr. Libby's challenge, the government also relies heavily on the fact that other courts have rejected legal challenges to other special prosecutors. See Resp. at 3, 6, 10. But all of those cases precede Edmond, in which the Supreme Court definitively established that unless an officer is subject to "direction and supervision" by a superior he is a principal for Appointments Clause purposes. Because the Special Counsel acts without direction or supervision by anyone in the Department of Justice, or elsewhere, that irreducible constitutional minimum is not satisfied in this case. What is more, none of the cases on which the government relies involved facts nearly as extreme as those here. The Special Counsel was given the power to ignore Department policies as he sees fit, to expand his jurisdiction without limitation, and to continue his investigation indefinitely. Neither Morrison nor any other case authorizes that unprecedented grant of power.

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A. The Special Counsel Is Subject To No Direction Or Supervision By Any Superior In The Department Of Justice Or Elsewhere.
In Edmond, its most recent case on the line between principal and inferior officers, the Supreme Court held that:
[I]n the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.
520 U.S. at 663. The terms of the Special Counsel's appointment make clear that the "direction and supervision" mandated by the Appointments Clause are entirely absent in this case. See Mem. at 8-18.
Mr. Comey authorized the Special Counsel to operate "independent of the supervision or control of any officer of the Department." Exh. C. He explicitly renounced his obligation to serve as the "ultimate supervisor^ and decision-maker[] in this case," and instead assigned that core responsibility to the Special Counsel. Exh. A at 2. Under the terms of his appointment, the Special Counsel has sole power to "decide . .. how to continue the investigation and what prosecutive decisions to make," and he need not "come back to ... anyfone] at the Justice Department for approvalf]." Id, Armed with that power, the Special Counsel has made numerous decisions implicating national security, the First Amendment and other fundamental public interests—with absolutely no input, guidance or responsibility by any properly appointed principal officer. See Mem. at 14-18.
The Special Counsel is not even required to inform anyone at the Department or elsewhere of the progress of his investigation. Exh. A at 9. Even budgetary oversight has been eliminated so as to "free[] [the Special Counsel] from possible budget constraints that potentially might serve to limit his activities." Exh. G. at 5.

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As explained in our initial memorandum, the Appointments Clause reflects the Framers' fundamental concern for political accountability in the exercise of executive power. See Mem. at 6-8. The Special Counsel is, for all intents and purposes, accountable to no one. Given his vast power, he unquestionably qualifies as a principal officer under the constitutionally mandated standard set forth in Edmond.
The government tries to avoid the force of Edmond by suggesting that it does not control in this case. See Resp. at 11-13, 30-32. That is incorrect. Edmond is the Supreme Court's most recent decision on the distinction between principal and inferior officers. To the extent it conflicts with the Morrison analysis, Edmond must take precedence. See generally Hamdi v. Rumsfeld, 542 U.S. 507, 522-23 (2004) (noting that where an opinion both "postdates and clarifies" an earlier opinion, the later opinion provides the "most apposite precedent"). While Edmond did not explicitly overrule Morrison, it made clear that Morrison did not establish a "definitive test for whether an office is 'inferior' under the Appointments Clause." 520 U.S. at 661.4 It then analyzed the history and purpose of the Clause and, based on that analysis, set forth a clear rule rooted in the text and purpose of the Appointments Clause: If an officer is not subject to direction and supervision by a superior, he is a principal officer for Appointments Clause purposes.
Contrary to the Special Counsel's suggestion, nothing in Edmond indicates that the Court intended that constitutional requirement to apply only to judges on the Coast Guard Court of Criminal Appeals, or some other limited class of officers. See Resp. at 4, 12. Rather, Edmond
4 See Mem. at 19 n.8; see also Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 810, 811(1999) (explaining that Morrison provided "a doctrinal test good for one day only" and that in Edmond the Supreme Court "apparently abandoned [that] ad hoc test").

