Libby Emergency Appeal

Tuesday, June 19, 2007
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Case No. 07-
Appeal from the
United States District Court for the District of Columbia
D. Ct. No. CR 0.5-394 (RBW)
UNITED STATES OF AMERICA, Plaintiff- Appellee, v.
I. LEWIS LIBBY,
also known as "Scooter Libby,"
Defendant-Appellant.
APPELLANT'S APPLICATION FOR RELEASE
PENDING APPEAL
Theodore V. Wells, Jr. James L. Brochin
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3089
Lawrence S. Robbins Roy T. Englert, Jr. Mark T. Stancil
ROBBINS, RUSSELL, ENGLERT, ORSECK & UNTEREINER LLP
1801 K. Street, NW
Suite 411
Washington, DC 20006-1322 (202) 775-4500
Date: June 19, 2007
Counsel,for Appellant






TABLE OF CONTENTS
A. THERE IS AT LEAST A CLOSE QUESTION WHETHER THE APPOINTMENT OF THE SPECIAL COUNSEL VIOLATED THE APPOINTMENTS CLAUSE OF THE CONSTITUTION .........3
B. THE DISTRICT COURT'S PRECLUSION OF CRUCIAL MEMORY-DEFENSE EVIDENCE - BECAUSE DEFENDANT ELECTED NOT TO TESTIFY - IS A CLOSE QUESTION 11
C. THE DISTRICT COURT'S REFUSAL TO PERMIT THE DEFENSE TO CALL ANDREA MITCHELL - BASED
ON THIS COURT'S DECISION IN UNITED STATES v. JOHNSON-IS ALSO A CLOSE QUESTION 17
CONCLUSION 20


TABLE OF AUTHORITIES
Page(s) Cases:
Brooks v. Tennessee, 406 U.S. 605 (1972) 11
Dyer v. MacDougall, 201 F.2d 265 (2d Or. 1952) 19
Edmond v. United States, 520 U.S. 651 (1997) ......................... 4, 5, 6, 10, 11
Morrison v. Olson, 487 U.S. 654 (1988) 5, 7
United States v. Buffalo, 358 F.3d 519 (8th CiCir. 2004) 18
United States v. Carter, 973 F.2d 1509 (10th r. 1992) 19
United States v. Fernandez, 887 F.2d 465 (4th Cir. 1980) 10
United States v. Jenkins, 928 F.2d 1175 (D.C. Cir. 1991) 19
United States v. Johnson, 802 F.2d 1459 (D.0 Cir. 1986) 2, 18
United States v. Libby, 429 F. Supp. 2d 27 (D,D.C. 2006) 4, 5
United States v. Libby, 461 F. Supp. 2d 1 (D.D.C. 2006) ........................... 16
United States v. Libby, 467 F. Supp. 2d 1 (D.D.C. 2006) 14
United States v. Libby, 475 F. Supp. 2d 7.3 (D.D.C, 2007) 13, 17
United States v. Morlang, 531 F.2d 183 (4th Gr. 1975) 18
United States v, Perholtz, 836 F.2d 554 (D.C. Cir. 1987) 2
United States v. Peterman, 841 F.2d 1474 (10th Gr. 1988) 18, 19
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TABLE OF AUTHORITIES — Cont'd.
Page(s)
United States v. Salameh, 152 F. 3d 88 (2d Cir. 1998) 14
United States v. Webster, 7.34 F.2d 1191 (7th Cir 1984) 18
United States v. Zafiro, 945 F.2d 881 (7th Gr. 1991) 19
Weiss v. United States, 510 U.S. 163 (1994) 6
Statutes and Regulations:
18 U.S.C. App. 3 § 6(c) 12
18 U.S.C. App. 3 § 6(c)(1)(A) 1.5
18 U.S.C, App. 3 § 6(c)(1)(B) 15
18 U.S.C. App. 3 § 6(c)(2) 9
18 U.S.C. App. 3 § 14 9
Pub. L. No. 103-270, 108 Stat. 732 10
28 C.F,R. § 50 10 7
28 C.F,R. Part 600 2, 3, 4, 5
28 C.F.R. § 600.7(a) 2
28 C.F.R.§ 600.8(b) 2
Other Authorities:
FED. R. EVID. 401 13
H.R. Rep, No. 103-224 (1994) 10
iii


TABLE OF AUTHORITIES Coned.
Page(s)
UnitedStates Attorneys' Manual 3-18,200 7
United States Attorneys' Manual 9-13.400 7
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I. Appellant I. Lewis "Scooter" Libby, by counsel, respectfully submits this application for release pending appeal under Fed. R. App. P. 9(b) and Circuit Rule 9(b). Libby was tried by a jury before Judge Reggie B. Walton. On March 6, 2007, Libby was convicted on one count of obstruction of justice (18 U.S.C. § 1.503); two counts of perjury (18 U.S.C. § 1623); and one count of making a false statement to government investigators (18 U.S.0 § 1001). The jury acquitted Libby on an additional false statement count, On June 14, 2007, Judge Walton imposed concurrent sentences of 30 months on the obstruction count, 24 months on the perjury counts, and 6 months on the false statement count; a $250,000 fine; a $400 special assessment; 400 hours of community service; and two years' supervised release. Judge Walton permitted Libby to self-surrender but declined to set a specific surrender date and denied a motion to stay that date pending this Court's disposition of this bail application. Counsel are informed that the Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation. Accordingly, we respectfully request that the Court expedite action on this application,
II. On June 14, 2007, Judge Walton found that Libby presented no risk of flight or danger to the community but denied his bail motion; in Judge


Walton's view, Libby's appeal will not raise any question that is "substantial" under 18 U.S.C. § 3143(b). 6/14/07 Tr. (Ex. A) 56-59, 65-73.
III. Under Section 3143(b), a "substantial" question is "a 'close' question or one that very well could be decided the other way," United States v. Pe•holtz, 836 F.2d 554, 555 (D.C. Cir. 1987). Libby will present at least three questions on appeal that easily meet that standard:
• Whether a Special Counsel who is given the "plenary" powers of the Attorney General; who is "independent of the supervision or control of any officer of the Department [of Justice]"; whose authority is not "defined and limited by 28 CFR Part 600" (including obligations to "comply with the rules, regulations, procedures, practices and policies of the Department of Justice [DOT (§ 600.7(a)) and "notify the Attorney General" of "significant events") (§ 600.8(b)); whose prosecutorial jurisdiction extends to any violation "related to" the designated offense; and whose lack of supervision led him to exercise himself the Attorney General's statutory duty to malce sensitive national security determinations even though the Classified Information Procedures Act (CIPA) specifically forbids delegation of that duty to persons not identified in the Act is a "principal" officer of the United States who must therefore be appointed by the President and confirmed by the Senate under Art. II, Sec, 2, Cl. 2.
Whether the district court erroneously excluded crucial evidence bearing on Libby's memory defense simply because the defendant exercised his right not to testify.
Whether United States v. Johnson, 802 F.2d 14.59 (D.C. Cir. 1986), precludes a criminal defendant from calling and impeaching a witness who has made a crucial, exculpatory statement in the past, but whose lawyer represents that, were she to testify now, she would disavow the prior statement.
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A. THERE IS AT LEAST A CLOSE QUESTION WHETHER THE APPOINTMENT OF THE SPECIAL COUNSEL VIOLATED THE APPOINTMENTS CLAUSE OF THE CONSTITUTION
When Acting Attorney General (AAG) James Comey received reports that the identity of a CIA employee had been leaked to reporters, he had a choice to make, He could have (i) allowed the investigation begun by career prosecutors in DOJ's Counterespionage Section to continue, subject to his ultimate oversight as AAG; (ii) designated a federal prosecutor from outside Main Justice to investigate the matter under his supervision; (iii) appointed a Special Counsel pursuant to longstanding DOJ regulations (28 C.F.R. Part 600) to pursue the matter; or (iv) sought authority from Congress (by statute or through a presidential appointment with the advice and consent of the Senate) to commence an investigation outside those established structures. AAG Comey chose "none of the above."
Instead, he forged a fifth * and historically unprecedented — path, appointing Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois, as Special Counsel. On December 30, 2003, AAG Comey delegated to Fitzgerald "all the authority of the Attorney General with respect to" the investigation, and "directed" him "to exercise that authority as Special Counsel independent of the supervision or control of any officer of the
.3


Department." (Ex. B) (emphasis added). On February 6, 2004, Comey clarified that "my December 30, 2003, delegation to you ... is plenary" and that "the title 'Special Counsel' . should not be misunderstood to suggest that your position and authorities are defined and limited by 28 C.F.R. Part 600." (Ex. C) (emphasis added). 28 C.F.R. Part 600 obligates Special Counsel to comply with DOJ. policies and practices (§ 600.7(a)) and to notify the Attorney General of "significant events" in a case (§ 600.8(b)).
Under the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, "inferior officers" may be appointed by presidential appointees without congressional involvement, but "principal officers" must be appointed by the President with the advice and consent of the Senate. On April 27, 2006, the district court, denying Libby's detailed motion to dismiss the indictment (Dkt. 45), held that Fitzgerald is an inferior – not principal – officer. United States v. Libby, 429 F. Supp. 2d 27. The court recognized that "whether the Special Counsel is an inferior officer under Edmond [v. United States, 520 U.S, 651 (1997),] is a difficult question because the Special Counsel's work is conducted largely without direction and supervision." Id. at 45 (emphasis added). Nevertheless, the district court concluded that
"the Special Counsel's authority is limited" (id. at 40) – despite the written grant of "plenary" authority;
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O "the Special Counsel has not been given the authority to disregard established Department of Justice policies and regulations" (id. at 41) – despite the exemption from 28 C.F.R. Part 600; and
O "the Special Counsel is subject to the direction and supervision of the Deputy Attorney General" (id. at 45 n.17) – despite the provision that Fitzgerald was to operate "independent of the supervision or control of any officer of the Department"
Resting on those flawed premises, and purporting to apply Morrison v. Olson, 487 U.S. 654 (1988), the district court held that Fitzgerald is an inferior officer. That ruling presents, at the very least, a "close" question.
1. Edmond is the Supreme Court's most recent Appointments Clause decision. The unanimous Court there explained that "'inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." 520 U.S. at 663. If that test is controlling here, Fitzgerald cannot meet it: He was expressly relieved of any "supervision or control of any officer of the Department."
Because Judge Walton regarded this case as on all fours with Morrison, however, he saw no "need" to "confront th[e] analysis" of Edmond. 429 F. Supp. 2d at 45. To the extent Edmond applies at all, he added, it holds only that supervision by a superior officer is sufficient, but not necessary, for inferior-officer status. Id. at 37. It is a close question, to say the least,
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whether that analysis will prevail on appeal. Edmond nowhere intimated that the "directed and supervised" standard might apply only occasionally. To the contrary, the Court stated that this standard was "evident" "[g]enerally speaking," given "the context of a Clause designed to preserve political accountability." 520 U.S. at 662-663. With respect to the necessity of supervision for an inferior officer, at least one Justice has reached the exact opposite conclusion from the district court: Being "subject to some supervision or control," Justice Souter has stated, "is necessary for inferior officer status, but not sufficient to establish it." Edmond, 520 U.S. at 667 (Souter, J., concurring in part and concurring in the judgment).
If anything, it is a "close" question whether the Morrison multi-factor analysis (which Judge Walton thought dispositive) applies at all in this case. Morrison involved an Act of Congress signed by the President; when a decision regarding interior-officer status reflects the judgment that "neither Congress nor the President thought" the officer in question was a principal (Weiss v. United States, 510 U.S. 163, 194 (1994) (Souter, J., concurring)), there may be good reason to defer to that judgment. Here, by contrast, an Executive Branch official, with the informal stroke of a pen, drafted two letters that created a new prosecutor with the "plenary" powers of the Attorney
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General, no supervision by anyone, and no input of any kind from Congress. Whether Morrison applies in this setting is far from clear.
2. But even if the Morrison factors apply, it is a "close" question whether Fitzgerald is a principal officer. First and foremost, unlike Independent Counsel Morrison – who, under the Ethics in Government Act, was expressly required to obey DOJ policies (487 U.S. at 662) – Fitzgerald was expressly exempted from that obligation. As a result, he was free to depart from such established policies as the rules regarding subpoenas to media (USAM 9-13.400; 28 C.F.R. 50.10), and (as we detail below) the submission of national security filings under CIPA. He was likewise relieved of the obligation – also imposed on Morrison – to notify the Attorney General of "significant events" in the case, including decisions that would implicate "national security concerns," USAM 3-18,200. (As Judge Walton recognized (6/14/07 Tr, 47), whether Fitzgerald chose to provide notice is beside the point.) The fact that Alexia Morrison was bound by established DOJ policy was central to the Court's disposition. See 487 U.S. at 671-672.'
Although the defense and amici repeatedly argued that the exemption from 28 CFR Part 600 critically distinguished this case from Morrison (see Dkt. 45 at 20-21; Dkt, 362 at 6 & n.2; Dkt. 363 at 3; Dkt. 368 at 3-4; 6/14/07 Tr. 16-19), Judge Walton never once – not in his written opinion; not in his oral bail ruling– addressed that crucial sentence in AAG Comey's appointing letter.
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Second, whereas IC Morrison was constrained to seek from the Attorney General authority to investigate "related matters" (the AG declined her request), Fitzgerald was authorized from the outset to pursue not only the "alleged unauthorized disclosure of a CIA employee's identity"; and not only "federal crimes committed in the course of, and with intent to interfere with, [his] investigation"; but also "violations" that were merely "related to the underlying" charges. Ex. C.
In the district court's view, however, the fact that Fitzgerald is (at least supposedly) removable at will makes the case for inferior-officer status stronger here than in Morrison, 6/14/07 Tr. 70-71. Not so. As noted, IC Morrison was statutorily required to obey DOJ policy, which included the duty to keep the Attorney General abreast of key developments in the case. By contrast, as he acknowledged at the district court bail hearing, Fitzgerald is free from the duty to report to anyone. 6/14/07 Tr. 48. It is surely a "close" question whether the power of removal, when stripped of the power to be informed, is sufficient to render Fitzgerald an inferior officer. Particularly where grand jury and CIPA secrecy keeps the conduct of the Special Counsel closely guarded, it is hard to see how the abstract power of removal is more than an empty formality.


