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Filing in Libby Purgery Trial - latest on Rove/Plame Outing - conclusion

the complete document didn't all fit in one article - here is the best part -
"...Defendant (Libby) also argues that he should be granted more discovery, not less discovery, because "thorny issues of national security classification and executive privilege may need to be resolved."
(Memo. at 5.) Defendant should be provided the discovery to which he is entitled. If he is not entitled to certain discovery, he should not be granted it merely because the documents he is seeking implicate "thorny" issues that will complicate, not expedite, litigation."
(entire document in various formats is available at:  link to electromagnet.us )

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 was dispensing it the days before his

conversation with Russert) nor was it discussed with Mr. Russert. What other persons, particularly

persons outside the Office of the Vice President, thought about the classified nature of Wilson's

wife's employment is irrelevant -- not Brady material.

F. Defendant is Not Entitled to the CIA Criminal Referral or Related Documents.

Defendant seeks production of the CIA's criminal referral to the Justice Department, as well

as all documents referenced in that referral. Beyond a naked assertion that "Mr. Libby's need for the

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 30 of 39

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documents in this case is clear," defendant makes no attempt to explain how the criminal referral and

related materials are "material to preparing the defense" within the meaning of Rule 16.

The criminal referral and related documents simply bear no relationship to the perjury and

false statement offenses charged in the indictment. The author of the referral, a CIA attorney, will

not be a government witness, the referral does not summarize statements made by persons who will

be government witnesses, and the referral occurred well before defendant's alleged commission of

the crimes charged in the indictment. Under these circumstances, defendant cannot plausibly

contend that "there is a strong indication that [the criminal referral and related materials] will play

an important role," 3/10/06 Mem. Op. at 8, in preparing his defense against the charges in the

indictment.

Moreover, Rule 16(a)(2) provides that "[e]xcept as Rule 16(a)(1) provides otherwise, this

rule does not authorize the discovery or inspection of reports, memoranda, or other internal

government documents made by an attorney for the government or other government agent in

connection with investigating or prosecuting the case." Other than his generic assertion that all of

the documents he seeks are within the scope of Rule 16(a)(1)(E) because they are material to

preparing the defense, defendant cites no provision of Rule 16(a)(1) that overcomes this exclusion,

which clearly applies to the CIA referral documents. See United States v. Goulding, 26 F.3d 656,

661 (7th Cir. 1994) (in tax prosecution, district court correctly invoke Rule 16(a)(2) in refusing to

order production of IRS criminal referral documents); Gollaher v. United States, 419 F.2d 520, 527-

28 (9th Cir. 1969) (judge properly relied upon Rule 16(a)(2) in refusing disclosure of inter-agency

communications sought on ground that they might have shown that the Federal Housing

Administration's attitude in pursuing loan fraud prosecution was one of bias).

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 31 of 39

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Finally, the criminal referral contains the legal analysis and opinions of a CIA attorney,

communicated to an attorney in the Justice Department, and thus is protected by the attorney-client

privilege, as well as pre-decisional preliminary evaluations and recommendations of government

officials that are covered by the deliberative process privilege. Defendant represents that at present

he seeks "only the unprivileged facts contained within the referral documents," Memo. at 33, but the

presentation and analysis of facts relating to the leak of Ms. Wilson's name and employment are

closely intertwined. Moreover, even if certain portions of the criminal referral and related

documents are not protected by privilege, the non-privileged portions are not discoverable under

Rule 16 simply because defendant demands them. As this Court made clear in its March 10, 2006

Memorandum Opinion, Rule 16 sets a higher bar, and may not serve as a vessel from which

defendant can conduct fishing excursions through government files. Although defendant's request

for the CIA referral and related materials should be denied outright in light of his complete failure

to articulate a basis for their production under Rule 16, the government would not object to providing

these materials to the Court in camera if the Court would find that of assistance.

G. Neither the Office of the Vice President, the White House Office, the National

Security Council, nor the State Department Should Be Considered Aligned

With the Prosecution Based on White House Counsel's Directive to Cooperate

or the Agencies' Compliance with Subpoenas.

In its March 10, 2006 Memorandum Opinion, the Court concluded that the Office of the Vice

President (OVP) is "closely aligned" with the prosecution, and that the prosecution had "knowledge

of and access to" documents in the possession of OVP for Rule 16 purposes. In its discussion of the

alignment issue, the Court cited the undisputed fact that White House Counsel's Office had sent a

message declaring "full cooperation" with the investigation. The Court also cited what it called the

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 32 of 39

The government is not asking the Court to reverse its prior ruling with respect to the 11

documents that the Court ordered the government to produce. The government fully intends to abide

by the Court's ruling and produce the documents specified by the Court. The government seeks

reconsideration of only the Court's rationale for ordering the production of those documents.

