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Prosecutor Seeks to End Delays by Lewis Libby in Purgery Trial

INTRODUCTION:
On October 28, 2005, a federal grand jury returned a five-count indictment charging defendant I. Lewis "Scooter" Libby with obstruction of justice, perjury, and making false statements to federal investigators, in violation of 18 U.S.C. ?? 1503, 1623 and 1001, in connection with an investigation concerning leaks to reporters of classified information regarding the employment of Valerie Plame Wilson.


The headline is my interpretation, but it's well supported by the text of this recent filing by special prosecutor Patrick Fitzgerald. One of the highlights of the documents is the fact that Fitzgerald seeks to distance himself from the "government" in the matter of alignment, staing that a pledge of co-operation from Cheney's office doesn't mean that they they are aligned with the prosecution. While Libby continues to seek more documents to support his "case", Fitzgerald contends that this is unreasonable, implying that as right hand man to Cheney Libby had more acces to background information than Fitzgerald himself and furthermore the documentation is not neccessary becuase Libby is on trial for making false staements in his previous testimony. not for the actual crimes being investigated in the Plame outing. So here is the rest of the document - there are a few null characters, but the html translation is otherwise good.

David Roknich,


DOGSPOT


UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA )


) CR. NO 05-394 (RBW)


v. ))


I. LEWIS LIBBY, )


also known as "Scooter Libby" )


GOVERNMENT'S RESPONSE TO DEFENDANT'S


THIRD MOTION TO COMPEL DISCOVERY


The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL


COUNSEL, respectfully submits the following response to the "Third Motion of I. Lewis Libby to


Compel Discovery Under Rule 16 and Brady."


INTRODUCTION


On October 28, 2005, a federal grand jury returned a five-count indictment charging


defendant I. Lewis "Scooter" Libby with obstruction of justice, perjury, and making false statements


to federal investigators, in violation of 18 U.S.C. ?? 1503, 1623 and 1001, in connection with an


investigation concerning leaks to reporters of classified information regarding the employment of


Valerie Plame Wilson.


To date, the government has provided defendant with approximately 12,300 pages of


classified and unclassified discovery, including the entire set of documents produced to the Office


of Special Counsel by the Office of the Vice President, a large quantity of classified and unclassified


documents from several other government agencies, and certain grand jury testimony and documents


provided by reporters. The government currently is in the process of obtaining from the Office of


the Vice President and producing to defendant an estimated 1,400 pages of additional handwritten


notes prepared during the period May 6, 2003 through March 24, 2004, pursuant to the Court's


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 1 of 39


2


ruling from the bench on February 24, 2006. The government also is currently in the process of


providing defendant with additional discovery concerning his morning intelligence briefings during


the periods of June 7-14, 2003, October 12-16, 2003, November 24-28, 2003, March 3-7, 2003, and


March 22-26, 2003, pursuant to the Court's Order of March 10, 2006.


ARGUMENT


Defendant's third discovery motion seeks expansive additional discovery, principally on the


ground that the documents sought are "material to the preparation of the defense," as that phrase is


used in Fed. R. Evid. 16(a)(1)(E)(i). Defendant asserts that the documents he seeks, which among


other things include nearly every document generated by four large executive branch entities relating


to Ambassador Joseph Wilson's trip to Niger, are discoverable under Rule 16 because they will


assist in the preparation of witness examinations, provide context for the government's allegations,


and demonstrate his lack of a motive to commit the perjury and false statement offenses charged in


the indictment.


Defendant's motion is flawed in two fundamental respects. First, it rests on an unsupportable


reading of Rule 16 which, if adopted by the Court, would to a large extent substitute open file


discovery for Rule 16, a proposition that has been repeatedly rejected by the courts. Second, it is


premised on relevance arguments which overlook the fact that defendant is charged with perjury, not


a conspiracy to commit various other crimes. When viewed against the correct legal standards for


discovery and in the context of the crimes charged in the indictment, defendant's motion for


miscellaneous additional discovery should be denied for the reasons set forth more fully below.


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3


I. Applicable Legal Standards


The Supreme Court long ago established, and has continued to hold, that discovery in


criminal cases is not unlimited and does not sweep in everything known to the government and


uncovered during the investigation. United States v. Agurs, 427 U.S. 97, 109 (1975) (no


constitutional duty to "allow complete discovery of . . . files as a matter of routine practice"); United


States v. Bagley, 473 U.S. 667, 675 (1985) ("the prosecutor is not required to deliver his entire file


to defense counsel"); Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Ruiz, 536


U. S. 622, 630 (2002); see also United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003) (no


right to unsupervised search through the government's files). Nor does Federal Rule of Criminal


Procedure 16 authorize general access to the government's investigation file; rather, Rule 16(a)(1)(E)


is limited to discovery of records "material to preparing the defense." Fed. R. Crim. P. 16(a)(1)(E).


Rule 16 requires disclosure only of evidence that "enables the defendant significantly to alter the


quantum of proof in his favor." 3/10/06 Mem. Op. at 8 (citing United States v. Marshall, 132 F.3d


63, 68 (D.C. Cir. 1998)). An "abstract logical relationship to the issues in the case" is insufficient.


3/10/06 Mem. Op. at 8; Jordan, 316 F.3d at 1251 (citing United States v. Buckley, 586 F.2d 498, 506


(5th Cir. 1978)). And where classified information is sought, the defendant must also show that the


classified information "is at least helpful to the defense." 3/10/06 Mem. Op. at 9 (citing United


States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989)).


In United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court provided specific


instruction as to what records are "material to preparing the defense" - that term means "the


defendant's response to the Government's case in chief." Id. at 462. Thus, the parameters of Rule


16 discovery are set by the indictment. United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991)


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 3 of 39


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(cited by 3/10/06 Mem. Op. at 8). Accordingly, there is no general Rule 16 right to broadly fish


through the government's investigative file simply because the defendant makes a "conclusory


allegation" of materiality. United States v. Cadet, 727 F.2d 1453, 1466 (9th Cir. 1984) (citing


United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970)); see Jordan, 316 F.3d at 1251; United


States v. Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir. 1989); see also Moore v. Illinois, 408 U.S.