3. This case illustrates vividly the consequences of vesting a federal prosecutor with the "plenary" powers of the Attorney General, and then relieving him of "supervision or control" by any other DOJ official and freeing him of any duty to report or to follow DOJ policies.
Section 14 of the Classified Information Procedures Act, 18 U.S.C. App. 3 § 14, provides that the functions of the Attorney General under CIPA "may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official" (emphasis added). Those functions include the power to submit an affidavit objecting to the disclosure at trial of otherwise admissible classified information because such disclosure "would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Id. § 6(c)(2). Fitzgerald, though he is none of the designated individuals under Section 14, filed a Section 6(c)(2) affidavit in this case, successfully objecting on national security grounds to a proposed substitution for classified information.2
Fitzgerald sent the defense a copy of a cover letter at the time, identifying "an ex parte and in camera affidavit" submitted in support of a Section 6(c) motion. He did not state that he, and not the real (or Acting) Attorney General, had signed that affidavit. The defense learned that fact only after trial,
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That crucial filing was a plain usurpation of powers assigned to higher officers by Section 14 of CIPA. As the Fourth Circuit explained in United States v. Fernandez, 887 F.2d 465, 470 (4th Cir. 1989), even though an independent counsel may be given full prosecutorial authority in a particular case, "{w]hat is never affected . is the Attorney General's power to protect information important to national security." This exercise of unlawfully delegated power is precisely what happens when a federal prosecutor is given "plenary" authority and then relieved of all "supervision and control"3
4. In short, the constitutionality of Fitzgerald's appointment is a close question. And the constitutional values at stake are important ones. "By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability" (Ed-
when a redacted, unclassified version of the affidavit was produced to the defense. Ex. D.
At oral argument on the bail motion, Fitzgerald contended that the 6(c)(2) filing was merely a "ministerial" act. 6/14/07 Tr. 39. That is simply not so. It is passing strange to think that CIPA 's drafters would have explicitly assigned the Attorney General an insignificant duty and limited its delegation to specifically enumerated senior DOJ officials. Moreover, Congress does not share Fitzgerald's understanding. When reauthorizing the Independent Counsel statute in 1994, Pub, L. No. 103-270, 108 Stat. 732, lawmakers expressly noted that "[t]he Attorney General . retains the power to prevent the disclosure of classified information" under CIPA – citing with approval the Fourth Circuit's decision in Fernandez. H.R. Rep. No. 103-224, at 9 & n.32 (1994).
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mond, 520 U,S, at 660) – accountability most needed when the prosecutorial power of the state is brought to bear on a single individual. That is precisely why 12 law professors – many of whom agree on little else – have filed as amici curiae with respect to the Appointments Clause challenge in this case.
B. THE DISTRICT COURT'S PRECLUSION OF CRUCIAL MEMORY-DEFENSE EVIDENCE – BECAUSE DEFENDANT ELECTED NOT TO TESTIFY – IS A CLOSE QUESTION
A criminal defendant has few rights more precious or personal than the right to testify or decline to testify in his own defense. Brooks v. Tennessee, 406 U.S. 605 (1972). Libby exercised that right and did not testify. As a consequence, however, the district court precluded evidence that bore critically on Libby's memory defense: a Statement Admitting Relevant Facts (which described the nature of Libby's job, as well as very specific matters on which he was engaged on key dates); and the key details of Libby's morning intelligence briefings on certain crucial dates in the case. Together with two related errors (precluding Libby's memory expert and ordering CIPA substitutions that materially diluted the classified information Libby needed), these rulings effectively eviscerated Libby's memory defense and unconstitutionally burdened his exercise of a Fifth Amendment right.
1. The government's case drew any force it had from showing the
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jury precisely what Libby was told and said about Ms. Wilson on very specific dates. To meet that evidence – and to demonstrate that any errors in his interviews and grand jury testimony resulted from innocent misrecollection – the defense sought to show that Libby received detailed, highly memorable information, including information received on some of the same or nearby dates, that competed in his memory with the facts regarding Ms. Wilson.
The Statement and the details of the Morning Briefings were critical to the memory defense. As the product of extensive pretrial CIPA hearings, those items were already diluted "substitutions" (under CIPA § 6(c)) for the classified information the defense sought to admit. The Statement described Libby's job responsibilities, and detailed specific issues he had dealt with on dates of surpassing importance in the case. For example, the government "agree[d] that . [i]n June, July, and August 2003, including when he received intelligence briefings on June 14, July [7], July 8, and August 20, 2003, Mr. Libby was concerned that Ansar al-Islam had established a link with al-Qaeda and was developing a presence in the United States." 1/23/07 p.m. Tr. (Ex. E) 49-51.
The Morning Briefing summaries focused on the very dates on which key conversations about Ms. Wilson occurred (June 9-14, 2003, and July 7-
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12, 2003) and involved terrorist threats, nuclear proliferation dangers, foreign policy crises, and other matters that the jury could have inferred were far more memorable than the snippets of conversation about Ms. Wilson.
When Libby later chose not to testify, however, the district court precluded the Statement altogether and permitted only the most generic versions of the Morning Briefings (presented in the form of a stipulation, see 2/14/07 (a.m,) Tr, 69-74). In the court's view, admitting this evidence, "without allowing the government any effective means of challenging it through cross-examination" of the defendant, would leave the jury "unable to resist speculating about the relative import of those matters to the defendant." United States v. Libby, 475 F. Supp. 2d 73, 89 (D.D.C. 2007),
2, The preclusion of the Statement and Morning Briefing evidence was deeply flawed. Evidence is relevant if it "ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401 (emphasis added). The evidence of the national security matters that commanded Libby's attention easily satisfies that standard, Even the district court acknowledged before trial that "there can be no question that what otherwise allegedly consumed the defendant's time and atten-
13


tion during [the week of June 9 through 14, 2003] is relevant and extremely probative to the prosecution and defense of this action," United States v. Libby, 467 F. Supp. 2d 1, 9-10 (D.D,C. 2006). Similarly, the court held that the week of July 6 through 12, 2003, is "critical to the case, and the events occurring during this week are relevant and highly probative." Id, at 10.
That evidence had a more-than-sufficient relevance predicate regardless of whether Libby testified. "As a general rule most evidence of intent is circumstantial." United States v. Salameh, 1.52 F.3d 88, 143 (2d Cir. 1998). And there was more than ample foundation, including through Libby's own grand jury testimony offered at trial by the government (see 2/.5/07 p.m, Tr. 57; 2/6/07 p.m. Tr. 27), and the trial testimony of Craig Schmall (one of Libby's CIA morning intelligence briefers) and John Hannah (Libby's national security deputy). 1/24/07 p.m. Tr. 90-101; 2/13/07 am. Tr. 57-89.4
In the district court's view, however, Libby was not entitled to offer either piece of evidence because both the government (in agreeing to these
Barring the briefers' testimony about the two key weeks was particularly unfair because the district court admitted a wide range of circumstantial state-of-mind evidence offered by the government, some of which lacked nearly as solid a relevance predicate as the defense evidence the court precluded. Perhaps most troubling of these was the admission of highly prejudicial newspaper articles from July 2003 that were found in files kept by Libby's assistant for his use, without any evidence that he even read them. GX-412, 413.
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CIPA substitutions) and the court (in ordering them) had always assumed that Libby would eventually testify at trial. That misunderstands the very nature of CIPA. Although CIPA requires a defendant to make predictions about the future course of the evidence, none of those judgments can bind a defendant to take the stand. Indeed, the government was on notice from the start of the CIPA proceedings that Libby might not testify. 9/27/06 Tr. 7.
The preclusion of the Statement based on Libby's decision not to testify is especially puzzling because the government made a tactical choice to offer the information in the Statement in the form of an admission under CIPA § 6(c)(1)(A) rather than a summary under § 6(c)(1)(B). An admission admits the facts contained in it. An admission comes into evidence on its own, rather than through the testimony of a witness. It would have made no sense for the government to admit the matters contained in the "statement admitting relevant facts" and then expect to challenge its own admissions by cross-examining Libby. For example, having admitted that Libby was "concerned" or "very concerned" about three specific matters during the summer of 2003, 1/23/07 p.m. Tr, 50-51, the government could not reasonably have expected to show the contrary at trial, on cross-examination of Libby or by
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any other means. Thus, Libby's decision not to testify did not even slightly disadvantage the government with respect to the Statement.
The district court's rulings worked an unconstitutional burden on Libby's Fifth Amendment rights and left the evidentiary playing field substantially uneven. Whereas the government got to offer detailed proof of conversations about Ms. Wilson on specific dates, the defense was generally permitted to offer only generic summaries of events spread over a span of many months. Whether the Constitution, CIPA, and basic rules of evidence permit such a one-sided joust is plainly a "close" question on appeal.
Finally, we note that these two rulings were compounded by at least two related errors (which space constraints preclude describing fully):
• The district court permitted the government to make substitutions under CIPA § 6(c) that came nowhere close to affording Libby "substantially the same ability to make his defense as would disclosure of the specific classified information." Indeed, at a hearing just ten days before its final ruling, the district court had found that some of the substitutions it ultimately approved did not meet the CIPA § 6(c) standard. E.g., 11/29/06 Tr. 24.
The court precluded the testimony of Dr. Robert Bjork, a renowned expert on human memory, because it concluded that his findings – the result of decades of research at leading universities – were a matter of common experience and would merely confuse the jury. United States v. Libby, 461 F. Supp. 2d 1 (D.D.C. 2006). Although the court justified its exclusion of Dr. Bjork's testimony in part with the assurance that it would instruct the jury on the considerations that should guide its assess-
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anent of memory, id. at 15, the court rejected Libby's proposed memory instruction, which embodied Dr. Bjork's findings, and gave a vague instruction that largely ignored those findings and provided the jury little guidance. 2/21/07 am. Tr. 16-18.
C. THE DISTRICT COURT'S REFUSAL TO PERMIT THE DEFENSE TO CALL ANDREA MITCHELL – BASED ON THIS COURT'S DECISION IN UNITED STATES v. JOHNSON – IS ALSO A CLOSE QUESTION
Tim Russert's testimony was crucial to every count of conviction. According to Russert, he could not have told Libby that Wilson's wife worked at the CIA because he learned that fact himself only later when he "read Robert Novak's column." 2/7/07 p.m. Tr, 29. But Russert testified that if other NBC reporters, specifically including Andrea Mitchell and David Gregory, learned such information, it would have been reported to the entire group. 2/8/07 a.m. Tr. 42. It follows that, if Mitchell had known about Ms, Wilson's role prior to the Libby-Russert conversation, she likely would have told Russert – in which event his testimony would be untrue.
In the course of an October 2003 CNBC broadcast (a CD of which is attached as Ex. F), Mitchell was asked whether she had had any idea "that Joe Wilson's wife worked for the CIA." United States v. Libby, 475 F. Stipp. 2d at 76 n.3. Mitchell stated that this fact "was widely known amongst those of us who cover the intelligence community and who were actively engaged
17


