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
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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
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
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
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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).
"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.
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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
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
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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.
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
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.
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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
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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
For all of the foregoing reasons, the United States respectfully requests that this Court deny
the defendant's third motion to compel discovery.
PATRICK J. FITZGERALD
Office of the United States Attorney
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
Dated: April 5, 2006
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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.
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Theodore V. Wells, Esq.
1285 Avenue of the Americas
New York, NY 10019-6064
Joseph A. Tate, Esq.
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
John D. Cline, Esq.
555 California Street
San Francisco, CA 94104
Patrick J. Fitzgerald
U.S. Department of Justice
1400 New York Ave., N.W.
Washington, D.C. 20530
Kathleen M. Kedian
Deputy Special Counsel
Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 39 of 39
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