786, 795 (1972) ("We know of no constitutional requirement that the prosecution make a complete


and detailed accounting to the defense of all police investigatory work on a case."); United States


v. Heidecke, 683 F.Supp. 1211, 1214 (N.D. Ill. 1988) (rejecting discovery request under Brady for


"all files reviewed by the investigators").


Nor is the defendant permitted to invoke Rule 16 to generally rummage through the files of


other federal agencies. United States v. Labovitz, 1997 WL 289732, at *4 (D. Mass. May 30, 1997)


(rejecting a Rule 16 "broad fishing expedition" of FDIC's files concerning the victim-bank in bank


fraud prosecution). Such casting about in the files of other government agencies simply has no basis:


defendant cannot require "an affirmative government-wide search for possibly exculpatory evidence"


or for "'any materials that might conceivably be useful to his defense.'" United States v. Poindexter,


727 F. Supp. 1470, 1485 (D.D.C. 1989) (quoting United States v. North, 1988 WL 148527 (D.D.C.


July 13, 1988)).


Thus, defendant is wrong to suggest that Rule 16 grants him the right to review all of the


documents that the government reviewed during its investigation. Def.'s Mem. at 2 ("Presumably,


the government reviewed these documents during its investigation to identify useful witnesses or


documents and to determine whether the testimony of witnesses was truthful. Rule 16 gives the


defense the right to use these documents for precisely the same purposes."). Putting aside the fact


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 4 of 39


5


that the government did not review all the myriad documents defendant now requests, there is no


authority for the proposition - and defendant cites none - that Rule 16 allows the defense to look


through every document the government examined. To the contrary, documents are "material to


preparing the defense" under Rule 16 only if the documents are specifically part of the "the


defendant's response to the Government's case in chief" as delimited by the charges, Armstrong, 517


U.S. at 462, not simply because the government at some point reviewed the record during the


investigation. Allowing defendant to attempt to replicate the government's investigation is


particularly inappropriate because the government's investigation was far broader in scope than the


charges ultimately brought in the indictment.


Thus, in analyzing whether the documents sought in defendant's latest request for discovery


are "material to the preparation of the defense" and disclosable under Rule 16(a)(1)(E), the Court


should follow the analytical process set out in its March 10, 2006 Memorandum Opinion: examine


the defendant's request in light of the allegations in the indictment, and assess whether "there is a


strong indication that [the material sought] will play an important role in uncovering admissible


evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal,"


United States v. Lloyd, 992 F.2d at 351 - recognizing also that when the defense seeks classified


information it is held to the additional burden of demonstrating that the classified information is


"helpful to the defense," United States v. Yunis, 867 F.2d at 623. 3/10/06 Mem. Op. at 8-9.


Against the backdrop of the limited charges in this indictment - that defendant lied to the


grand jury and the Federal Bureau of Investigation about his acquisition and disclosures to the media


of information concerning Valerie Plame Wilson's employment by the Central Intelligence Agency


- defendant's latest discovery requests fail this test.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 5 of 39


Although defendant includes the documents in this category in his list of documents that 1


would aid in preparing witness examinations he makes no specific argument as to why these


documents would be helpful in that regard, and does not identify which witness or witnesses they


would assist in examining.


6


II. Analysis


A. The Requested Documents Are Not Discoverable on the Ground that They


Would Be Helpful in Preparing to Examine Potential Witnesses.


Defendant argues that he is entitled to the following materials on the ground that they are


material to the preparation of his defense in that they would aid in preparing to examine or crossexamine


potential trial witnesses:


1. All documents and information generated or received by the State Department, the


CIA, the Executive Office of the President and/or the National Security Council


("NSC")" concerning former Ambassador Joseph Wilson's trip to Niger, and any


involvement in that trip by his wife, including


a. the origins of Mr. Wilson's trip to Niger, including any role played by Ms.


Wilson in connection with the trip;


b. reports about the trip; and


c. subsequent discussion, comment or analysis concerning the trip, including


government documents concerning the trip and/or Ms. Wilson's role in it that


were generated after May 6, 2003, when the controversy surrounding the


disputed sixteen words erupted.


2. All documents or communications reflecting any possible attempt or plan by any


government official to punish or seek revenge against Mr. Wilson or Ms. Wilson.


3. All documents reflecting Mr. Wilson's communications with officials at the State


Department or other government agencies concerning his trip to Niger or the "sixteen


words."1


4. Any notes from the September 2003 meeting in the Situation Room at which Colin


Powell is reported to have said that (1) everyone knows that Mr. Wilson's wife


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 6 of 39


Defendant's argument with respect to this category of documents is limited to the 2


preparation of an examination of former Secretary of State Powell. See, infra, at 14.


Defendant's requests as listed in his Third Motion to Compel do not track the precise 3


language of the document requests made to the government by letter.


7


worked at the CIA and that (b) it was Mr. Wilson's wife who suggested that the CIA


send her husband on a mission to Niger."2


Memo. at 14-16, 23. The government has produced to defendant all documents related to Mr. 3


Wilson's trip that it received from the OVP. In addition, the government has produced to defendant


documents, received from any source, relating to conversations, correspondence, or meetings


involving defendant in which Mr. Wilson's trip was discussed, and has produced additional materials


from the CIA and the State Department relating generally to Mr. Wilson's trip. The government


declined to produce some documents related to Mr. Wilson's trip on that the ground that those


documents were completely irrelevant to defendant's knowledge or communications regarding Mr.


Wilson, Ms. Wilson, or Mr. Wilson's trip to Niger. The government is unaware of any documents


reflecting communications between Mr. Wilson and the State Department regarding the "sixteen


words" other than media reports and material that would fall within the Jencks Act if the government


were to call Mr. Wilson as a witness.


Some documents produced to defendant could be characterized as reflecting a plan to


discredit, punish, or seek revenge against Mr. Wilson. The government declined to produce


documents relating solely to other subjects of the investigation, even if such documents could be so


characterized as reflecting a possible attempt or plan to discredit or punish Mr. Wilson or Ms.