in trying to track down who among the foreign service community was the envoy to Niger." Thereafter, in certain radio interviews Mitchell acknowledged that she had made that statement but claimed that she had misspoken (see CD attached as Ex. G). The defense therefore sought to call Mitchell.
Relying on United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), however, the district court declined to permit the defense to call Mitchell. Mitchell's lawyer had represented to the district court that, if called to the stand, Mitchell would disavow her televised statement. The district court held that, under those circumstances, Johnson precluded Libby from calling Mitchell as a witness (2/13/07 am.Tr. 17-18).
To say the least, this is a "close" question. Johnson held that the government erred in calling a witness for no purpose other than to impeach him with a post-arrest, in-custody confession that cast blame on the defendant. 802 F.2d at 1465. Numerous courts have likewise prohibited the government from calling a witness simply to elicit inadmissible evidence.' Here it was
See, e.g., United States v. Buffalo, 358 F.3d 519, 525 (8th Cir. 2004) (emphasis added) ("When the prosecution attempts to introduce a prior inconsistent statement to impeach its own witness, the statement's likely prejudicial impact often substantially outweighs its probative value. . [W]hen the defendant seeks to introduce a prior inconsistent statement for impeachment purposes, the dangers identified above are not implicated"); United States v. Morlang, 531 F.2d 183, 189 (4th Cir. 1975) (making same distinction); United States v. Webster, 7.34 F.2d 1191, 1192 (7th Cir. 1984); United States v.
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the defense that sought to call Mitchell to show that, despite the representations of her counsel, Mitchell did learn about Ms. Wilson before the Novak article. Under cross-examination Mitchell may have agreed that her prior statement was true after all. See United States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992) ("Will the formality of the courtroom, the oath, and the penalties of perjury change the witness' decision? . . Any experienced trial attorney has encountered a witness who has changed his testimony between the final interview and trial."). Even if Mitchell had persisted in disavowing her prior statement, the jury was free to infer that Mitchell's testimony was false and that the opposite was true. See Dyer v. MacDougall, 201 F.2d 265, 268 (2d Cir. 1952) (L. Hand, J.) (disbelief of a witness "may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story"); United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991). See also United States v. Jenkins, 928 F.2d 1175 (D.C. Cir. 1991) (open question whether a factfinder may infer, from the mere disbelief of a witness, that the opposite of what the witness states is true),
Here, the jury would have had an abundant basis to disbelieve Mitchell and to infer that the opposite of her testimony was true. In addition
Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988),
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to her statement from October 2003 (which was made two to three years closer in time to the relevant events than her proffered retraction), there was also the fact that David Gregory had learned Ms. Wilson's identity in time to apprise Mitchell. There was the undisputed practice at NBC News of sharing important information in a timely manner. And there was Mitchell's motive to shade her trial testimony in order to protect Russert and the NBC franchise from the embarrassment and commercial harm that would plainly ensue if she testified in a way that undercut Russert's credibility.
IV. Pursuant to FRAP 9(b) and Circuit Rule 9(b)(4), the undersigned counsel certify that this appeal is not taken for delay.
CONCLUSION
Appellant should be granted release pending appeal.
Dated: June 19, 2007 Respectfully submitted,
Theodore V. Wells, Jr. James L. Brochin
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3089
Lawrence S. R .bins Roy T. Englert, Jr. Mark T. Stancil
ROBBINS, RUSSELL, ENGLERT, ORSECK & UNTEREINER LLP
1801 K Street, NW, Suite 411 Washington, DC 20006-1322 (202) 77.5-4.500
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CERTIFICATE OF SERVICE
I, Roy T. Englert, Jr., certify that two copies of the foregoing Application For Release Pending Appeal were served by hand and with courtesy copies by electronic mail on the 19th day of June, upon:
Patrick Fitzgerald
Office of Special Counsel Bond Building
1400 New York Avenue, NEW. Ninth Floor
Washington, D.C. 20530
202-514-1187
21



A


June 14 07 Tr
1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
2
3 UNITED STATES, GOVERNMENT,
4
VS. CR. NO. 05-394
5
6 I. LEWIS LIBBY,
DEFENDANT,
7
8 WASHINGTON, D. C. JUNE 14, 2007
9
TRANSCRIPT OF PROCEEDINGS
10 BEFORE THE HONORABLE REGGIE B, WALTON
11 FOR THE GOVERNMENT: PATRICK FITZGERALD, SPECIAL COUNSEL U. S. DEPARTMENT OF JUSTICE
12 219 SOUTH DEARBORN STREET CHICAGO, ILLINOIS 60604
13 312-353-5300
14 DEBRA R. BONAMICI
OFFICE OF SPECIAL COUNSEL
15 219 SOUTH DEARBORN STREET ROOM 500
16 CHICAGO, ILLINOIS 60604
312-353-3741
17
PETER ZEIDENBERG, AUSA
18 U. S. DEPARTMENT OF JUSTICE 1400 NEW YORK AVE., N. W.
19 ROOM 12-405.
WASHINGTON, D, C. 20005
20 202-514-1412
21
22
COURT REPORTER: PHYLLIS MERANA
23 6423 U. S. COURTHOUSE
333 CONSTITUTION AVE., N. W.
24 WASHINGTON, D. CE 20001
202-354-3243
25
1 APPEARANCES: (CONTINUED.)
2 FOR THE GOVERNMENT:
3 KATHLEEN M. KEDIAN
U. S. DEPARTMENT OF JUSTICE CRIMINAL DIVISION COUNTERESPIONAGE SECTION Page 1


June 14 07 Tr
4 THE BOND BUILDING
1400 NEW YORK AVE, N. W.
5 ROOM 9100
WASHINGTON, DE C. 20005
6 202-353-4473
7 FOR THE DEFENDANT: WILLIAM JEFFRESS, ESQ.
BAKER BOTTS, LLP
8 THE WARNER
1299 PENNSYLVANIA AVE., N.W.
9 WASHINGTON, D. C. 20004 202-639-7751
10
THEODORE WELLS, JR., ESQ
11 1285 AVENUE OF THE AMERICAS
PAUL, WEISS, RIFKIND, WHARTON &
12 GARRISON, LLP
1285 AVENUE OF THE AMERICAS
13 NEW YORK, N. YE 10019-6064 212-373-3089
14
LAWRENCE S. ROBBINS, ESQ.
15 MARK T. STANCIL, ESQ.
ROBBINS, RUSSELL, ENGLERT, ORSECK &
16 UNTEREINER, LLP
1801 K STREET, N. W.
17 SUITE 411
WASHINGTON, D. C. 2006
18
19
20
21
22
23
24
25
1 P-R-O-C-C-E-D-I-N-G-S
2 (THE DEFENDANT AND COUNSEL WERE PRESENT.)
3 THE DEPUTY CLERK: CRIMINAL ACTION NUMBER 05-394,
4 UNITED STATES OF AMERICA VERSUS I. LEWIS LIBBY.
5 COUNSEL, CAN YOU IDENTIFY YOURSELVES FOR THE
6 RECORD.
7 MRE FITZGERALD: GOOD MORNING, YOUR HONOR. PAT
8 FITZGERALD AND TEAM FOR THE UNITED STATESE Page 2


June 14 07 Tr
9 THE COURT: GOOD MORNING.
10 MR. WELLS: GOOD MORNING, YOUR HONOR. TED WELLS
11 AND TEAM FOR THE DEFENDANT LIBBYE
12 I WOULD LIKE TO INTRODUCE TO YOUR HONOR LARRY
13 ROBBINS AND MARK STANCIL. MR. ROBBINS AND MR. STANCIL WILL
14 BE LEADING OUR APPELLATE TEAM, AND MR. ROBBINS WILL BE
15 PRESENTING OUR ARGUMENT TODAY.
16 THE COURT: VERY WELL.
17 MR. BOBBINS: GOOD MORNING, YOUR HONOR.
18 THE COURT: GOOD MORNING.
19 THE FIRST THING WE NEED TO DO IS FINALIZE THE
20 ACTUAL SENTENCE, AND BASED UPON THE DISCUSSIONS I HAVE HAD
21 WITH THE PROBATION DEPARTMENT, AND CONTRARY TO WHAT WAS
22 SUGGESTED AT THE END OF OUR LAST HEARING ABOUT MY NEED TO
23 IMPOSE AN INDIVIDUAL SENTENCE, CONSISTENT WITH THE GUIDELINE
24 CALCULATIONS AS RELATED TO THE OTHER OFFENSES FOR WHICH I
25 DID NOT CROSS-REFERENCE, I AM BEING TOLD BY THE PROBATION
1 DEPARTMENT THAT THE APPROPRIATE THING TO DO IS WHAT I
2 INDICATED PREVIOUSLY, AND THAT IS TO IMPOSE A SENTENCE OF 30
3 MONTHS, CONSISTENT WITH THE RULINGS I MADE PREVIOUSLY ABOUT
4 WHY THE 30-MONTH SENTENCE IS APPROPRIATE, AND THAT THE
5 SENTENCE IMPOSED IS AN AGGREGATE SENTENCE SINCE ALL OF THE
6 OFFENSES HAVE TO BE GROUPED UNDER THE GUIDELINES AND,
7 THEREFORE, THE SENTENCE THAT I WOULD IMPOSE WOULD MERELY BE
8 A 30-MONTH SENTENCE. AND IN THE EVENT, ON APPEAL, IT'S
9 DETERMINED THAT CROSS-REFERENCING WAS NOT APPROPRIATE, AND
10 THE CASE IS REMANDED FOR RESENTENCING, AT THAT POINT THERE
11 WOULD HAVE TO BE A RECALCULATION, AND THEN AN AGGREGATE
12 SENTENCE WOULD HAVE TO BE IMPOSED AT THAT POINT, BASED UPON Page 3