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As explained in our initial memorandum, the Appointments Clause reflects the Framers' fundamental concern for political accountability in the exercise of executive power. See Mem. at 6-8. The Special Counsel is, for all intents and purposes, accountable to no one. Given his vast power, he unquestionably qualifies as a principal officer under the constitutionally mandated standard set forth in Edmond.
The government tries to avoid the force of Edmond by suggesting that it does not control in this case. See Resp. at 11-13, 30-32. That is incorrect. Edmond is the Supreme Court's most recent decision on the distinction between principal and inferior officers. To the extent it conflicts with the Morrison analysis, Edmond must take precedence. See generally Hamdi v. Rumsfeld, 542 U.S. 507, 522-23 (2004) (noting that where an opinion both "postdates and clarifies" an earlier opinion, the later opinion provides the "most apposite precedent"). While Edmond did not explicitly overrule Morrison, it made clear that Morrison did not establish a "definitive test for whether an office is 'inferior' under the Appointments Clause." 520 U.S. at 661.4 It then analyzed the history and purpose of the Clause and, based on that analysis, set forth a clear rule rooted in the text and purpose of the Appointments Clause: If an officer is not subject to direction and supervision by a superior, he is a principal officer for Appointments Clause purposes.
Contrary to the Special Counsel's suggestion, nothing in Edmond indicates that the Court intended that constitutional requirement to apply only to judges on the Coast Guard Court of Criminal Appeals, or some other limited class of officers. See Resp. at 4, 12. Rather, Edmond
4 See Mem. at 19 n.8; see also Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 810, 811(1999) (explaining that Morrison provided "a doctrinal test good for one day only" and that in Edmond the Supreme Court "apparently abandoned [that] ad hoc test").

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Second, whereas the independent counsel was statutorily required io obtain the Attorney General's permission before expanding his jurisdiction, the Special Counsel was told that he did not "have to come back to the attorney general and get permission" to "expand [his] jurisdiction," but could pursue the investigation "wherever he wants to pursue it." Mem. at 20; Exh. A at 9. Unlike the independent counsel inMorrison, if the Special Counsel decides he wants to investigate a crime not specified in his original mandate, he may do so without approval—and, according to Mr. Comey's instructions, without informing anyone at the Department of his decision.
Third, whereas the independent counsel's tenure was statutorily subject to review and termination by a three-judge panel sitting, the Special Counsel was given no "timeline" at all and was told that he alone would "make th[e] judgment" when his "investigation will be over." Exh. A at 5. Thus, unlike in the independent counsel regime, here there is no procedure by which anyone in the Department or elsewhere periodically assesses whether continued investigation is necessary and appropriate rather than unreasonable and unwarranted. See Mem. at 20.
Aside from these differences in their respective powers, there is another crucial distinction between Morrison and this case: Whereas the independent counsel regime was created by an act of Congress, the Office of Special Counsel was created through the unilateral action of an Acting Attorney General. Here, unlike inMorrison, Congress has not sanctioned the appointment at issue. To the contrary, in 1999, faced with resounding evidence of prosecutorial excesses, Congress chose to abolish the independent counsel. Now, however, Mr. Comey has vested the Special Counsel with powers even greater than those enjoyed by the independent counsel, thereby contravening the intent Congress clearly manifested when it allowed the independent counsel provisions to expire. See Mem. at 18-19, 29.

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C. The Special Counsel's "Theoretical" Removability Does Not Render Him An Inferior Officer.
The only respect in which the Special Counsel's authority is even arguably more constrained than that of the independent counsel in Morrison is his removability: Whereas the independent counsel was removable only for cause, the Special Counsel is purportedly removable at will. See Resp. at 24; Exh. A at 7-8.5 According to the government, at-will removability "by itself, makes the Special Counsel an inferior officer and places political accountability in the principal officer to which the Special Counsel is subordinate." Resp. at 23 (emphasis added). The government is wrong. At-will removability is not sufficient—as a matter of law or common sense—to render an officer inferior for Appointments Clause purposes.