Wilson. The government has no knowledge of the existence of any notes reflecting comments by


former Secretary of State Powell regarding Ms. Wilson during a September 2003 meeting.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 7 of 39


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Defendant overreaches when he asserts that Rule 16 generally requires the production of all


materials that may be helpful in preparing to examine witnesses. The bulk of the documents that


defendant seeks to assist in preparing witness examinations (here correspondence, e-mails, and


reports generated by potential witnesses and those around them) fall within the category of witness


statements and arguable impeachment information covered by the Jencks Act and Giglio. If


defendant's position were correct, the Jencks Act, Rule 26.2, and Giglio obligations would be


unnecessary and redundant because all such material - and far more - would have been disclosed


pursuant to Rule 16. To the contrary, Rule 16(a)(2) expressly prohibits the use of Rule 16 as an endrun


around the Jencks Act: "Nor does this rule authorize the discovery or inspection of statements


made by prospective government witnesses except as provided in 18 U.S.C. ? 3500." Fed. R. Crim.


P. 16(a)(2). Furthermore, the defendant cannot simply recite that access to statements will


"enhance[] defense counsels' ability to cross-examine" a witness as a basis for using Rule 16 to


disregard the Jencks Act. United States v. Tarantino, 846 F.2d 1384, 1414-15 (D.C. Cir. 1988).


To be sure, Brady and Giglio may require disclosure of material beyond that required by Rule


16, but an argument that those cases up-end the normal timing of Jencks Act production is "an


attempt to convert Brady into a broad rule of discovery in criminal cases." Tarantino, 846 F.2d at


1416; see also United States v. Hart, 760 F. Supp. 653, 659 (E.D. Mich. 1991) (timing of disclosure,


if required, is based on defense's ability to make effective use of information at trial). That is


particularly true where the defendant seeks statements from one witness that will purportedly be at


odds with the statement of another witness: "witnesses are not impeached by prior inconsistent


statements of other witnesses, but by their own prior inconsistent statements." Id. (emphasis in


original). At bottom, Rule 16 also does not constitute a free-floating tool to cast about for


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 8 of 39


Defendant indicates that the "CIA briefer" described in paragraph 11 of the indictment 4


may be Craig Schmall, Peter Clement, or Matt Barrett.


Defendant indicates that the "senior CIA official" described in paragraph 7 of the 5


indictment may be Robert Grenier or John McLaughlin.


9


impeachment material on potential witnesses; rather, there must be a "strong" indication that the


material will play an "important" role in assisting impeachment. Marshall, 132 F.3d at 68.


Potential Government Witnesses


Defendant contends that the foregoing documents are discoverable because they are necessary


to prepare to examine the following potential government witnesses in this case:


(a) former CIA Director George Tenet;


(b) CIA briefer Craig Schmall; 4


(c) former senior CIA official Bob Grenier; 5


(d) former Under Secretary of State Marc Grossman;


(e) former White House Press Secretary Ari Fleischer;


(f) former Deputy National Security Advisor Stephen Hadley; and


(g) current White House Deputy Chief of Staff Karl Rove.


Because the government does not intend at this time to call three of these individuals - Mr.


Tenet, Mr. Hadley, and Mr. Rove - defendant is not entitled to discovery based on the need to


prepare to cross-examine those individuals.


With respect to the individuals whom the government does intend to call as witnesses, the


documents defendant demands go well beyond anything that would be necessary to prepare to


examine these individuals, and indeed, far beyond the scope of what is relevant to the charges


contained in the indictment. Defendant demands the production of all "documents and information"


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 9 of 39


References to defendant's Third Motion to Compel are to "Memo.," followed by the 6


relevant page number. Defendant states that documents that relate to Mr. Wilson's trip form the


"core" of the discovery at issue in this motion. Memo. at 12. References to the exhibits to


defendant's motion are to "Memo. Exhibit," followed by the exhibit number.


References to the Indictment are to "Indict.," followed by the relevant count and paragraph 7


number.


10


generated or received by anyone in the State Department, the CIA, the Executive Office of the


President and/or the National Security Council ("NSC") concerning Mr. Wilson's trip to Niger,6


which includes "the origins of Mr. Wilson's trip to Niger, including any role played by Ms. Wilson


in connection with the trip," "any reports about the trip," and any "subsequent discussion, comment


or analysis concerning the trip." Memo. at 14-16. Defendant seeks the requested materials without


regard to whether defendant or any prospective witness actually wrote, reviewed, or even saw the


materials, and without regard to whether any prospective witness is expect to testify about them.


For example, defendant makes a sweeping demand for State Department documents


regarding Mr. Wilson's trip, despite the fact that, as is evident from the indictment, the testimony


of the government's lone State Department witness, Under Secretary of State for Political Affairs


Marc Grossman, will focus on conversations between Mr. Grossman and defendant in late May and


early June 2003 concerning former Ambassador Wilson's trip, and Mr. Grossman's efforts during


that period to gather information regarding the trip in response to defendant's inquiries. See Indict.,


Count One, ?? 4, 5, 6. As a result of defendant's inquiries, information was gathered and a 7


classified report was prepared by the State Department's Bureau of Intelligence and Research ("the


INR report"). In June 2003, Mr. Grossman orally advised defendant that he had learned that


Wilson's wife worked at the CIA and that State Department personnel believed that Mr. Wilson's


wife was involved in the planning of Mr. Wilson's trip. See Indict., Count One, ? 6.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 10 of 39


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Defendant has been provided with a copy of the INR report in classified discovery, and the


government understands that no contemporaneous reports written by Mr. Grossman about his


conversations with defendant in May and June 2003 are available. Prior to trial, defendant will be


provided with prior statements of Mr. Grossman as part of the government's Jencks Act disclosure,


as well as any material required under Giglio.


The central issue at trial will be whether defendant lied when he testified that he was not


aware that Mr. Wilson's wife worked at the CIA prior to his purported conversation with Tim


Russert about Mr. Wilson's wife on or about July 10, 2003. See Indict., Count One, ? 20. Mr.


Grossman's testimony is specifically relevant to show that defendant was told of Ms. Wilson's


employment and possible role in planning Mr. Wilson's trip to Niger in early June 2003. This


testimony will not be offered to prove the truth of the matter asserted; indeed, it is irrelevant whether


Mr. Wilson's wife actually did work at the CIA or actually did play a role in arranging the trip, or


how State Department employees viewed the results of the Wilson trip. Likewise, none of these


issues are relevant to preparing for Mr. Grossman's examination.