June 14 07 Tr
13 THE GUIDELINE SENTENCE, CONSISTENT WITH WHAT I PREVIOUSLY
14 RULED AS TO WHY A GUIDELINE SENTENCE WAS APPROPRIATE, AND
15 THAT THAT SENTENCE WOULD ALSO BE AN AGGREGATE SENTENCE
16 ENCOMPASSING ALL OF THE OFFENSES.
17 SO THE SENTENCE WOULD BE THE 30-MONTH SENTENCE, AS
18 PREVIOUSLY INDICATED. AND THE OTHER ASPECTS OF THE
19 SENTENCE, AS I PREVIOUSLY INDICATED REGARDING SUPERVISED
20 RELEASE, WOULD BE IMPOSED CONSISTENT WITH WHAT I PREVIOUSLY
21 INDICATED.
22 IS THERE ANYTHING ON THAT?
23 FITZGERALD: JUDGE, WE WOULD AGREE. I TAKE IT
24 IT IS 30 MONTHS ON EACH COUNT, BUT THEY RUN CONCURRENTLY
25 THE COURT: WELL, I AM BEING TOLD I REALLY DON'T
1 HAVE TO DO THAT BECAUSE THE OFFENSES ARE GROUPED UNDER THE
2 GUIDELINES AND THAT A 30-MONTH SENTENCE IS IMPOSED, WHICH
3 DOES, I GUESS, THEORETICALLY, YES, APPLY TO ALL OF THE
4 SENTENCES, ALTHOUGH, OBVIOUSLY, SINCE THE SENTENCE I AM
5 IMPOSING OF 30 MONTHS IS BASED UPON THE CROSS-REFERENCING
6 REQUIREMENT, THAT IF THERE IS A NEED FOR RESENTENCING, BASED
7 UPON A CONCLUSION THAT CROSS-REFERENCING WASN'T APPROPRIATE,
8 THEN THERE WOULD HAVE TO BE A RECALCULATION AND AND A NEW
9 AGGREGATE SENTENCE WOULD BE IMPOSED, WHICH WOULD BE LOWER,
10 THAT WOULD ALSO GROUP ALL OF THE OFFENSES TOGETHER. THAT'S
11 WHAT I AM BEING TOLD BY PROBATION IS THE APPROPRIATE THING
12 TO DO.
13 MRE FITZGERALD: RIGHT, YOUR HONOR. MY
14 UNDERSTANDING IS THAT ONCE THE AGGREGATE SENTENCE GROUPING,
15 IT'S APPLIED TO EACH COUNT.
16 THE COURT: THAT'S RIGHT.
17 MR, FITZGERALD: BUT IF IT IS REVERSED FOR THE Page 4


June 14 07 Tr
18 SENTENCING, THEN ALL COUNTS ARE REVERSED, AND WE START ALL
19 OVER AGAIN.
20 THE COURT: THAT'S CORRECT.
21 MR. FITZGERALD: AND THEY WOULD RUN CONCURRENTLY.
22 SO WE ARE NOT ADDING TO THE SENTENCE.
23 THE COURT: THAT'S CORRECT.
24 FOR THE SAKE ALSO OF FULL DISCLOSURE, I WILL
25 ADVISE COUNSEL OF THE FACT THAT, UNFORTUNATELY, BUT I GUESS
1 IT'S THE TIMES IN WHICH WE LIVE, I HAVE RECEIVED A NUMBER OF
2 VERY HARASSING AND ANGRY AND MEAN-SPIRITED PHONE CALLS AND
3 LETTERS IN REFERENCE TO THE SENTENCE.
4 ALSO, ON THE OTHER SIDE, OTHER LETTERS OF A
5 DIFFERENT NATURE. SOME OF THOSE RELATED TO WISHING BAD
6 THINGS UPON ME AND MY FAMILY.
7 OBVIOUSLY, I FIND THAT VERY TROUBLINGE HOWEVER,
8 THOSE TYPES OF THINGS CANNOT AND WILL NOT HAVE ANY IMPACT ON
9 THE DECISIONS I HAVE TO RENDER,
10 I DID THROW AWAY, INITIALLY, A LOT OF THOSE
11 LETTERS, BUT AFTER RECEIVING MORE THAT WERE EVEN MORE
12 HATEFUL THAN OTHERS, I DECIDED IT WAS APPROPRIATE TO RETAIN
13 THOSE IN THE EVENT SOMETHING DID HAPPEN AND THAT CONCEIVABLY
14 WHOEVER MAY HAVE BEEN RESPONSIBLE FOR ANY ACTIONS COULD BE
15 IDENTIFIEDE
16 OKAY. LET'S PROCEED.
17 MR. ROBBINS: MAY IT PLEASE THE COURT. I AM LARRY
18 ROBBINS, REPRESENTING MR. LIBBY. AND WITH THE COURT'S
19 PERMISSION, I WOULD LIKE TO RESERVE FIVE OF THE MINUTES THAT
20 THE COURT ALLOCATED FOR REBUTTAL.
21 THE COURT: BEFORE YOU START, THERE IS ONE THING I
Page 5


June 14 07 Tr
22 GUESS I WOULD LIKE TO INQUIRE ABOUT. I DON'T KNOW TO WHAT
23 EXTENT YOU WERE INVOLVED IN DRAFTING ANY OF THE PLEADINGS,
24 INCLUDING THE REPLY, BUT I GUESS I WAS A LITTLE PERPLEXED AS
25 TO WHAT WAS BEING SUGGESTED IN THE FIRST FOOTNOTE OF THE
1 REPLY, WHICH MENTIONS A NUMBER OF INDIVIDUALS WHO WERE
2 PREVIOUSLY CONVICTED OF WHITE-COLLAR OFFENSES, WHO WERE
3 RELEASED BY OTHER COURTS, BUT YET THERE WAS NO INDICATION IN
4 THAT FOOTNOTE WHAT THE PREDICATE FOR RELEASE WAS, BASED UPON
5 LEGAL ISSUES THAT MAY HAVE EXISTED IN THOSE CASES.
6 SO I DON'T KNOW IF IT IS BEING SUGGESTED THAT JUST
7 BECAUSE OTHER JUDGES HAVE DEEMED IT APPROPRIATE, FOR
8 WHATEVER REASON, TO RELEASE PEOPLE, THAT THAT MEANS I AM
9 SOMEHOW OBLIGATED TO DO THE SAME THING JUST BECAUSE SOMEBODY
10 WAS CONVICTED OF A WHITE-COLLAR OFFENSE.
11 I WOULD ASSUME THAT COUNSEL WOULD NOT BE MAKING
12 THAT SUGGESTION BECAUSE, CLEARLY, UNDER THE STATUTE, I AM
13 REQUIRED TO DETAIN SOMEONE IF THEY DON'T MAKE THE
14 APPROPRIATE FINDINGS. LIKEWISE, OBVIOUSLY, I AM REQUIRED TO
15 RELEASE THEM IF THEY DO MAKE THE APPROPRIATE FINDINGS.
16 SO I HOPE IT'S NOT BEING SUGGESTED BY JUST
17 THROWING OUT THESE NAMES THAT SOMEHOW, IN WHITE-COLLAR
18 CASES, THAT JUDGES SHOULD OVERLOOK WHAT THE LAW IS AND JUST
19 RELEASE PEOPLE WILLY-NILLY JUST BECAUSE THEY HAPPEN TO BE
20 WHITE-COLLAR OFFENSES.
21 I CAN'T BUY IN ON THAT, IF THAT'S BEING SUGGESTED,
22 BECAUSE I THINK BLUE-COLLAR CRIMINALS ARE ENTITLED TO THE
23 SAME QUALITY OF JUSTICE AS WHITE-COLLAR CRIMINALS AREE
24 MR. ROBBINS: I AGREE WITH THE COURT'S SENTIMENT
25 EMPHATICALLY. THE POINT OF FOOTNOTE ONE IS THAT THESE CASES
Page 6


June 14 07 Tr
8
0
1 ILLUSTRATE TWO THINGS THAT ARE GERMANE TO THE QUESTION
2 BEFORE THE COURT THIS MORNINGE THE FIRST IS THAT THE ISSUE
3 OF WHETHER THERE IS A SUBSTANTIAL QUESTION ON APPEAL TURNS
4 ON WHETHER IT IS A CLOSE QUESTION. AND, RELATEDLY --
5 RELATEDLY, WHETHER IT IS CLOSE DOES NOT DEPEND ON A DISTRICT
6 JUDGE CONCLUDING THAT HE MADE A MISTAKE IN THE DISTRICT
7 COURT.
8 THE COURT: I UNDERSTAND, BUT THE FOOTNOTE ITSELF
9 DOES NOT IDENTIFY WHAT PARTICULAR ISSUES WERE INVOLVED IN
10 THOSE CASES THAT CAUSED THE COURTS TO CONCLUDE -- WHICH I
11 ASSUME THEY CONCLUDED -- THAT THERE WAS A CLOSE ISSUE.
12 MR. ROBBINS: RIGHT.
13 THE COURT: THROWING OUT THE NAMES WOULD SEEM TO
14 SUGGEST THAT SOMEHOW BECAUSE INDIVIDUALS ARE OF NOTORIETY
15 AND BECAUSE THEY'RE WHITE-COLLAR CRIMINALS, THAT JUDGES
16 SHOULD OVERLOOK THE LAW AND JUST RELEASE THEM, REGARDLESS OF
17 WHETHER OR NOT
18 MR. ROBBINS: NO. AND I'M SURE -- THOUGH I DIDN'T
19 SIGN THE BRIEF -- I AM CONFIDENT THAT THE POINT OF THAT
20 FOOTNOTE WAS, IN FACT, THAT EVEN WHERE DISTRICT JUDGES HAVE
21 OPENLY STATED THAT THEY DON'T HAVE ANY DOUBTS THAT THEY WERE
22 CORRECT AND DON'T HAVE SECOND THOUGHTS ABOUT THEIR JUDGMENT,
23 NEVERTHELESS, THEY RECOGNIZE THAT REASONABLE JUDGES COULD
24 DISAGREE.
25 THE COURT: YOU DON'T HAVE TO CONVINCE ME ON THAT.
1 I UNDERSTAND THAT. I UNDERSTAND WHAT THE LAW IS. I
2 UNDERSTAND IF IT IS A CLOSE QUESTION OR IF IT IS CONCEIVABLE
3 THE APPELLATE COURT COULD SEE IT DIFFERENTLY, THAT I HAVE TO
Page 7
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June 14 07 Tr
4 RELEASE WITHOUT DETERMINING THAT I MADE A MISTAKE.
5 MR. ROBBINS: RIGHT.
6 THE COURT: I APPRECIATE THAT.
7 MR. ROBBINS: AND THAT'S REALLY WHERE I WOULD LIKE
8 TO BEGIN THE ARGUMENT BECAUSE I THINK, IN FACT, YOUR HONOR
9 THERE ARE THREE SUCH ISSUES THAT WE HAVE PRESENTED THAT ARE,
10 AT THE VERY LEASE, CLOSE QUESTIONS.
11 I WANT TO DEVOTE MOST OF MY TIME TO JUST ONE OF
12 THOSE AND THEN TOUCH ON THE OTHER TWO BRIEFLY. AND THE ONE
13 I WANT TO DWELL ON AT LENGTH IS THE APPOINTMENTS-CLAUSE
14 QUESTION.
15 AND I WANT TO MAKE SIX POINTS ABOUT OUR POSITION
16 ON THE APPOINTMENTS CLAUSE, EACH ONE OF WHICH, I SUGGEST,
17 YOUR HONOR, DEMONSTRATES THAT THIS IS, TO SAY THE LEAST, A
18 CLOSE QUESTION, A FAIRLY DEBATABLE QUESTION ON WHICH THE
19 DE C. CIRCUIT COULD WELL COME OUT THE OTHER WAY.
20 POINT NUMBER ONE. RECALL THAT THE STANDARD IS:
21 IS IT A CLOSE QUESTION, WHICH IF RESOLVED IN THE DEFENDANT'S
22 FAVOR, WOULD RESULT IN A NEW TRIAL OR DISMISSAL?
23 WITH RESPECT TO THE APPOINTMENTS CLAUSE, THE
24 SECOND INQUIRY -- THAT IS TO SAY: IS THIS THE KIND OF
25 QUESTION WHICH, IF WE PREVAIL ON, WILL RESULT IN A NEW TRIAL
1 OR DISMISSAL? THERE CAN BE NO FAIRLY DOUBTING THAT.
2 IF WE ARE RIGHT, THAT IS TO SAY, ON THE
3 APPOINTMENTS-CLAUSE ISSUE, IT WILL NOT BE SUBJECT TO
4 HARMLESS ERROR.
5 THE COURT: I THINK I AGREE WITH THAT,
6 MR. ROBBINS: ALL RIGHT. THAT BEING SAID THEN, THE
7 ONLY QUESTION THIS MORNING IS: IS THIS CLOSE? IS IT A
8 CLOSE CALL?
Page 8