For clarity, it is important to note the distinctions between the various government entities. 12

The defendant describes the White House as including "the Executive Office of the President, the

NSC and the OVP." (Memo. at 18.) That is incorrect. The Executive Office of the President is the

umbrella entity within which there are many additional components, such as the White House Office,

the OVP, and the NSC, among others. See Office of the Federal Register, Nat'l Archive and Records

Admin., The United States Government Manual 1999/2000 v., 90-108 (1999).

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"rather free flow of documents"from the OVP to the Office of Special Counsel (OSC). (March 10,

2006 Op. at 13-15.) In his Third Motion to Compel, defendant cites the Court's March 10 Opinion

and claims that "the Executive Office of the President, the NSC and the State Department are also

'aligned with the prosecution'" because of the "rather free flow of documents" sent by those entities

to the OSC. (Memo. at 18.)

The government respectfully requests that the Court reconsider the ruling that OVP is

"closely aligned" with the prosecution, and further asks that the Court find that the White House 11

Office (also known as the Office of the President), the NSC, and the State Department are also not

aligned with the prosecution. The pledge of cooperation with the investigation made by White 12

House Counsel's office in September 2003 does not and cannot dictate any alignment with the

prosecution. A precedent holding that a pledge of cooperation dictates alignment for discovery

purposes creates a serious disincentive for agencies to cooperate fully with Department of Justice

investigations because such cooperation would potentially subject the agency to wide-ranging

discovery requests by defendants and the need to litigate questions of privilege concerning agency

documents and information. A finding of alignment based on that rationale would be unprecedented.

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 33 of 39

It is worth noting that executive branch agencies routinely cooperate with the Department 13

of Justice in investigations. If cooperation with subpoena requests or other cooperation with the

Department of Justice is akin to alignment with the Department of Justice, the result could be that

any executive branch agency relevant to the case would be considered aligned with the prosecution.

The Court rejected this result in its March 10 Opinion. (March 10, 2006 Op. at 7 n.10.)

Put another way, this is not at all like the situation in United States v. Brooks, 966 F.2d 14

1500, 1503 (D.C. Cir. 1992), where the close working relationship between Washington

Metropolitan Police (MPD) and the U.S. Attorney for the District of Columbia aligned MPD with

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Moreover, although the Department of Justice sought documents from various government

entities by letter request in the initial stages of the investigation, as soon as Special Counsel became

involved in January 2004, all documents were obtained through grand jury subpoenas. To the extent

there was a steady flow of documents produced, that flow of documents was in response to a steady

flow of subpoenas. A precedent holding that compliance with subpoenas aligns an agency with the

prosecution creates a perverse incentive for an agency to attempt to quash any and all subpoenas it

receives, or to otherwise avoid full compliance with grand jury subpoenas lest its cooperation deem

it as part of the prosecution team with concomitant discovery obligations. 13

Although OVP provided documents in response to subpoenas issued to it, it has not acted on

the prosecution's behalf in this investigation and is not closely connected to the prosecution. See

e.g., Strickler v. Greene, 527 U.S. 263, 281 (1991) (prosecutor's duty to disclose information under

Rule 16 and Brady extends to "others acting on the government's behalf in the case") (quoting Kyles

v. Whitley, 514 U.S. 419, 437 (1995))); United States v. Jordan, 316 F.3d 1215, 1249 (11th Cir.

2003) (possession, custody, or control of the government for Rule 16 purposes includes government

agencies "closely connected to the prosecutor"). The same is true for the White House Office, the

NSC, and the State Department - they provided documents in response to subpoenas, but they have

not acted on the prosecution's behalf and are not closely connected to the prosecution. Thus, in 14

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 34 of 39

the prosecution and obligated a federal prosecutor to search for and disclose a specific file related

to a witness.

In this case, the prosecution has provided defendant with all documents produced by OVP 15

in connection with this investigation.

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the government's view, neither the OVP, the White House Office, the NSC, nor the State

Department are aligned with the prosecution, and documents in the physical possession of those

entities are not within the government's possession, custody or control.