Defendant makes the same sweeping demand for CIA and White House documents related


to Mr. Wilson's trip, although, once again, the anticipated testimony of the government's CIA


witnesses, Craig Schmall, a CIA briefer, and Robert Grenier, a former senior CIA official, and the


testimony of the government's sole White House witness, Ari Fleischer, will focus on conversations


with defendant regarding Ms. Wilson which took place in June and early July 2003. See Indict.,


Count One, at ?? 7, 11, 16. All known documents relating to these conversations have been provided


to defendant. The relevance of this testimony, like that of Marc Grossman, is to show that defendant


knew about Ms. Wilson's employment and possible role in planning Mr. Wilson's trip to Niger as


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 11 of 39


12


early as June 2003, and no later than July 7, 2003. Neither the particulars of Mr. Wilson's trip, nor


the views of CIA or White House officials regarding the results of the trip, are relevant to, or


necessary for preparing cross-examinations of, Messrs. Schmall, Grenier, or Fleischer. Nor is


defendant entitled to expansive discovery on the basis of speculations that government officials may


have been biased as a result of purported disputes among the various agencies concerning


intelligence issues.


With respect to Mr. Fleischer, defendant also asserts that press reports indicate that Mr.


Fleischer reviewed a report containing information related to Mr. Wilson's wife that was sent to


former Secretary of State Colin Powell while Secretary Powell, Mr. Fleischer and others were en


route to Africa on Air Force One. Memo. at 25. If the press reports are correct, and if Mr. Fleischer


disclosed information concerning Mr. Wilson's wife to reporters, defendant argues, then Mr.


Fleischer would have a motive to shade his testimony in this case. Id. The government has provided


defendant with a copy of the report in question. Defendant does not claim that Mr. Fleischer wrote,


reviewed, or even saw any other documents concerning Mr. Wilson's trip, and does not establish any


other connection between Mr. Fleischer and any of the requested documents. Thus, there is no


support for defendant's claim that the requested documents would be helpful to defendant in


preparing to cross-examine Mr. Fleischer.


Potential Defense Witnesses


Defendant further argues that he is entitled to discovery of all documents that would be


helpful in preparing to examine witnesses that may be called as defense witnesses at trial, including


the following individuals: (a) former Deputy Secretary of State Richard Armitage; (b) former


Secretary of State Colin Powell; (c) former CIA Director George Tenet; (d) "other current or former


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 12 of 39


13


CIA officials, including" Bill Harlow; and (e) Senior White House advisor Karl Rove. Defendant


cites, and research reveals, no authority for the proposition that the defendant is entitled to discover


all documents related to witnesses whom defendant anticipates calling as witnesses at trial. To the


contrary, it is settled law that the government has no obligation to produce prior statements, or


information reflecting negatively on the credibility, of witnesses called by the defense, much less


witnesses who may be called by the defense. See 18 U.S.C. ? 3500 (which by its terms applies only


to witnesses called by the government) and United States v. Presser, 844 F.2d 1275, 1285 (6th Cir.


1988)("the government need not disclose impeaching material in its possession relating to any


potential defense witness where that impeaching material does not meet the Brady test of being


material and exculpatory"); and United States v. Souffront, 338 F.3d 809, 824 (7 Cir. 2003) (When th


ATF Agent was called by defense to impeach a government witness and to testify to defendant's


state of mind, no Brady violation occurred when government did not disclose that agent was accused


by a former agent of participating in or covering up theft of jewelry and money by corrupt cop.


"Impeaching the testimony of their own witness is not favorable to the defense . . . and does not raise


the probability of a different verdict . . . This argument is without merit." (citations omitted)).


Given the limited nature of any admissible testimony that could be offered by the above


individuals, the need to prepare their testimony could not possibly justify defendant's expansive


discovery demands in any event. For example, defendant asserts that he may call former Deputy


Secretary of State Richard Armitage as a defense witness for the purpose of testifying regarding "the


expected testimony of his former colleagues, Mr. Grossman and Mr. Powell," Memo. at 23, n. 5


and, specifically, of establishing bias on the part of Under Secretary Grossman, Memo. at 23.


Defendant argues that "[i]f Mr. Armitage or another State Department official was in fact the


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 13 of 39


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primary source for Mr. Novak's article, Mr. Grossman's testimony may be colored by either by his


personal relationship with Mr. Armitage or his concern for the institutional interests of the State


Department." Id.


There is no precedent for a fact witness to be called to testify about the expected testimony


of another fact witness - much less precedent that an intention to do so entitles a defendant to


additional discovery. Putting aside defendant's failure to explain how loyalty to Mr. Armitage or


to the State Department could rise to the level of causing Mr. Grossman to invent conversations with


defendant and testify to them under oath, defendant has provided no connection between the


requested materials and Messrs. Grossman, Armitage or Powell, and no basis for concluding that the


materials would aid him in preparing to establishing bias on the part of Mr. Grossman.


Similarly, defendant is not entitled to discovery of additional documents regarding Mr.


Wilson's trip in order to prepare to examine former Secretary of State Colin Powell as a defense


witness. Defendant asserts that he is "entitled to examine Secretary Powell regarding his knowledge


of Mr. Wilson's trip to Niger and his communications with other government officials about that


trip," and that the State Department records concerning the trip will assist him in preparing to


conduct this inquiry. Memo. at 24. Defendant fails, however, to establish how Secretary Powell's


knowledge concerning Mr. Wilson's trip could be relevant to the perjury and false statement charges


contained in the indictment, or his defense to those charges.


Nor has defendant established how "[a]ny notes from the September 2003 meeting in the


Situation Room at which Colin Powell is reported to have said that (1) everyone knows that Mr.


Wilson's wife worked at the CIA and that (b) it was Mr. Wilson's wife who suggested that the CIA


send her husband on a mission to Niger" (see Memo. at 15) would be helpful to defendant in


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15


preparing his defense, even if such documents existed, and it is the understanding of the government


that there are no notes indicating that Secretary Powell made the purported statements.


Additionally, defendant asserts that he plans to question Secretary Powell concerning media


reports regarding a document containing information regarding Ms. Wilson sent to Secretary Powell


on Air Force One while Secretary Powell and others were en route to Africa between July 7 and July


12, 2003, and regarding the possibility that other government officials may have shared information


about Ms. Wilson with journalists while in Africa. Memo. at 24. Defendant fails to establish that


any documents other than that sent to Secretary Powell (which has been produced to defendant)


would be useful in preparing to examine Secretary Powell, or even that the topics concerning which


he plans to question Secretary Powell have any relevance to the issues of this case. Accordingly,


defendant's desire to question Secretary Powell does not entitle him to additional discovery.