The government claims that the power to remove at will "appears to have been decisive to the determination that the special prosecutors at issue in Nixon and In re Sealed Case were inferior officers." Id. But Nixon did not raise, much less resolve, any challenge to the prosecutor's appointment. Rather, the questions presented were whether the President was obligated to comply with a subpoena and, preliminarily, whether that issue was justiciable. See 418 U.S. 683, 692-716 (1974). While the Court may have "presupposed the validity of [the] regulation appointing the Special Prosecutor," In re Sealed Case, 829 F.2d 50, 55 n.30 (B.C. Cir. 1987), unchallenged "presuppositions" have no precedential effect. See Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents").
5 Whether the Special Counsel is actually subject to at-will removal is by no means clear. See Mem. at 22. Mr. Comey stated at his press conference that "in theory" he could remove the Special Counsel—but only "if [he] kn[ew] what [the Special Counsel was] doing" and only if he (Mr. Comey) had "a darn good reason for doing it." Exh. A at 8.
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The government's reliance on the D.C. Circuit's decision in In re Sealed Case is also misplaced. See Resp. at 10-11, 19-20, 23-24. Whatever the D.C. Circuit may have said about removability in that case, the Supreme Court's more recent pronouncements leave no doubt that removability is not dispositive. Edmond based its holding on removability along-with active administrative oversight, governing procedural rules, and lack of authority to make final decisions on behalf of the Executive. See 520 U.S. at 664-65; see also id. at 667 (Souter, J., concurring and concurring in the judgment) (explaining that the Court held the judges inferior because of "administrative supervision ... by the Judge Advocate General. . ., combined with his power to control them by removal from a case") (emphasis added).
Likewise, Morrison made clear that removability was merely one factor in a multi-factor test. See 487 U.S. at 671-72. The Special Counsel repeatedly quotes Justice Scalia's assertion that "[i]f [the Independent Counsel] were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior." Id. at 716 (Scalia, J., dissenting); see Resp. at 9-10, 13 n.2, 23. But a statement in one Justice's dissent obviously has no bearing on how the Supreme Court's governing opinions apply.6 In the end, the Special Counsel can cite no controlling precedent for the proposition that removability, at-will or otherwise, is sufficient to render an officer inferior. See United States v. Sotomayor Vazquez, 69
6 The Court in Morrison stated that its decision to uphold the independent counsel provisions was consistent withMxow's "reference" to the Watergate Special Prosecutor as a "subordinate officer." 487 U.S. at 673 (emphasis added). But it based that statement on the fact that the "authority [of that prosecutor] was similar to that of [the independent counsel]," id., not on at-will removability alone. The regulations appointing the special prosecutor in Nixon made clear that he was subject to limitations similar to those imposed on the independent counsel in Morrison (and in In re Sealed Case)—limitations that are not present here. See 28 C.F.R. § 0.37 (1973) (obligating the Watergate Special Prosecutor to comply with DOJ regulations and policies, unless the Attorney General agrees otherwise, and indicating that the special prosecutor's jurisdiction can be expanded only at the request of the Attorney General); Mem. at 20-21.
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F. Supp. 2d 286, 291 (D.P.R. 1999) ("[W]e have not unearthed a single case in which a court has held that the power to remove is dispositive as to whether an officer is 'principal' or 'inferior.' Rather, the removal power is one of many factors which courts examine in making the distinction and determining whether an Executive official directs or supervises the official").
Refusal to rely on removability alone makes sense. Edmond establishes that Mormon's four factors are relevant only to the extent they actually bear on direction and supervision. Cf. Resp. at 30-31. Absent any oversight, the "theoretical" power to remove simply does not amount to supervision, and thus does not provide the accountability the Appointments Clause demands. See Mem. at 7, 22. Here, Mr. Comey established no mechanism whatsoever that would provide anyone outside the Office of Special Counsel with any insight into its internal deliberations or decision-making. Removal may be a "powerful tool for control" in some circumstances, Resp. at 10, but it is no control at all when an officer's activities and decision-making are a mystery.