June 14 07 Tr
9 LET ME TELL YOU WHY I THINK IT IS. THE SECOND
10 POINT. IF THE D. C. CIRCUIT AGREES WITH US THAT THE
11 QUESTION BEFORE THE COURT ON THE APPOINTMENTS CLAUSE IS
12 CONTROLLED BY EDMOND AGAINST THE UNITED STATES -- IF THEY
13 CONCLUDE THAT THAT IS THE CONTROLLING AUTHORITY, IT IS
14 HIGHLY LIKELY THAT THEY WILL REVERSE THE CONVICTIONS IN THIS
15 CASE.
16 THE COURT: COUNSEL, YOU SUGGEST THAT THE
17 DISTRICT OF COLUMBIA CIRCUIT WOULD HAVE THE AUTHORITY TO
18 CONCLUDE THAT EDMOND OVERRULED MORRISON BECAUSE MORRISON IS
19 STILL GOOD LAW. AND IF MORRISON IS GOOD LAW, THEN IT SEEMS
20 TO ME I HAVE TO APPLY MORRISON OR EDMOND, DEPENDING UPON
21 WHAT THE FACTUAL CIRCUMSTANCES ARE.
22 MR. ROBBINS: YOUR HONOR, IT IS A FALSE DICHOTOMYE
23 WE DON'T CONTEND, AND IT IS NOT AT ALL ESSENTIAL TO OUR
24 ARGUMENT THAT EDMOND OVERRULES MORRISON. I DON'T KNOW THAT
25 IT DOES. I DO THINK EDMOND CLARIFIES MORRISON IN IMPORTANT
1 WAYS. BUT FOR OUR ARGUMENT THIS MORNING, LET ME BE AS CLEAR
2 AS I CAN. WE PREVAIL UNDER MORRISON. WE PREVAIL UNDER
3 EDMONDE BUT IT IS ABSOLUTELY CLEAR THAT WE PREVAIL UNDER
4 EDMOND.
5 THE COURT: YOUR FIRST POSITION MAY BE MORE
6 CONVINCING TO ME BECAUSE I AM NOT PREPARED TO OVERLOOK
7 MORRISON AND CONCLUDE THAT WHAT THE COURT SAID IN EDMOND IS
8 WHAT I HAVE TO APPLY.
9 MR. ROBBINS: YOUR HONOR, I AM GOING TO TURN TO
10 MORRISON A LITTLE BIT LATER IN MY ARGUMENT, AND YOU WILL SEE
11 THAT FAR FROM ASKING YOU TO IGNORE MORRISON, WE BELIEVE THAT
12 IN IMPORTANT RESPECTS, THIS CASE IS DIFFERENT IN WAYS THAT Page 9


June 14 07 Tr
13 MAKE THE CASE UNDER THE APPOINTMENTS CLAUSE BETTER, NOT
14 WORSE FOR US.
15 BUT LET ME START WITH EDMOND BECAUSE, AT THE VERY
16 LEAST, IT IS THE MOST RECENT AND AUTHORITATIVE STATEMENT
17 FROM THE SUPREME COURT ABOUT WHAT THE APPOINTMENTS CLAUSE IS
18 ALL ABOUT.
19 AND THE COURT COULD NOT HAVE BEEN PLAINER, YOUR
20 HONOR, WHEN IT SAID THAT INFERIOR OFFICERS ARE OFFICERS
21 WHOSE WORK IS, QUOTE, DIRECTED AND SUPERVISED AT SOME LEVEL
22 BY OTHERS WHO ARE APPOINTED BY PRESIDENTIAL NOMINATION WITH
23 THE ADVICE AND CONSENT OF THE SENATE. NOTHING COULD BE
24 PLAINER THAN THAT SPECIAL COUNSEL FITZGERALD WAS EXPRESSLY
25 RELIEVED OF SUPERVISION AND CONTROL BY, QUOTE, ANY OFFICER
1 OF THE DEPARTMENT. THOSE ARE THE PRECISE WORDS OF HIS
2 APPOINTMENT ON 12/30/2003.
3 AND THIS COURT ITSELF, IN ITS DETAILED RULING ON
4 THE APPOINTMENTS-CLAUSE ISSUE, RECOGNIZED THAT THE QUESTION
5 OF WHETHER SPECIAL COUNSEL FITZGERALD IS AN INFERIOR OFFICER
6 UNDER EDMOND IS A, QUOTE, MUCH MORE DIFFICULT QUESTION
7 BECAUSE, AS YOUR HONOR POINTED OUT, HIS WORK IS, QUOTE,
8 CONDUCTED LARGELY WITHOUT DIRECTION AND CONTROL.
9 SO THE FIRST POINT I WANT TO MAKE ABOUT THE
10 CLOSENESS OF THIS QUESTION IS THAT IF THE D. C. CIRCUIT
11 REGARDS EDMOND, THE MOST RECENT SUPREME COURT CASE ON POINT,
12 AS GOVERNING AUTHORITY, IT IS SUBSTANTIALLY LIKELY TO
13 REVERSE BECAUSE THERE IS NO PLAUSIBLE ARGUMENT, IN MY
14 VIEW -- NO GENUINELY PLAUSIBLE ARGUMENT THAT MR. FITZGERALD
15 WAS DIRECTED AND SUPERVISED AT SOME LEVEL.
16 THE COURT: WOULDN'T THE CIRCUIT HAVE TO
17 CONCLUDE -- WHICH I DON'T THINK THEY CAN DO WITHOUT THE Page 10


June 14 07 Tr
18 SUPREME COURT TELLING THEM THAT THEY CAN -- THAT EDMOND
19 OVERRULED MORRISON?
20 MR. ROBBINS: NO, YOUR HONOR. I KNOW THIS POINT
21 TROUBLES THE COURT. LET ME BE CLEAR. I AM GOING TO TALK
22 ABOUT MORRISON IN A MINUTE.
23 THE D. C. CIRCUIT, WHEN IT SITS DOWN TO DECIDE
24 THIS QUESTION, YOUR HONOR, IS GOING TO HAVE TWO PRECEDENTS
25 IN FRONT OF THEM. THEY ARE GOING TO HAVE MORRISON, AND THEY
1 ARE GOING TO HAVE EDMOND. AND THEY ARE GOING TO READ THEM
2 BOTH, AND THEY ARE GOING TO ATTEMPT TO APPLY THEM BOTH.
3 WE ARE NOT SUGGESTING, JUDGE -- LET ME BE
4 ABSOLUTELY CLEAR ON THIS. WE ARE NOT SUGGESTING THAT EDMOND
5 OVERRULES MORRISON, AND I AM GOING TO TALK ABOUT MORRISON
6 IN A MOMENT. BUT WHEN THEY READ EDMOND, THEY ARE NOT GOING
7 TO MISS THE LANGUAGE OF JUSTICE SCALIA'S OPINION WHERE HE
8 SAYS THAT THE BEST WAY TO UNDERSTAND WHAT IT MEANS TO BE AN
9 INFERIOR OFFICER IS THAT YOU ARE DIRECTED AND SUPERVISED AT
10 SOME LEVEL BY A PRINCIPAL OFFICER, SOMEONE APPOINTED BY THE
11 PRESIDENT AND CONFIRMED BY THE SENATE.
12 WHEN THEY READ THOSE WORDS, THEY ARE GOING TO THEN
13 COMPARE THE APPOINTING LETTER OF ACTING ATTORNEY GENERAL
14 COMEY, AND THEY ARE GOING TO SEE THAT MR, FITZGERALD WAS
15 EXPRESSLY EXEMPTED -- INSULATED. INDEED, IT WAS THE VERY
16 POINT OF HIS APPOINTMENT TO INSULATE HIM FROM THE DIRECTION
17 AND SUPERVISION.
18 SO, YOUR HONOR, IF THE D.C. CIRCUIT CONCLUDES THAT
19 JUSTICE SCALIA MEANT WHAT HE SAID, WE'RE GOING TO WINE
20 THE COURT: WELL, THE SEVERAL CIRCUIT COURTS WHO
21 HAVE CONSIDERED THE ISSUE POST-EDMOND AND HAVE SOUGHT TO Page 11