Defendant claims that Karl Rove will be a "key witness" in the trial, in that he will testify


concerning a conversation with defendant on July 10 or 11, 2003 regarding Robert Novak's intent


to print a story regarding Ms. Wilson's employment at the CIA, Indict., Count One, ? 21, and that


Stephen Hadley may "offer important testimony about discussions within the Administration


concerning the need to rebut Mr. Wilson's statements about his trip and his conclusions," as well


as "discussions about the need to declassify and disseminate the NIE" and George Tenet's public


statements regarding the "sixteen words." Memo. at 25-26. As indicated above, the government


does not intend to call Mr. Rove or Mr. Hadley as witnesses at this time.


Nor has defendant established any connection between the documents defendant has


demanded and any relevant testimony Mr. Rove or Mr. Hadley could provide. The trial in this case


necessarily will focus on whether or not defendant committed perjury. While defendant may prefer


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 15 of 39


16


to put the conduct of others on trial, he is not entitled to do so. Nor is defendant entitled to discovery


so that he may examine witnesses at trial regarding their conduct and the conduct of others that is


not germane to the issue of whether defendant lied and obstructed justice.


Agencies By Which Potential Witnesses Are or Were Employed


The extraordinary scope of defendant's request for documents is illustrated by the fact that


the request is not limited to documents directly connected with the individuals he has identified as


potential witnesses, or even by time frame. To the contrary, defendant argues that he is entitled to


"all CIA documents that concern (sic) Mr. Wilson's trip to Niger, including reports and subsequent


discussions of it," and, at the very least, all documents concerning Mr. Wilson's trip "generated, sent,


or received by CIA witnesses.' Similarly, defendant argues that, "the government's disclosure


obligations are not limited to the files of [the] particular White House witnesses" that defendant has


identified, but rather, extends to "all White House documents relating to Mr. Wilson's trip to Niger


that could undermine or corroborate the expected testimony of these witnesses, and other White


House documents that could be used to develop lines of questioning for their examinations at trial."


Thus, in essence, defendant contends that the expected testimony of a witness triggers open


file discovery of that witnesses' agency on any related topic, whether or not relevant at trial.


Defendant cites no legal authority in support of this claim, which flies in the face of the longestablished


limited nature of discovery in criminal cases, see United States v. Agurs, 427 U.S. at 109,


United States v. Jordan, 316 F.3d at 1251.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 16 of 39


17


B. Defendant is Not Entitled to Discovery of the Requested Documents on the Basis


that Such Documents Will Allow Him to Provide "Context" for Events Alleged


in the Indictment.


Defendant argues as an alternative ground for his discovery requests the need to establish


"context" for matters alleged in the indictment. Defendant claims that, in order to put the alleged


events in context, and specifically to establish that Ms. Wilson played a "peripheral" rather than an


important role in the controversy concerning the "sixteen words," defendant is entitled to discovery


of the above-described documents as well as to:


All documents reflecting discussions within the government of whether to release a public


statement during the week of July 7, 2003 regarding the inclusion of the "sixteen words" in


the 2003 State of the Union Address, including all drafts of the July 11, 2003 statement


issued by Director of Central Intelligence George Tenet.


Memo. at 15, 27.


The government has produced to defendant all documents responsive to the above request


that were received from the Office of the Vice President, including notes of defendant and drafts of


the July 11, 2003 statement issued by CIA Director George Tenet. The government declined to seek


copies or produce additional drafts of the July 11, 2003 statement maintained by other agencies on


the ground that such documents would be irrelevant in the absence of any connection to defendant,


and also potentially duplicative of documents already produced.


In an attempt to recast the relevant issues at trial, defendant claims he is entitled to correct


the "distorted picture of the relevant events" presented in the indictment, including the


"exaggerati[on of] the importance government officials, including [defendant], attributed to Ms.


Wilson's employment status prior to July 14, 2003," and to present "a more complete and accurate


narrative" of the alleged events, and to establish that defendant "and other government officials"


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 17 of 39


18


viewed Ms. Wilson's identity as at most a "peripheral issue." Memo. at 27. Defendant argues that


information regarding bureaucratic infighting over responsibility for the "sixteen words" will help


the jury appreciate how defendant "may have forgotten or misremembered the snippets of


conversation the government alleges were so memorable." Memo. at 3-4.


Though he might wish otherwise, this trial is not about the conduct or state of mind of


persons other than defendant. Indeed, the state of mind of other individuals is of negligible value


in determining whether defendant lied to the FBI and grand jury. In reality, it does not matter


whether Ms. Wilson's role was thought to be important or peripheral by anyone other than defendant


and the discrete number of persons with and for whom he worked. Accordingly, it is clear that


documents from outside the OVP are not sought to establish "context" but rather to provide an


irrelevant distraction from the issues of the case.


Moreover, evidence from the CIA, State Department, and NSC about whether persons


working there thought the issue of Ms. Wilson's employment was "peripheral" will not place in


context the state of mind of defendant and others working in the Office of Vice President at the


relevant time, nor explain whether defendant was likely to have forgotten conversations about the


topic in which he participated. In June 2003, when discussing Ambassador Wilson's trip to Niger,


the Vice President advised defendant that Ambassador Wilson's wife worked at the CIA in the


Counterproliferation Division. Indict., Count One, ? 9. The evidence will show that the July 6,


2003, Op Ed by Mr. Wilson was viewed in the Office of Vice President as a direct attack on the


credibility of the Vice President (and the President) on a matter of signal importance: the rationale


for the war in Iraq. Defendant undertook vigorous efforts to rebut this attack during the week


following July 7, 2003.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 18 of 39


19


At some point after the publication of the July 6, 2003 Op Ed by Mr. Wilson, Vice President


Cheney, defendant's immediate superior, expressed concerns to defendant regarding whether Mr.


Wilson's trip was legitimate or whether it was in effect a junket set up by Mr. Wilson's wife. And,


in considering "context," there was press reporting that the Vice President had dispatched Mr.