Perhaps recognizing that removability without information has no legal or practical significance, the Special Counsel insists that "the power to remove at will carries with it the power to demand information if the Acting Attorney General deems it necessary." Id at 24. That argument is flatly contrary to the terms of Mr. Fitzgerald's appointment. See Exh. A at 2, 9 (Special Counsel has no duty to file reports or otherwise provide information to anyone within the Department). Furthermore, the reasoning is circular: How is the Acting Attorney General supposed to know that he should make such a demand?
The government also points out that "much information about the investigation of the Special Counsel is in the public domain and therefore available to the Acting Attorney General in exercising the power to remove the Special Counsel." Resp. at 24. In fact, most of the information regarding the Special Counsel's investigation remains cloaked in secrecy. For
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example, during his press conference announcing Mr. Libby's indictment, the Special Counsel declined to answer any questions about the witnesses who had testified before the grand jury or possible indictments of other individuals. Exh. F at 5. He did announce that he intended to continue his investigation, id at 7, and according to press reports, he convened another grand jury shortly thereafter to do so. There is, however, virtually no publicly available information regarding this ongoing investigation, including why it must continue or when it will ever end. Mr. Fitzgerald's refusal to release this information into the "public domain" may or may not be justified by the "rules of grand jury secrecy." Id What is clear, however, is that such information would be crucial to any superior overseeing the investigation, and that it cannot possibly be obtained simply by reviewing the press reports on Mr. Fitzgerald's investigative efforts.
Further, where necessary information does enter the public domain, it typically does so long after the fact. For example, it only recently came to light that the Special Counsel learned as early as February 2004 who disclosed the CIA identity of Valeric Plame Wilson to Robert Novak. See Mem. at 17. A properly appointed principal officer may well have disagreed with the Special Counsel that, notwithstanding that revelation, it was worthwhile to pursue an investigation of Mr. Libby or others based on alleged inaccuracies in statements to the FBI. Now, however, it is too late for anyone to undo that decision. Whatever Edmond contemplated by "direction and supervision at some level," it surely meant something more than periodically checking the Washington Post to find out if one's unchecked "subordinate" has gone too far.
Finally, it is worth emphasizing that much of the information in the public domain about this case is flat wrong. As the government is surely aware, reporters and pundits continue to publish rumor and innuendo about the Special Counsel's investigation, the relevant evidence and
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possible future developments. Certainly, the Acting Attorney General cannot meaningfully oversee the Special Counsel by reviewing the overheated speculation about this case.
The Special Counsel makes much of the distinction between removability for cause and at-will removability, Resp. at 9-10, but that distinction is beside the point here. Morrison and Edmonddid not consider removability as a mere "theoretical" matter, but as a means of direction and supervision. Where the Acting Attorney General expressly renounces all direction and supervision, authorizes a special counsel to make important public policy decisions with no input from anyone, and leaves in place no mechanism by which anyone in the Department could have any insight into the Special Counsel's internal deliberations or decision-making, it is absurd to suggest that the theoretical power to remove—even if it is at-will—could provide the public accountability that the Appointments Clause requires. Restricted or not, that power has no practical significance at all.
In short, nearly every feature Morrison relied on to uphold the independent counsel statute is lacking in the Special Counsel's case, and the one feature even nominally present— removability—is meaningless.
D. Mr. Fitzgerald's Prior Appointment As A United States Attorney Does Not Cure The Constitutional Defect In This Case.
Finally, the government contends that the Appointments Clause is not even implicated in this case because, prior to becoming Special Counsel, Mr. Fitzgerald was "appointed by the President and confirmed by the Senate" to serve as a United States Attorney, and because he was then given his power as Special Counsel by Mr. Comey rather than through a "formal appointment." Resp. at 2. Those arguments, if accepted, would render the Appointments Clause a dead letter.