June 14 07 Tr
22 RECONCILE MORRISON AND EDMOND DON'T COME OUT WHERE YOU ARE.
23 MR. ROBBINS: WELL, NO, I DON'T THINK THAT IS
24 CORRECT. WHAT THEY SAY IS THAT, WELL, MAYBE THE WAY TO
25 RECONCILE THIS IS THAT DIRECTION AND CONTROL IS SUFFICIENT,
1 BUT NOT NECESSARY. THAT'S THE LANGUAGE THAT YOUR HONOR
2 QUOTED FROM A 9TH CIRCUIT CASE AND REFERRING ALSO TO A FIRST
3 CIRCUIT CASEE
4 I DON'T THINK THE D. C. CIRCUIT IS GOING TO
5 RECONCILE THEM IN THAT WAY.
6 THE COURT: IT SEEMS TO ME THE MORE PLAUSIBLE
7 RULING OR THE MORE PLAUSIBLE WAY THAT THE D. C. CIRCUIT
8 WOULD RECONCILE WHAT WAS SAID IN THOSE TWO CASES, WHICH I
9 THINK IS WHAT THE STATE OF THE LAW IS, IS THAT YOU HAVE TO
10 LOOK. AT THE PARTICULAR CIRCUMSTANCES THAT APPLY IN A
11 PARTICULAR CASE, AND DEPENDING UPON THOSE CIRCUMSTANCES,
12 DIFFERENT FACTORS MAY COME INTO PLAY THAT DECIDE WHETHER OR
13 NOT SOMEBODY IS A PRINCIPAL OFFICIAL OR AN INFERIOR
14 OFFICIAL.
15 AND IN THE CONTEXT OF MORRISON, THEY CONSIDERED
16 THE FACTORS THERE TO BE SUFFICIENT TO MAKE MS. MORRISON AN
17 INFERIOR OFFICIAL, BUT IN THE CONTEXT OF EDMOND, THEY LOOKED
18 AT OTHER FACTORS BECAUSE ALL FOUR FACTORS OF MORRISON DID
19 NOT MATCH UP TO WHAT EXISTED IN EDMOND AND, THEREFORE, AS A
20 RESULT OF THAT, APPLIED OTHER FACTORS THAT CAUSED THEM TO
21 CONCLUDE THAT THE MILITARY JUDGES IN EDMOND WERE INFERIOR
22 OFFICERS ALSO.
23 MR. ROBBINS: WELL, YOUR HONOR, THEN LET ME GO
24 DIRECTLY TO THE MORRISON FACTORS. LEAVING EDMOND FOR JUST A
25 MOMENT, THERE IS NO QUESTION THAT IF THE FACTOR THAT WAS
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June 14 07 Tr
1 ESSENTIAL TO EDMOND IS REGARDED AS ESSENTIAL TO THE INQUIRY
2 ALTOGETHER, WE'RE GOING TO WIN.
3 THE COURT: I THINK. ALSO, IN REFERENCE TO WHAT
4 JUSTICE SCALIA SAID IN MORRISON, THAT IF WE HAD A SITUATION
5 WHERE THE SPECIAL COUNSEL COULD BE REMOVED AT WILL, THAT
6 THAT IN AND OF ITSELF, IT SEEMS TO ME YOU COULD ARGUE, WOULD
7 HAVE CHANGED JUSTICE SCALIA'S POSITION IN MORRISON.
8 MR. ROBBINS: WELL, I RATHER SUSPECT NOTHING MUCH
9 WOULD HAVE CHANGED JUSTICE SCALIA'S OPINION IN MORRISON,
10 HAVING HEARD HIM DELIVER IT IN COURT THE DAY THAT THE
11 OPINION CAME DOWNE
12 BUT LET ME TALK ABOUT THE MORRISON FACTORS BECAUSE
13 I THINK. THAT A FAIR UNDERSTANDING OF THE RECORD AND THE
14 LEGAL DOCUMENTS IN THIS CASE WILL PERSUADE -- I BELIEVE WILL
15 ULTIMATELY PERSUADE THE D. C. CIRCUIT, BUT AT LEAST IT IS A
16 CLOSE QUESTION WHETHER THE DECISIVE MORRISON FACTORS APPLY
17 IN THE WAY THAT THE COURT CONCLUDED,
18 AND LET ME START WITH WHAT YOUR HONOR TREATED AS
19 ONE OF THE MOST CRUCIAL ISSUES AND WHAT THE MORRISON COURT
20 THOUGHT WAS A CRUCIAL ISSUE, AND THAT IS THE QUESTION
21 WHETHER MR. FITZGERALD MUST COMPLY WITH ALL INTERNAL D.O.J.
22 POLICIES AND REGULATIONS.
23 INDEPENDENT COUNSEL MORRISON DID HAVE TO COMPLY BY
24 VIRTUE OF SECTION 594(F) OF THE ETHICS IN GOVERNMENT ACT.
25 YOUR HONOR CONCLUDED THAT MR. FITZGERALD ALSO HAS
1 TO COMPLY WITH D.O.J. POLICIES AND REGULATIONSE AND THAT
2 WAS A CRUCIAL LEG OF THIS COURT'S OPINION,
3 I BELIEVE THAT DECISION TO BE INCORRECT, AND I Page 13
15
16


June 14 07 Tr
4 WOULD LIKE TO TAKE A FEW MINUTES AND EXPLAIN WHY BECAUSE, IF
5 I AM RIGHT ABOUT THIS, THE D. C. CIRCUIT WILL HAVE NO
6 TROUBLE EXPLAINING WHY MORRISON FACTORS DO NOT MAKE
7 MR. FITZGERALD AN INFERIOR OFFICER.
8 SO WHY DO I SAY THIS? THE SINGLE CLEAREST PIECE
9 OF EVIDENCE ABOUT WHETHER MR, FITZGERALD HAD TO FOLLOW
10 D.O.J. POLICIES AND PROCEDURES IS, IN FACT, INCLUDED IN A
11 SENTENCE IN THE FEBRUARY 6TH, 2004, CLARIFYING LETTER OF
12 ACTING ATTORNEY GENERAL COMEY.
13 AND, YOUR HONOR, RESPECTFULLY, THAT SENTENCE AND
14 THE INTERPRETATION OF THAT SENTENCE DOES NOT APPEAR IN YOUR
15 HONOR'S RULING WITH RESPECT TO THE APPOINTMENTS CLAUSE.
16 MR. COMEY SAID IN THE FINAL SENTENCE OF HIS
17 CLARIFYING LETTER, "HERE I WANT TO CLARIFY WHAT YOUR POWER
18 IS, MR. FITZGERALD." AND HERE'S WHAT HE SAIDE HE SAID, I
19 DON'T WANT MY REFERENCE TO THE WORD SPECIAL COUNSEL' TO BE
20 UNDERSTOOD AS SUGGESTING THAT YOUR, QUOTE, POSITION AND
21 AUTHORITIES WERE, QUOTE, DEFINED AND LIMITED BY 28
22 C.F.R. 600.
23 THAT IS THE MOST IMPORTANT SENTENCE IN THE
24 DOCUMENT. THAT SENTENCE SAYS, 'LISTEN, MR. FITZGERALD.
25 LISTEN, PAT, MY OLD FRIEND FROM NEW YORKE WHEN YOU ASSUMED
1 THIS NEW JOB, YOUR AUTHORITY IS NOT GOING TO BE DEFINED OR
2 LIMITED BY 28 C.F.RE 600.
3 SO YOU HAVE GOT TO ASK YOURSELF, "WELL, WHAT
4 EXACTLY ARE THE LIMITS IN 28 C.F.R. 600 THAT MR. FITZGERALD
5 HAS JUST BEEN TOLD HE ISN'T GOING TO BE DEFINED OR LIMITED
6 BY?"
7 WELL, YOUR HONOR, I BROUGHT THIS WITH ME FOR THE
8 CONVENIENCE OF THE COURTE I BROUGHT 28 C.F.R. 600. I WOULD
Page 14


June 14 07 Tr
9 BE HAPPY TO HAND IT UP, IF THAT WOULD BE CONVENIENT. I
10 DON'T KNOW WHAT THE PROTOCOL IS. IF I CAN JUST APPROACH AND
11 GIVE YOU A COPYE
12 (PASSING TO THE COURT.)
13 MR. ROBBINS: 28 C.F.R. 600, YOUR HONOR, ARE THE
14 RULES REGARDING INDEPENDENT COUNSEL AND SPECIAL COUNSEL -
15 THE REGULATIONS. SUBSECTION 600E6 SETS FORTH THE POWERS AND
16 AUTHORITY OF AN INDEPENDENT COUNSEL, AND THEN IT SAYS
17 "SUBJECT TO THE LIMITATIONS IN THE FOLLOWING PARAGRAPHS."
18 SO WHEN WE LOOK BENEATH 600.6, WE WILL FIND THE
19 LIMITATIONS THAT MR. COMEY EXPRESSLY SAID, "YOU,
20 MR. FITZGERALD, ARE NOT GOING TO BE DEFINED BY THOSE
21 LIMITS." AND WHAT IS THE VERY FIRST LIMIT THAT HE WAS
22 EXEMPTED FROM. IT'S IN 600.7(A), WHICH REQUIRES AN ORDINARY
23 SPECIAL COUNSEL TO COMPLY WITH D.O.J. POLICY.
24 WHAT IS THE ONE AFTER THAT? 600.8(B), WHICH
25 REQUIRES SPECIAL COUNSEL TO PROVIDE ROUTINE NOTICE TO THE
1 ATTORNEY GENERAL OF SIGNIFICANT EVENTS, ACCORDING TO THE
2 POLICY IN THE D.O.J. MANUAL FOR SO-CALLED URGENT REPORTS.
3 IF YOU LOOK AT THE URGENT-REPORTS PORTION OF THE
4 U.S. ATTORNEY'S MANUAL, YOU WILL FIND THAT ONE OF THE URGENT
5 REPORTS THAT AN ORDINARY SPECIAL COUNSEL -- A REGULAR
6 SPECIAL COUNSEL -- UNDER 28 C.F.RE HAS TO PROVIDE IS ON
7 NATIONAL SECURITY CONCERNS.
8 SO, YOUR HONOR, WHERE DOES THAT LEAVE US AT THE
9 END OF THE DAY? IT LEAVES US IN THE FOLLOWING PLACEE
10 MR. FITZGERALD WAS EXPRESSLY EXEMPTED FROM THE LIMITATIONS
11 OF 28 C.F.R. 600, AND THE LIMITATIONS INCLUDE FOLLOWING
12 D.O.J. POLICY AND PROCEDURE AND MAKING REGULAR REPORTS ON Page 15


June 14 07 Tr
13 SIGNIFICANT PROSECUTORIAL AND INVESTIGATIVE DECISIONS.
14 HE WAS GIVEN THE FREEDOM -- UNPRECEDENTEDLY GIVEN
15 THAT FREEDOME NOT ALEXIA MORRISON. NOT LAWRENCE WALSH, TO
16 MY KNOWLEDGE, NOT ANY INDEPENDENT OR SPECIAL COUNSEL HAS
17 EVER BEEN GIVEN THE EXPRESS EXEMPTION FROM THE POLICIES AND
18 PROCEDURES OF THE JUSTICE DEPARTMENT.
19 YOUR HONOR, I KNOW YOU CAME OUT THE OTHER WAY,
20 BUT, RESPECTFULLY, THERE IS NO PART OF YOUR DECISION THAT
21 RECKONS WITH THIS CRUCIAL SENTENCE. I BELIEVE THAT, TO SAY
22 THE VERY LEAST, THE D.C. CIRCUIT CAN VIEW THAT DIFFERENTLY.
23 NOW, WE COME TO THE NEXT POINT I WANT TO MAKE, AND
24 THERE ARE JUST THREE MORE POINTS I WANT TO MAKE ABOUT THE
25 APPOINTMENTS CLAUSE. I WANT TO TALK ABOUT THE POWER OF
1 REMOVAL BECAUSE YOUR HONOR ADVERTED TO IT THIS MORNING, AND
2 IT IS OBVIOUSLY PROMINENTLY URGED BY THE GOVERNMENT AND IS
3 PART OF YOUR HONOR'S OPINION.
4 AND I THINK IT IS PROBABLY, AT LEAST FOR ARGUMENT
5 SAKE, AT LEAST THEORETICALLY POSSIBLE -- AND I ASSUME
6 PRACTICALLY POSSIBLE -- THAT MR. COMEY COULD, I SUPPOSE HAVE
7 REMOVED MR. FITZGERALD. AND FOR PURPOSES OF TODAY'S
8 ARGUMENT, I DON'T WISH TO SUGGEST THAT HE COULDN'T REMOVE
9 HIM.
10 AND THERE IS NO QUESTION THAT MORRISON, IN
11 ADDITION TO POINTING OUT THE FACT THAT ALEXIA MORRISON WAS
12 REQUIRED TO FOLLOW D.0.3. POLICIES AND PROCEDURES, WHICH
13 MR. FITZGERALD IS NOT AND WAS NOT -- MORRISON DID FOCUS ALSO
14 ON THE REMOVAL POWER, BUT THE ETHICS IN GOVERNMENT ACT, YOUR
15 HONOR, THAT GOVERNED ALEXIA MORRISON SPECIFICALLY REQUIRED
16 HER UNDER 594(F) TO FOLLOW D.O.J. POLICIES. AND ONE OF
17 THOSE POLICIES REQUIRES KEEPING THE ATTORNEY GENERAL POSTED Page 16