Wilson on the trip (which in fact was not accurate). Disclosing 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, while at the same time undercutting Mr. Wilson's credibility if Mr. Wilson


were perceived to have received the assignment on account of nepotism. The context for defendant's


disclosures in the course of defending the Office of the Vice President will not be fleshed out in any


files of CIA or State Department or NSC employees that might reflect what they thought. Put


slightly differently, the thoughts and impressions of CIA, State Department, and NSC employees,


absent any evidence that these thoughts and impressions were conveyed to defendant, simply cannot


shed light on defendant's state of mind at the time of his alleged criminal conduct. See United States


v. Secord, 726 F.Supp. 845, 848-49 (D.D.C. 1989) ("The subjective state of mind which Defendant


Secord wishes to prove could have arisen solely from conversations in which he participated,


correspondence which he himself read, meetings which he himself attended. . . . The point is simply


that Defendant's state of mind can come only from what he hears or sees. Defendant is entitled to


discover materials which evidence his personal knowledge about or belief in the legality of the


Enterprise.").


Nor would such documents of the CIA, NSC and the State Department place in context the


importance of the conversations in which defendant participated. Defendant's participation in a


critical conversation with Judith Miller on July 8 (discussed further below) occurred only after the


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 19 of 39


20


Vice President advised defendant that the President specifically had authorized defendant to disclose


certain information in the NIE. Defendant testified that the circumstances of his conversation with


reporter Miller - getting approval from the President through the Vice President to discuss material


that would be classified but for that approval - were unique in his recollection. Defendant further


testified that on July 12, 2003, he was specifically directed by the Vice President to speak to the


press in place of Cathie Martin (then the communications person for the Vice President) regarding


the NIE and Wilson. Defendant was instructed to provide what was for him an extremely rare "on


the record" statement, and to provide "background" and "deep background" statements, and to


provide information contained in a document defendant understood to be the cable authored by Mr.


Wilson. During the conversations that followed on July 12, defendant discussed Ms. Wilson's


employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time).


Even if someone else in some other agency thought that the controversy about Mr. Wilson and/or


his wife was a trifle, that person's state of mind would be irrelevant to the importance and focus


defendant placed on the matter and the importance he attached to the surrounding conversations he


was directed to engage in by the Vice President.


Likewise, documents from other agencies that defendant never saw will not provide context


for defendant's grand jury testimony regarding these events. Defendant testified that he did not


discuss the CIA employment of Ambassador Wilson's wife with reporter Judith Miller on July 8,


2003 and that he could not have done so because he had forgotten by that time that he had learned


about Ms. Wilson's CIA employment a month earlier from the Vice President. Nor could such


documents explain defendant's testimony disclaiming having discussed Ms. Wilson's employment


with various other government officials prior to July 10, 2003, or his testimony that he was "taken


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 20 of 39


21


aback" when journalist Tim Russert asked about Ms. Wilson's employment with the CIA on July


12, 2003. Accordingly, none of the documents requested by defendant could possibly support the


defense that the specific perjury specifications are mere "snippets" of conversation he "may have


misremembered."


C. Defendant is Not Entitled to the Requested Documents Related to the NIE.


Defendant further contends that he is entitled to additional discovery because the government


"informed [the defense] that it seeks to make an issue at trial of [defendant's] alleged disclosures


of a portion of the content of the October 2002 National Intelligence Estimate on Iraq's Continuing


Programs for Weapons of Mass Destruction, known as the NIE." Memo. at 10-11 (emphasis added).


Specifically, defendant claims that, in order to place this issue in "context," he is entitled to


discovery of:


1. All documents relating to the possible declassification of the 2002 National


Intelligence Estimate ("NIE")(in whole or in part); and


2. All documents relating to or reflecting public comments by government officials


about the NIE or its contents prior to July 18, 2003.


The government has produced to defendant all documents received from the OVP, which


would include any documents responsive to these requests, and is in the process of locating and


producing a limited number of additional responsive documents in the possession of the Special


Counsel although such documents were not authored or reviewed by defendant. The government


has declined to seek or produce additional responsive documents from other agencies unless such


documents reflect conversations and meetings in which defendant participated, on the ground that


such documents would be irrelevant to the defense. The government has also declined to produce


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 21 of 39


22


publicly available comments by government officials regarding this issue on the ground that they are


equally accessible to defendant.


As an initial matter, it is defendant's conduct and testimony, rather than any whim of the


government, that makes defendant's disclosure of the NIE an issue in this case. However, contrary


to defendant's contention, he is not entitled to rummage through other agencies' documents


concerning the NIE where defendant himself has testified that he understood that no one at those


agencies was aware of, or involved in, the declassification made known to him by the Vice President


or the disclosures he made to reporters Cooper and Miller.


The Relevance of the NIE to This Case


One of the key conversations that will be proved at trial took place between defendant and


reporter Judith Miller at the St. Regis Hotel on the morning of July 8, 2003. Defendant testified in


the grand jury that he and Miller did not discuss the CIA employment of Ambassador Wilson's wife,


Valerie Plame, on that occasion, and that he could not have done so because he had forgotten by that


time that he had learned about Ms. Wilson's employment a month earlier from the Vice President.


Defendant further testified that when he spoke with reporter Tim Russert the following day, Russert


informed him that Wilson's wife worked at the CIA, and defendant was "taken aback." Defendant


testified that he thought that the information was new to him, and that he made sure not to confirm


the information to Russert. Defendant thereafter testified that he repeated what he learned from


Russert to other reporters (including Cooper and Miller) on July 12, taking care to caution those


reporters that he did not know if the information were true or even if Ambassador Wilson even had


a wife.


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 22 of 39


23


As to the meeting on July 8, defendant testified that he was specifically authorized in advance


of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because


it was thought that the NIE was "pretty definitive" against what Ambassador Wilson had said and


that the Vice President thought that it was "very important" for the key judgments of the NIE to


come out. Defendant further testified that he at first advised the Vice President that he could not


have this conversation with reporter Miller because of the classified nature of the NIE. Defendant


testified that the Vice President later advised him that the President had authorized defendant to


disclose the relevant portions of the NIE. Defendant testified that he also spoke to David Addington,


then Counsel to the Vice President, whom defendant considered to be an expert in national security


law, and Mr. Addington opined that Presidential authorization to publicly disclose a document


amounted to a declassification of the document.