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The fact that a person has been properly appointed to serve in one particular executive office does not make him eligible to exercise the powers of all other executive offices. Mr. Fitzgerald was nominated by the President and confirmed by the Senate to serve as the United States Attorney for the Northern District of Illinois—an inferior officer position. See Morrison, 487 U.S. at 676-77; Leon Ulman, United States Attorneys, Suggested Appointment Power of the Attorney General, Constitutional Law (Article 2, § 2, cl. 2), 2 U.S. Op. Off. Legal Counsel 58, 1978 WL 15265 (1978). Under some circumstances, a properly appointed inferior officer may be given additional inferior-officer powers without a second appointment. See Shoemaker v. United States, 147 U.S. 282, 301 (1893); see also Weissv. United States, 510 U.S. 163, 174 (1994). But the appointments process cannot be dispensed with where, as here, an inferior officer is elevated to principal officer status. See Weiss, 510 U.S. at 182, 189-91 (Souter, I, concurring); cf. id. at 196 a* (Scalia, J., concurring in part and concurring in the judgment) ("[W]hether the Appointments Clause permits conferring principal-officer responsibilities upon an inferior officer in a manner other than that required for the appointment of a principal officer . . . w[as] in my view wisely avoided by the Court").
Furthermore, the notion that a wholesale transfer of principal-officer power to an inferior officer does not implicate the Appointments Clause because no "formal appointment" occurred makes no sense. It is the very lack of a formal appointment by the President with the advice and consent of the Senate that creates the constitutional violation in this case. Allowing the Acting Attorney General to cede his authority to another official by executive fiat is directly contrary to the fundamental purpose of the Clause: to prevent the arbitrary exercise of principal-officer power by ensuring that those who exercise it are fully vetted and approved by two branches of
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government. See Mem. at 6-8. Here, contrary to the intent of the Framers, the legislature was entirely cut out of the process. See supra at 9; Mem. at 6-8. m. THE SPECIAL COUNSEL'S APPOINTMENT VIOLATES FEDERAL LAW.
The Special Counsel's appointment also runs afoul of 28 U.S.C. §§ 516 and 519, which impose a mandatory duty on the Attorney General to supervise and direct all litigation to which the United States is a party. Mem. at 25-31. The government offers two responses: first, that the "plain language" of 28 U.S.C. § 510 allows the Attorney General to delegate "any function"; and second, that Mr. Comey's abdication of responsibility is itself "one manner of the exercise of his authority [to] supervise." Resp. at 19-20. The government's interpretation, however, reads the Attorney General's core supervisory duties out of the statute entirely. That interpretation should be rejected.
Although section 510 literally permits delegation of "any function of the Attorney General," 28 U.S.C. § 510 (emphasis added), the Supreme Court has repeatedly cautioned that the word "any" in a statute does not literally mean "any." Rather, the word is "limited in [its] application to those objects to which the legislature intended to apply [it]." Small v. United States, 125 S. Ct. 1752, 1754-55 (2005) (internal quotation marks omitted; citing several other cases). Sections 516 and 519 show that, as a general rule, Congress intended the Attorney General to retain personal responsibility for ultimate direction and supervision of litigation. See 28 U.S.C. § 519 ("[T]he Attorney General shall supervise all litigation . ..") (emphasis added); John Harmon, Litigating Authority of the Office of Federal Inspector, Alaska Natural Gas Transportation System, 4B U.S. Op. Off. Legal Counsel 820, 824, 1980 WL 20994 (1980) (section 519 imposes a "mandatory duty on the Attorney General"). Interpreting "any function" to include even the core duty to supervise imposed by sections 516 and 519 would render that aspect of those provisions a nullity. The Attorney General would then never have a personal
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obligation to direct and supervise litigation; he could always hand off those duties to other Department officials and thereby absolve himself of any responsibility. This Court should not interpret "any function" in a manner that so clearly undermines the congressional scheme, particularly when doing so raises such grave constitutional concerns. See Mem. at 31.
The Special Counsel argues in the alternative that section 510 should be "harmon[ized]" with sections 516 and 519 by "interpreting the Attorney General's delegation of functions to other officers of the Department as one manner of the exercise of his authority [to] supervise and direct litigation." Resp. at 19-20. That argument "harmonizes" two provisions only by obliterating one of them completely. The Attorney General cannot "supervise" litigation by declining to supervise it. When it said "supervise," Congress obviously did not mean "supervise or not supervise."