In the event that the Court declines to reconsider its prior ruling regarding OVP's alignment

with the prosecution, the government asks that the Court find that the White House Office, the NSC

and the State Department are differently situated than OVP in terms of alignment. One distinction

is that OVP was defendant's primary employer, and, as a result, defendant likely had or could have

had access to a large majority of, if not the entirety of, the OVP documents, including those that were

ultimately produced by OVP to the prosecution. Cf. United States v. Poindexter, 727 F. Supp. 1470,

1478 (D.D.C. 1989) (noting as a similarity between two cases that found alignment between the

prosecution and an agency the fact that in both the agency from which the criminal defendant was

seeking documents was the agency of his or his co-conspirator's employment). That is not the case 15

with documents from other governmental agencies. Moreover, other than the fact that the White

House, the NSC, and the State Department provided documents to the prosecution, defendant has

offered no explanation in his brief as to why those entities should be considered aligned with the

prosecution.

Another important distinction regarding the White House Office in particular is that the

Supreme Court has "long recognized the 'unique position in the constitutional scheme' that [the

White House Office] occupies." Clinton v. Jones, 520 U.S. 681, 698 (1997) (quoting Nixon v.

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 35 of 39

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Fitzgerald, 457 U.S. 731, 749 (1982)). See also Cheney v. U.S. District Court for the District of

Columbia, 542 U.S. 367, 381-82 (2004). Thus, the Supreme Court instructs that, with respect to

discovery addressed to the White House Office, "[t]he high respect that is owed to the office of the

Chief Executive . . . is a matter that should inform the conduct of the entire proceeding, including

the timing and scope of discovery." Clinton, 520 U.S. at 707. See generally, Cheney, 542 U.S. at

381-92. Applying these principles to Rule 16, the Court should conclude that the prosecution does

not have custody or control over material in the possession of the White House Office. It is a near

impossibility that subordinate DOJ officers would have custody or control over material in the

possession of the White House Office, which houses the President's closest staff.

The considerable potential for disrupting and complicating this litigation, as well as ongoing

government functions, is a reason for this Court to exercise caution in finding alignment and in

expanding discovery substantially beyond what is required by Rule 16, Jencks, and the Constitution.

First, most of defendant's requests implicate extensive classified information, while others raise

issues of executive privilege. Many are so broadly drawn as to require production of large amounts

of irrelevant material, and to require the disclosure of sensitive information about third parties who

are not government witnesses and who could not provide information exculpatory of defendant.

Second, virtually all of the information sought by defendant involves sensitive governmental policy

deliberations at the highest levels of government. In such a context, this Court should be reluctant

to order discovery beyond that which is reasonably related to the preparation of the defense to the

charges in the indictment. Finally, as discussed above, the degree to which subpoenaed government

entities complied with, rather than contested, subpoenas issued by independent investigators made

it possible to conduct this investigation in very sensitive circumstances. Disclosure of materials well

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 36 of 39

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beyond that which is required under the Rules and necessary to the preparation of a defense may chill

the willingness of future presidents and high-ranking government officials to assist criminal

investigations of conduct by staff members holding sensitive positions. The government submits that

these weighty considerations directly contradict defendant's assertion that providing the documents

defendant requests from the other agencies would pose no "significant burden." (Memo. at 18.)

Indeed, quite the opposite is true.

Defendant also argues that he should be granted more discovery, not less discovery, because

"thorny issues of national security classification and executive privilege may need to be resolved."

(Memo. at 5.) Defendant should be provided the discovery to which he is entitled. If he is not

entitled to certain discovery, he should not be granted it merely because the documents he is seeking

implicate "thorny" issues that will complicate, not expedite, litigation.

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 37 of 39

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CONCLUSION

For all of the foregoing reasons, the United States respectfully requests that this Court deny

the defendant's third motion to compel discovery.

Respectfully submitted,

/s

PATRICK J. FITZGERALD

Special Counsel

Office of the United States Attorney

Northern District of Illinois

219 South Dearborn Street

Chicago, Illinois 60604

(312) 353-5300

Dated: April 5, 2006

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 38 of 39

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on this 5th day of April, 2006, I caused true and correct

copies of the foregoing to be served on the following parties by electronic mail:

William Jeffress, Esq.

Baker Botts

The Warner

1299 Pennsylvania Avenue, N.W.

Washington, DC 20004-2400

Facsimile: 202-585-1087

Theodore V. Wells, Esq.

Paul Weiss

1285 Avenue of the Americas

New York, NY 10019-6064

Facsimile: 212-373-2217

Joseph A. Tate, Esq.