Defendant testified that he thought he brought a brief abstract of the NIE's key judgments


to the meeting with Miller on July 8. Defendant understood that he was to tell Miller, among other


things, that a key judgment of the NIE held that Iraq was "vigorously trying to procure" uranium.


Defendant testified that this July 8th meeting was the only time he recalled in his government


experience when he disclosed a document to a reporter that was effectively declassified by virtue of


the President's authorization that it be disclosed. Defendant testified that one of the reasons why he


met with Miller at a hotel was the fact that he was sharing this information with Miller exclusively.


In fact, on July 8, defendant spoke with Miller about Mr. Wilson after requesting that


attribution of his remarks be changed to "former Hill staffer." Defendant discussed with Miller the


contents of a then classified CIA report which defendant characterized to Miller as having been


written by Wilson. Defendant advised Miller that Wilson had reported that he had learned that in


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 23 of 39


24


1999 an Iraqi delegation visited Niger and sought to expand commercial relations, which was


understood to be a reference to a desire to obtain uranium. Later during the discussion about Wilson


and the NIE, defendant advised Miller of his belief that Wilson's wife worked at the CIA. Indict.,


Count One, ? 17.


Defendant understood that the Vice President specifically selected him to talk to the press


about the NIE and Mr. Wilson on July 12, 2003, in place of then-Assistant to the President for Public


Affairs, Cathie Martin, the usual press contact person from OVP. This is relevant to show the


importance that defendant and his boss placed on the conversation concerning which he later


testified. During his conversations with the press that day, defendant discussed Ms. Wilson's CIA


employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time).


Thus, there is no way to present the relevant events concerning defendant's discussions with


reporters about Ms. Wilson without discussing defendant's role in disseminating the key judgments


of the NIE in those same conversations.


There is no basis for extending disclosure of documents related to the declassification and


disclosure of the NIE to documents from the NSC, State Department, CIA, or any other agency.


According to defendant, at the time of his conversations with Miller and Cooper, he understood that


only three people - the President, the Vice President and defendant - knew that the key judgments


of the NIE had been declassified. Defendant testified in the grand jury that he understood that even


in the days following his conversation with Ms. Miller, other key officials - including Cabinet level


officials - were not made aware of the earlier declassification even as those officials were pressed


to carry out a declassification of the NIE, the report about Wilson's trip and another classified


document dated January 24, 2003. Given that, there is no reasonable possibility that the requested


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 24 of 39


As part of his effort to justify in essence "open file" discovery concerning the NIE, 8


defendant notes that "Mr. Hadley was active in discussions about the need to declassify and


disseminate the NIE . . . ." Defendant fails to mention, however, that he consciously decided not to


make Mr. Hadley aware of the fact that defendant himself had already been disseminating the NIE


by leaking it to reporters while Mr. Hadley sought to get it formally declassified. There is no reason


to root around in the files of the NSC or CIA or State Department given that no one at any of those


three agencies was aware of any declassification of the NIE prior to July 18, 2003. Since Mr. Hadley


was involved in efforts to declassify what Mr. Libby testified had already been declassified, Mr.


Hadley's files will create confusion rather than providing context. The government is producing to


defendant Mr. Hadley's notes of meetings and conversations in which both defendant and Mr.


Hadley participated, and in which the potential declassification of the NIE was discussed.


25


documents from agencies outside the Office of Vice President will shed any light on, or provide any


"context" for, what defendant knew, thought and did at the time of his critical conversations.8


D. Defendant is Not Entitled to the Requested Documents for Purposes of


Attempting to Establish that He Had No Motive to Lie.


Defendant also seeks discovery on the theory that the defense "has the right to make an


affirmative showing that [he] had no motive to lie to the FBI or the grand jury." Memo. at 4.


Specifically, defendant argues that: (i) he did not believe Ms. Wilson's employment status was


classified; (ii) he was not "part of a conspiracy to harm Mr. Wilson by disclosing his wife's CIA


affiliation"; and (iii) he did not believe anyone who worked closely with him had done anything


wrong. Purportedly for these purposes, defendant seeks:


1. All documents or communications reflecting any possible attempt or plan by any


government official to punish or seek revenge against Mr. Wilson or Ms. Wilson; and


2. All documents or information concerning the identity of any government official


outside the CIA who was aware prior to July 14, 2003 that Ms. Wilson worked for


the CIA.


As indicated above, while some documents produced to defendant could be characterized as


reflecting a plan to discredit, punish, or seek revenge against Mr. Wilson, the government declined


to produce documents relating solely to other subjects of the investigation. The government has


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 25 of 39


As discussed above, the government has not produced to defendant documents that relate 9


to the conduct of other subjects of the grand jury investigation unless there is some connection


between the document or its contents to defendant.


26


identified to the defense individuals outside the intelligence community who were aware prior to July


14, 2003 of Ms. Wilson's CIA employment. However, the government has declined to identify to


the defense, or produce documents concerning, some government officials on the grounds that (a)


such officials are either subjects of the ongoing grand jury investigation or "innocent accused" whose


identities are protected from disclosure by Fed. Crim. P. 6(e), as this Court has held; and (b) such


materials are irrelevant to any issue in the case.


Defendant is not charged with knowingly disclosing classified information, nor is he charged


with any conspiracy offense. Moreover, as a practical matter, there are no documents showing an


absence of a plot, and it is unclear how any document custodian would set out to find documents


showing an "absence of a plot." Indeed, there exist documents, some of which have been provided


to defendant, and there were conversations in which defendant participated, that reveal a strong 9


desire by many, including multiple people in the White House, to repudiate Mr. Wilson before and


after July 14, 2003.


Defendant's request for discovery to show an absence of motive to lie or conceal his conduct


overlooks the fact that even the materials defendant appended to his motion show that in early


October 2003 (when defendant first gave his story) there would be great embarrassment to the


administration if it became publicly known that defendant had participated in disseminating


information about Ms. Wilson's CIA employment, and defendant would have had every reason to


assume he would be fired if his true actions became known. Then National Security Adviser Dr.


Condoleeza Rice publicly stated that she knew "nothing of any such White House effort to reveal


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 26 of 39


27


any of this, and it would certainly not be the way the president would expect his White House to


operate." Memo. Exhibit M.