June 14 07 Tr
18 ON SIGNIFICANT EVENTS IN THE PROSECUTION.
19 THAT'S JUST CRUCIALLY SIGNIFICANT WHEN YOU THINK
20 OF THE POWER TO REMOVE BECAUSE THE POWER TO REMOVE, WITHOUT
21 THE POWER TO SUPERVISE, WITHOUT THE POWER TO LEARN, WITHOUT
22 LEARNING WHAT EXACTLY THE SPECIAL COUNSEL IS DOING -- THAT I
23 WOULD SUGGEST, YOUR HONOR, IS ALL SHELL AND NO CHOCOLATE.
24 WHAT THAT TELLS YOU IS, "YES, I CAN REMOVE YOU,
25 BUT I AM NEVER GOING TO KNOW WHAT YOU ARE DOING UNLESS YOU
1 HAPPEN TO TELL ME. BUT YOU DON'T HAVE TO TELL ME, NOT LIKE
2 ALEXIA MORRISON, WHO WAS GOVERNED BY THE ETHICS IN
3 GOVERNMENT ACT."
4 THE COURT: WOULDN'T THAT UNDERMINE THE PURPOSE
5 FOR WHICH MR. FITZGERALD WAS BROUGHT INTO THIS CASE? AS THE
6 SUPREME COURT INDICATED IN MORRISON, ONE OF THE IMPORTANT
7 THINGS THAT HAS TO EXIST IN OUR SYSTEM OF GOVERNMENT, IF THE
8 PEOPLE ARE TO RESPECT OUR SYSTEM OF LAWS, IS THAT EVERYBODY
9 IS ACCOUNTABLE UNDER THE LAWS OF THE UNITED STATES,
10 REGARDLESS OF WHO YOU ARE. AND, THEREFORE, IF YOU WORK. IN
11 THE WHITE HOUSE, YOU ARE JUST AS OBLIGATED TO COMPLY WITH
12 THE LAW AS ANYBODY ELSE.
13 AND IF IT'S PERCEIVED THAT THE JUSTICE DEPARTMENT
14 OR THE INVESTIGATIVE AGENCY IS SOMEHOW LINKED AT THE HIP
15 WITH THE WHITE HOUSE, OBVIOUSLY, IT SEEMS TO ME THAT THE
16 AMERICAN PUBLIC WOULD HAVE SERIOUS QUESTIONS ABOUT THE
17 PROPRIETY, OR THE APPROPRIATENESS, OR THE FAIRNESS OF ANY
18 INVESTIGATION CONDUCTED BY THE ATTORNEY GENERAL, AS IT
19 RELATES TO SOMEBODY WHO IS IN A HIGH-LEVEL POSITION, IF THAT
20 PERSON, WHO IS DOING THE INVESTIGATION, HAS TO REPORT TO THE
21 INDIVIDUAL WHO IS TIED AT THE HIP WITH SOMEBODY WHO IS Page 17


June 14 07 Tr
22 ASSOCIATED WITH THE WHITE HOUSE,
23 I MEAN IF THAT IS, IN FACT, GOING TO BE HOW WE
24 HAVE TO OPERATE, IT SEEMS TO ME OUR SYSTEM OF GOVERNMENT IS
25 GOING TO BE IN SERIOUS TROUBLE WITH THOSE PEOPLE WHO ARE THE
1 AVERAGE JOE ON THE STREET, WHO THINKS THAT THE SYSTEM IS
2 UNFAIR ALREADY, IF THEY KNOW THAT THE INVESTIGATIVE AGENCY
3 WHO IS INVESTIGATING SOMEBODY WHO IS CLOSE TO THE
4 WHITE HOUSE OR IN THE WHITE HOUSE IS GOING TO HAVE TO REPORT
5 TO THAT PERSON BEFORE THEY CAN TAKE ACTION,
6 MR. ROBBINS: YOUR HONOR, RESPECTFULLY, I KNOW THIS
7 IS A POINT OF CONCERN TO THE COURT, BUT, WITH RESPECT, I
8 BELIEVE IT TO BE A RED HERRING. I DON'T THINK ANYBODY
9 BELIEVES FOR A SECOND THAT LAWRENCE WALSH LACKED
10 INDEPENDENCE WHEN HE INDICTED CASPAR WEINBERGER SIMPLY
11 BECAUSE HE, TOO, WAS BOUND TO MAKE REPORTS TO THE ATTORNEY
12 GENERAL AND TO FOLLOW D.O.J. POLICY.
13 I DON'T THINK ANYBODY BELIEVES FOR A SECOND THAT
14 ALEXIA MORRISON WASN'T SUFFICIENTLY INDEPENDENT WHEN SHE
15 BROUGHT CHARGES AGAINST TED OLSON, I DON'T THINK ANYBODY
16 BELIEVES THAT THE OBLIGATION TO FOLLOW D.O,J, POLICY AND
17 PROCEDURES AND TO REPORT ON SIGNIFICANT EVENTS, NONE OF
18 WHICH, I RESPECTFULLY SUGGEST, MR. FITZGERALD WAS REQUIRED
19 TO DO --
20 THE COURT: THAT WAS A LITTLE DIFFERENT, WASN'T
21 IT? I MEAN IN THOSE OTHER SITUATIONS, YES, I UNDERSTAND
22 CASPAR WEINBERGER HELD A SIGNIFICANT POSITION IN THE
23 GOVERNMENT, BUT HERE IT WAS SUSPECTED THAT SOMEBODY WHO
24 LEAKED THIS INFORMATION MAY WELL HAVE BEEN IN THE WHITE
25 HOUSE AND CONCEIVABLY IN AN EXTREMELY HIGH-LEVEL POSITIONE
Page 18


June 14 07 Tr
22
0
1 MR. ROBBINS: I ALSO RATHER DOUBT THAT ANYBODY
2 WOULD HAVE THOUGHT THAT IF MR. FITZGERALD HAD AN OBLIGATION
3 TO REPORT OCCASIONALLY TO MR. COMEY AND TO FOLLOW D.O.J.
4 POLICIES, THAT THE INTEGRITY OF THE INVESTIGATION WOULD HAVE
5 BEEN COMPROMISEDE BUT, YOUR HONOR, ULTIMATELY --
6 THE COURT: YOU ARE TALKING ABOUT TWO DIFFERENT
7 THINGS. REGARDING FOLLOWING D.O.J, POLICY, I THINK THAT IS
8 CRUCIAL.
9 MR. ROBBINS: BUT PART OF D.O.J. POLICY IN THE
10 U.S. ATTORNEY'S MANUAL IS THE OBLIGATION TO REPORT
11 SIGNIFICANT EVENTS.
12 IN 28 C.F.R. 600, THERE IS THE OBLIGATION TO
13 REPORT SIGNIFICANT EVENTS. BUT, YOUR HONOR, I WOULD LIKE TO
14 STEP BACK AND CHALLENGE THE PREMISE. THE FACT OF THE MATTER
15 IS OUR SYSTEM IS DESIGNED CONSTITUTIONALLY FOR POLITICAL
16 ACCOUNTABILITY. AND THE ULTIMATE CHECK -- THE ULTIMATE
17 VEHICLE FOR POLITICAL ACCOUNTABILITY IS THAT THE PRESIDENT
18 MUST TAKE CARE THAT THE LAWS BE EXECUTED AND THAT HE HAS TO
19 STAND BEFORE THE VOTERS EVERY FOUR YEARS.
20 THAT IS THE WAY ARTICLE II, SECTION 2, CLAUSE 2
21 PROVIDES FOR ACCOUNTABILITY.
22 SOMETIMES, YOUR HONOR, THAT MAKES THINGS A LITTLE
23 BIT INCONVENIENT, BUT THE WAY OUR SYSTEM FUNCTIONS IS THAT
24 THAT, OBEYING THE CONSTITUTION AND NOT TAKING SHORTCUTS FOR
25 POLITICAL APPEARANCE SAKE, IS THE WAY ACCOUNTABILITY WORKS.
1 NOW, I KNOW MY TIME IS DWINDLING.
2 THE COURT: I WILL GIVE YOU FIVE MORE MINUTES AND
3 THEN FIVE MORE MINUTES AFTER THAT BECAUSE IT DID TAKE A FEW Page 19
23


June 14 07 Tr
4 MINUTES FOR ME TO ASK YOU QUESTIONS.
5 MR. ROBBINS: OKAYE LET ME TALK VERY QUICKLY
6 ABOUT THE LAST TWO POINTS ABOUT THE APPOINTMENTS CLAUSE.
7 AND I WILL TRY AND COVER THEM QUICKLY.
8 MR. FITZGERALD HAS THE BROADEST DELEGATION OF
9 PROSECUTORIAL AUTHORITY OF ANY INDEPENDENT COUNSEL OR
10 SPECIAL COUNSEL I KNOW OF IN A VERY CRITICAL RESPECT, WHICH,
11 AGAIN, YOUR HONOR'S OPINION DOES NOT RECKON WITH,
12 UNDER THE ETHICS IN GOVERNMENT ACT -- ALEXIA
13 MORRISON, IN THE MORRISON CASE -- SHE DID NOT HAVE THE
14 POWER, UNDER THE STATUTE, TO PROSECUTE CASES THAT WERE
15 RELATED TO THE JURISDICTION SHE WAS GIVEN.
16 AS A MATTER OF FACT, THE COURT RECALLS THE
17 MORRISON OPINION -- THIS PORTION OF IT. THE CHIEF JUSTICE
18 TALKS ABOUT HOW SHE HAD TO GO TO THE ATTORNEY GENERAL AND
19 ASK TO BE GIVEN THE RIGHT TO PROSECUTE TWO RELATED CASES
20 THAT HE HAD NOT GIVEN HER: DEPUTY ATTORNEY GENERAL SCHMULTS
21 AND ASSISTANT ATTORNEY GENERAL FOR THE LANDS DIVISION, CAROL
22 DINKINS. SHE ASKED, "PLEASE GIVE ME THE AUTHORITY TO
23 PROSECUTE RELATED CASES."
24 THE COURT: YOU SAY RELATED CASES?
25 MR. ROBBINS: RELATED CASES.
1 THE COURT: YOU SAY HE HAD THE AUTHORITY TO
2 PROSECUTE RELATED CASES. WHAT DO YOU MEAN BY THAT?
3 MR. ROBBINS: THAT MR. FITZGERALD DID?
4 THE COURT: YES, BECAUSE RELATED CASES CAN MEAN A
5 LOT OF DIFFERENT THINGS. WE'RE DEBATING THE ISSUE
6 INTERNALLY WITHIN THIS COURT AS TO WHAT "RELATED CASES"
7 MEANS.
8 MR. ROBBINS: WELL, YOUR HONOR, I CAN TELL YOU Page 20