The construction that actually harmonizes all these provisions is the one we propose: Section 510 allows delegation of litigating authority but not abdication of the ultimate responsibility for direction and supervision. Cf. Theodore Olson, The Attorney General's Role as Chief Litigator for the United States, 6 U.S. Op. Off. Legal Counsel 47, 59, 1982 WL 170670 (1982) ("While the Attorney General may delegate some litigating authority . .., he may not delegate the ultimate responsibility which is by law vested exclusively in the Attorney General").
In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), is not to the contrary. Cf. Resp. at 18-19. That case did not mention, let alone analyze, sections 516 and 519. It addressed the general question whether sections 510 and 515 authorize the Attorney General to create an independent counsel's office. See 829 F.2d at 55. It did not consider, and therefore does not resolve, the more specific question presented here: whether those sections permit a delegation that conflicts directly with sections 516 and 519. See Webster, 266 U.S. at 511. In any event, as already
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discussed, the delegation here goes far beyond the one in In re Sealed Case. Mr. Comey did not merely free Mr. Fitzgerald from "ongoing supervision," 829 F.2d at 55; he renounced all supervision and direction and then granted the Special Counsel authority to expand his jurisdiction and extend his tenure as he sees fit. See supra at 6, 9; Mem. at 10-13, 24-25.
We do not contend that sections 516 and 519 require "ongoing, active monitoring and oversight." Resp. at 20. Nor do we contend that 28 C.F.R. Part 600 is the "minimum required." Id. But sections 516 and 519 do contemplate some level of ultimate direction and supervision. Here, there is none at all.
IV. ALLOWING THE OFFICE OF SPECIAL COUNSEL TO STAND WOULD CREATE A DANGEROUS PRECEDENT.
The government warns that by granting this motion the Court would "open[] the door to Appointments Clause challenges" every time the Attorney General delegates authority to "prosecutors in the normal chain of command." Resp. at 32-33. But the question here is not whether the Attorney General may delegate authority to inferiors under his control. A delegation empowers a subordinate officer to exercise duties entrusted by law to his superior, but it does not relieve the supervisor of the duty of direction and supervision. See Mem. at 8; 3 Am. Jur. 2d Agency § 2 (2002) ("[A] prime element of an agency relationship is the existence of some degree of control by the principal over the conduct and activities of the agent"); cf. Stern v. Lucy Webb Hayes Nat'1 Training School, 381 F. Supp. 1003, 1013 (D.D.C. 1974) (holding that a corporate director may delegate "responsibility to fellow directors, corporate officers, or even outsiders, but he must continue to exercise general supervision over the activities of his delegates").
Rather, the question presented by Mr. Libby's motion is whether the Attorney General may expressly abdicate his core supervisory functions over a criminal prosecution to an officer
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who, though nominally an inferior, is completely walled off from the command and control of the Department. Under the Constitution and federal law, the answer is no.
Indeed, it is not Mr. Libby's argument, but the government's that threatens to establish the dangerous precedent here. If the abdication of power to the Special Counsel is allowed to stand, the Attorney General would be free to shield any future investigation—however unwarranted and however motivated by malice—from any degree of public accountability. It would allow him to place all of his power in an unchecked prosecutor, selected solely by him, and then disclaim responsibility for any of the prosecutor's actions. It would place individual rights in jeopardy by leaving the targets of an investigation with no recourse to ranking Department officials where an unsupervised prosecutor overreaches or abuses his power. And it would undermine the effort to promote the fair and evenhanded administration of justice by allowing certain prosecutors to ignore entirely the carefully crafted policies and regulations that apply in all other federal criminal cases. To ensure that the protections and public accountability demanded by the Appointments Clause remain intact, the Court must reject the Special Counsel's unlawful exercise of power in this case.
CONCLUSION
For the foregoing reasons and those stated in our initial memorandum, Mr. Libby respectfully moves this Court to dismiss the indictment.
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