On September 29, 2003, the Washington Post reported that "two White House officials


leaked the information to selected journalists to discredit Wilson." (Washington Post, "Bush Aides


Say They'll Cooperate With Probe Into Intelligence Leak," by Mike Allen, September 29, 2003).


Also on September 29, 2003, White House Press Secretary McClellan stated that:


There are anonymous reports all the time in the media. The President has set high standards,


the highest of standards, for people in his administration. He's made it very clear to people


in his administration that he expects them to adhere to the highest standards of conduct. If


anyone in this administration was involved in it, they would no longer be in this


administration . . .


I've made it clear that there's been nothing, absolutely nothing brought to our attention to


suggest any White House involvement, and that includes the Vice President's office as well.


When I'm talking about the White House, I'm talking about the Vice President's office as


well.


http://www.whitehouse.gov/news/releases/2003/09/20030929-7.html.


During this time, while the President was unaware of the role that the Vice President's Chief


of Staff and National Security Adviser had in fact played in disclosing Ms. Wilson's CIA


employment, defendant implored White House officials to have a public statement issued


exonerating him. When his initial efforts met with no success, defendant sought the assistance of the


Vice President in having his name cleared. Though defendant knew that another White House


official had spoken to Novak in advance of Novak's column and that official had learned in advance


that Novak would be publishing information about Wilson's wife, defendant did not disclose that


fact to other White House officials (including the Vice President) but instead prepared a handwritten


statement of what he wished White House Press Secretary McClellan would say to exonerate him:


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 27 of 39


28


People have made too much of the difference in


How I described Karl and Libby


I've talked to Libby.


I said it was ridiculous about Karl


And it is ridiculous about Libby.


Libby was not the source of the Novak story.


And he did not leak classified information.


As a result of defendant's request, on October 4, 2003, White House Press Secretary


McClellan stated that he had spoken to Mr. Libby (as well as Mr. Rove and Elliot Abrams) and


"those individuals assured me that they were not involved in this." Memo. Exhibit I.


Thus, as defendant approached his first FBI interview he knew that the White House had


publicly staked its credibility on there being no White House involvement in the leaking of


information about Ms. Wilson and that, at defendant's specific request through the Vice President,


the White House had publicly proclaimed that defendant was "not involved in this." The President


had vowed to fire anyone involved in leaking classified information. In that context, defendant


proceeded to tell the FBI that he had merely passed information from one reporter (Russert) to other


reporters while disclaiming any knowledge of whether the information he passed was true, and


certainly unaware that he knew this classified information from government channels. Once that die


was cast, defendant repeated the story in a subsequent interview and during two grand jury


appearances.


Against this backdrop, defendant argues that he is entitled to rummage around in government


files in an effort to find documents that would somehow help him to establish he had no reason to


conceal his role in disseminating then-classified information. He offers no explanation for how the


categories of documents he seeks will assist in establishing his lack of motive, and as a result fails


to explain how the materials sought would enable him "significantly to alter the quantum of proof


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 28 of 39


29


in his favor," 3/10/06 Mem. Op. at 8, or why there "is a strong indication that [the documents] will


play an important role" in enabling the defendant to respond to the charges in the indictment, id.


Absent such a showing, and in the face of specific evidence proffered by the government that does


set out defendant's motive to lie, defendant's argument that the requested discovery generally may


be useful in locating evidence of his lack of motive to lie can only be understood as a fishing


expedition of the sort that is not permitted by the criminal discovery rules.


E. Defendant is Not Entitled to the Requested Documents Under Brady.


The Brady doctrine does not entitle the defense to everything it would like to have but which


Rule 16 does not provide. Defendant simply asserts in three sentences that certain documents that


might exist must be Brady.


First, defendant asserts without elaboration that "Information ... that tends to show that Mr.


Libby did not improperly disclose the contents of the NIE is surely Brady material." Memo at p. 34.


The question of whether defendant did anything improper in disclosing the NIE is not relevant to


whether defendant committed perjury by lying about something else, and therefore it cannot


constitute favorable evidence under Brady. To the contrary, proof that the disclosure was proper


would not negate proof that he committed perjury by lying about something else.


Defendant also asserts without elaboration that "documents that help establish that no White


House-driven plot to punish Mr. Wilson caused the disclosure of Ms. Wilson's identity also


constitute Brady material." Once again, defendant ignores the fact that he is not charged with


participating in any conspiracy, much less one defined as a "White House-driven plot to punish Mr.


Wilson." Thus, putative evidence that such a conspiracy did not exist is not Brady material.


Moreover, given that there is evidence that other White House officials with whom defendant spoke


Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 29 of 39


To the extent that defendant would hang his hat on the argument that another person or 10


persons outside the White House may have discussed Wilson's wife's employment with the press


prior to July 14, 2003 (for whatever reason), any such evidence would not negate evidence that


multiple officials in the White House discussed her employment with reporters prior to (and after)


July 14. But again the existence vel non of concerted action by White House officials is not


dispositive of whether defendant committed perjury in describing what he did.


30


prior to July14, 2003 discussed Wilson's wife's employment with the press both prior to, and after,


July 14, 2003 - which evidence has been shared with defendant - it is hard to conceive of what


evidence there could be that would disprove the existence of White House efforts to "punish"


Wilson. Surely, defendant cannot claim that any document on its face that does not reflect a plot 10


is exculpatory.


Finally, defendant asserts, again without elaboration, that "information that tends to show that


government officials who knew that Ms. Wilson worked for the CIA did not treat that information


as classified" is Brady material as well. (Memo. at 34.) Defendant is neither charged with disclosing


classified information nor with lying about what other officials thought about the classified nature


of Ms. Wilson's employment. He is charged with perjury for lying under oath when he testified that


he thought he learned information about Wilson's wife as if it were new from Tim Russert on July


8 when in fact the information was neither new to him (he wa

homepage: homepage: http://electromagnet.us/dogspot/

it wouldn't all fit... 07.Apr.2006 15:48

roknich

I'll post the conclusion as a separate article....

perjury 09.Apr.2006 12:36

rAT

once is OK. Twice is dumber than dirt. It's P-E-R-J-U-R-Y

cut and paste -oops PERJURY 10.Apr.2006 10:00

roknich

oops. I can't edit here. I obviously didn't read my headline :(