Dechert LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103-2793

Facsimile: 215-994-2222

John D. Cline, Esq.

Jones Day

555 California Street

San Francisco, CA 94104

Facsimile: 415-875-5700

Patrick J. Fitzgerald

Special Counsel

U.S. Department of Justice

1400 New York Ave., N.W.

Washington, D.C. 20530

202-514-1187

By: /s/

Kathleen M. Kedian

Deputy Special Counsel

Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 39 of 39
As I see it... 07.Apr.2006 20:19

Pravda or Consequences

I think that in this reactionary game of politics that GW will say that he declassified this and not that at his convenience and as usual the Democrats will be slow (or not at all) to call him on it.

I think the Democrats think that most of America just don't care or are too apathetic.

We are doomed.

republicans know how to fight it out - like fitz! 07.Apr.2006 22:10

roknich

fitzgerald wants to bust this guy (Libby) for LYING.
remember - fitzgerald is a lifelong Republican and knows how they think.
It looks to me like all those "thorny issues" of what is classified and what is not will be
blown aside and fitz will celebrate another victory!
hurrah for the Republic!

btw - yer right, the dems have been too slow
let's hope there's still truth in the old saw "the slower the turn, the finer the grind"

if people like Futz have their way, the thieves and whores will finally be driven from Washington -
just like the clean-up job that he completed in Illinois which has since gone completely Democrat since
Fitz pulled the rug out from under Rumsfeld's home-boys down there
see:  http://rumsfeld.blogspot.com

Rumsfeld left Illinois for Washington just before Fitz pulled out the rug from under fellow malefactors in his home town. who's next? ;)

-dave

rationalization runs counter to government actions 08.Apr.2006 12:09

TheTroll

Bush's mouthpiece says Bush isn't guilty of disclosing classified intel becasue bush de-classified the intel for the national good. Well, as I can recall, the government DID bring people up on charges. Anyone recall the reporter chick's name??? If the government's official position in the law suit was that classified intel was released, then why is BushCO saying Bush declassified the intel??? Eiter it was declassified, and NOONE would face ANY charges OR an investiagtion. Or, the government's official position was that the intel was NOT declassified, and Bushco's mouthpieces are now lying. Why would BushCO let lawsuits (not free and not cheep) go forward IF Bush had really declassified the intel? Why would the official government position be to investigate the disclosure of classified intel IF Bush had declassified the intel??? Invesitgations are not free or cheep either. Could it just be busy work to keep people looking away from where other shinanigans are taking place.

Just why would the official government action of investigating and prosecuting the disclosure of classified intel be the government's position IF the intel was in fact declassified? Fact is, it wouldn't be investigated or prosecuted IF the intel was in fact declassified.

going down (#2) 08.Apr.2006 13:36

rATsputin

Bush will go down for CRIMINAL CONSPIRACY TO OBSTRUCT JUSTICE, Just like tricky Dicky Nixon. His interpretation of the declassification statutes to justify selective leaks could easily amount to conspiracy on Bush's part as well as Cheney's. There are major calls right now to have him appear before Congress and explain himself. This story is so potentially devastating to Bush that it is being relegated to item status on many news shows. It won't work though. Just watch! He's caught in his own self-entrapment net that is the historic downfall of 'leakers'. See him squirm!

still pondering 08.Apr.2006 16:00

TheTroll

So, why would those who disclosed the intel want to keep the declaisification a secret AND conduct investigations and prosecutions???

Think of those who got the intel. It would be power to intimidate people who got the intel. Hey, the democrats will rip you to shreds to get to Bush, so you better play ball with us because we are your only friends. Play it by our rules and do as you are told and we will use our power to help you.

answer to troll question (I know I shouldn't answer trolls, but here goes) 08.Apr.2006 16:38

roknich

their still exists in the US an "Office of Special Counsel"
if you read the entire filing above, you will see that he is insisting that he not be considered by the court to be "aligned" with Cheney's office or the rest of the governemnt, even though, by necessity,
the case is called US vs I.Lewis Libby or some such title...
that's the idea:
the idea originated with Watergate -
the current administration is trying to dilute it by claiming that Cheney's office is "aligned with the prosecution" and that claim is bogus.

great minds think alike 10.Apr.2006 13:34

TheTroll

It was almost as if it was quoting my post.

April 10th at whatreallyhappened.com posted an article from buzzflash.com that spelled out the charges Bush and Cheney could face IF there were equal protection under the law.

Maybe Judith Miller should file a law suit against the federal government for false arrest and wrongfull imprissonment.