June 14 07 Tr
9 THAT THE EXPLICIT TERMS OF HIS APPOINTMENT GAVE HIM NOT ONLY
10 THE CASES OF CRIMES COMMITTED TO OBSTRUCT THE INVESTIGATION,
11 WHICH EVEN ALEXIA MORRISON WAS GIVEN, BUT THE AUTHORITY TO
12 PROSECUTE RELATED CASES. THAT HE WOULD NOT HAVE TO COME
13 BACK --
14 THE COURT: WHAT LANGUAGE? THE WORD "RELATED" IS
15 USED?
16 MR. ROBBINS: YES, YOU BET YOU. IT IS RIGHT IN THE
17 2-6 LETTER, CLARIFYING THE SCOPE OF HIS POWERE IT FIRST
18 SAYS: YOUR POWER IS PLENARY. YOU HAVE ALL THE POWER OF THE
19 ATTORNEY GENERAL AND THAT IS, QUOTE, PLENARY.
20 AND THEN IT SAYS -- IT INCLUDES THE AUTHORITY.
21 AND I AM JUST READING FROM THE FEBRUARY 6TH LETTER -- "THE
22 AUTHORITY TO INVESTIGATE AND PROSECUTE VIOLATIONS OF ANY
23 FEDERAL CRIMINAL LAWS RELATED TO THE UNDERLYING ALLEGED
24 UNAUTHORIZED DISCLOSURE."
25 "RELATED TO" IS ABOUT AS BROAD AS LEGAL LANGUAGE
1 GETS. AS A MATTER OF FACT, I WAS RECALLING LAST NIGHT WHEN
2 I WAS PREPARING FOR ARGUMENT A PIECE OF A CONCURRING OPINION
3 BY JUSTICE SCALIA IN A CASE CALLED DILLINGHAM CONSTRUCTION
4 IN WHICH HE SAID "RELATED TO" IS SUCH BROAD LANGUAGE.
5 HE SAYS, "AS MANY A CURBSTONE PHILOSOPHER HAS
6 OBSERVED, EVERYTHING IS RELATED TO EVERYTHING ELSE."
7 HAVING "RELATED TO" JURISDICTION IS EXACTLY WHAT
8 ALEXIA MORRISON ASKED FOR AND WAS REFUSED, BOTH BY THE
9 ATTORNEY GENERAL AND BY THE SPECIAL DIVISION THAT APPOINTED
10 HER. THAT POWER, UNPRECEDENTED
11 THE COURT: WHAT SPECIFICALLY WAS SHE REQUESTING
12 AUTHORITY TO INVESTIGATE?
Page 21


June 14 07 Tr
13 MR. ROBBINS: SHE WANTED TO INVESTIGATE THE, QUOTE,
14 RELATED CASES OF CAROL DINKINS AND ED SCHMULTS. AND THE
15 ATTORNEY GENERAL SAID, "NO. I AM NOT GIVING YOU THOSEE"
16 THE COURT: SHE WAS SUGGESTING THEY WERE RELATED
17 IN WHAT RESPECT?
18 MR. ROBBINS: SHE SAID THAT THEY ARE PART OF AN
19 ONGOING CONSPIRACY -- AS SHE SUGGESTED, AN ONGOING
20 CONSPIRACY TO OBSTRUCT THE CONGRESSIONAL OVERSIGHT POWER.
21 "I NEED," SHE SAID, "TO INVESTIGATE ALL OF THE PERPETRATORS
22 BECAUSE THEY ARE RELATED. SO GIVE ME THE RELATED CASES."
23 AND THE ATTORNEY GENERAL SAID, "NO, YOU DON'T HAVE THE
24 RELATED CASES. YOU'RE NOT GETTING THEM."
25 SHE WENT TO THE SPECIAL DIVISION. THEY SAID, "WE
1 DON'T EVEN HAVE THE AUTHORITY TO SECOND-GUESS THAT
2 JUDGMENT,"
3 MR. FITZGERALD, AS I JUST READ YOU, WAS EXPRESSLY
4 GIVEN THE RELATED AUTHORITYE
5 NOW, LET ME JUST STOP FOR A MINUTE SO I DON'T
6 FORGET TO MENTION -- THE QUESTION ON THE TABLE, YOUR HONOR,
7 IS NOT WHETHER THE ARGUMENTS I AM MAKING TO YOU ARE GOING TO
8 ULTIMATELY PREVAIL IN THE D. C. CIRCUIT, ALTHOUGH I THINK
9 THEY WILL. THE QUESTION IS WHETHER THEY ARE CLOSE
10 QUESTIONS. AND I JUST DON'T THINK IT'S FAIRLY DEBATABLE
11 THAT THEY ARE.
12 NOW, I WANT TO MAKE ONE LAST POINT, AND THAT IS A
13 VERY PRACTICAL ONE UNDER THE APPOINTMENTS CLAUSE BECAUSE
14 WHAT HAPPENS WHEN SOMEBODY HAS NO SUPERVISOR, WHEN SOMEBODY
15 DOESN'T HAVE TO REPORT TO ANYONE, WHEN SOMEONE DOESN'T HAVE
16 TO FOLLOW D.O.J. POLICIES AND PROCEDURES, AND WHEN HE HAS
17 BEEN GIVEN THE SINGLE WIDEST SWATH OF AUTHORITY THAT ALEXIA Page 22


June 14 07 Tr
18 MORRISON COULD ONLY HAVE DREAMED OF GETTING -- WHEN SOMEONE
19 HAS ALL OF THOSE THINGS, SOMETIMES THINGS GO WRONG.
20 AND THIS IS THE LAST POINT I WANT TO MAKE. UNDER
21 SECTION 6(c)(2) OF THE CLASSIFIED INFORMATION PROCEDURES
22 ACT, THE ATTORNEY GENERAL IS EMPOWERED TO OBJECT TO THE
23 DISCLOSURE OF CLASSIFIED INFORMATION, AND WHEN HE WANTS TO,
24 HE HAS TO SUBMIT AN AFFIDAVIT NOTIFYING THE COURT THAT THE
25 DISCLOSURE, QUOTE, WOULD CAUSE IDENTIFIABLE DAMAGE TO THE
1 NATIONAL SECURITY.
2 IN THIS CASE, MR. FITZGERALD, WEARING HIS ATTORNEY
3 GENERAL HAT, SUBMITTED SUCH AN AFFIDAVIT TO THE COURT. I
4 HAVE A COPY OF IT HERE, IF THE COURT WISHES TO SEE IT. HE
5 SUBMITTED THAT BECAUSE HE UNDERSTOOD HIMSELF TO HAVE BEEN
6 GIVEN, I ASSUME, ALL THE PLENARY POWER OF THE ATTORNEY
7 GENERAL,
8 THE COURT: BUT DON'T WE HAVE TO LOOK AT WHAT
9 AUTHORITY WAS GIVEN TO HIM AT THE TIME HE WAS BROUGHT INTO
10 THE CASE? THE ISSUE REGARDING CIPA AND ITS POTENTIAL
11 APPLICATION TO THIS CASE DIDN'T OCCUR UNTIL AT SOME LATER
12 POINT WHEN MR. LIBBY RAISED THE ISSUE ABOUT HIS NEED TO USE
13 CLASSIFIED INFORMATION IN HIS DEFENSE.
14 MR. ROBBINS: I UNDERSTAND, YOUR HONOR, BUT WHAT I
15 AM ABOUT TO TELL YOU IS THE KIND OF THING THAT GOES WRONG
16 WHEN THE LINES OF AUTHORITY GET BLURRED AND WHEN NO ONE HAS
17 A SUPERVISOR AND HAS ALL THIS POWER TO BOOT.
18 I WANT TO SHOW YOU SECTION 14 OF THE CLASSIFIED
19 INFORMATION PROCEDURES ACT, SECTION 14, YOUR HONOR,
20 PROVIDES AS FOLLOWS IN WORDS THAT REALLY BROOK NO SERIOUS
21 CONTRADICTION:
Page 23


June 14 07 Tr
22 THE FUNCTIONS AND DUTIES OF THE ATTORNEY GENERAL
23 UNDER THIS ACT MAY BE EXERCISED BY THE DEPUTY ATTORNEY
24 GENERAL, THE ASSOCIATE ATTORNEY GENERAL, OR BY AN ASSISTANT
25 ATTORNEY GENERAL DESIGNATED BY THE ATTORNEY GENERAL FOR SUCH
1 PURPOSE AND MAY NOT BE DELEGATED TO ANY OTHER OFFICIAL.
2 THE ONLY PLAUSIBLE WAY TO UNDERSTAND THAT CLEAR
3 CONGRESSIONAL COMMAND TS THAT CONGRESS WANTED THREE PEOPLE
4 THAT IT HAD LOOKED IN THE EYE FOR THE JOB THEY HELD -- NOT
5 AS THE U.S. ATTORNEY IN CHICAGO, BUT AS THE REAL ATTORNEY
6 GENERAL, THE REAL DEPUTY ATTORNEY GENERAL, THE REAL
7 ASSISTANT ATTORNEY GENERAL, AND IT SAID, "YOU WERE THE GUYS
8 WHO CAN MAKE THESE KINDS OF SENSITIVE CLASSIFIED-INFORMATION
9 DECISIONS. NOBODY ELSE. NOBODY WHO IS JUST ATTORNEY
10 GENERAL FOR A DAY. THESE FELLOWS AND NOBODY ELSE.
11 BUT YOUR HONOR GOT A 6(C)(2) AFFIDAVIT FROM
12 MR. FITZGERALD. NOW, I DON'T BLAME HIM. HE THINKS THAT HE
13 IS THE ATTORNEY GENERAL. AND GIVEN THE TERMS OF HIS
14 APPOINTMENT, I DON'T BLAME HIM. HE IS NOT DOING ANYTHING
15 WRONG.
16 THE COURT: OKAY. BE THAT AS IT MAY -- AND THERE
17 MAY BE A PROBLEM IN THIS REGARD, BUT AS I UNDERSTAND WHAT
18 OCCURRED HERE, YOUR CLIENT, THROUGH HIS COUNSEL, DID NOT
19 SUBMIT THE REQUEST TO THE ATTORNEY GENERAL OR THE DEPUTY
20 ATTORNEY GENERAL, BUT SUBMITTED IT TO MR. FITZGERALD.
21 MR. ROBBINS: DID NOT SUBMIT WHAT REQUEST?
22 THE COURT: IN REFERENCE TO THEIR CIPA REQUEST.
23 THEY REQUESTED TO USE CLASSIFIED INFORMATION.
24 MR. ROBBINS: OH, NO, YOUR HONOR.
25 THE COURT: BY NOT RAISING THIS ISSUE ABOUT
Page 24


June 14 07 Tr
1 MR. FITZGERALD NOT BEING THE APPROPRIATE PERSON TO BE
2 INVOLVED IN THE CIPA PROCESS, WAS IT WAIVED?
3 MR. ROBBINS: YOUR HONOR, FORGIVE ME. NUMBER ONE,
4 TO MY KNOWLEDGE -- AND I WASN'T, AS THE COURT KNOWS, PART OF
5 THE TRIAL TEAM, AND I HAVE ONLY RECENTLY JUST GOTTEN MY CIPA
6 CLEARANCE. BUT THE FACT OF THE MATTER IS MY UNDERSTANDING
7 IS THIS IS A DOCUMENT THAT WAS ONLY DECLASSIFIED IN REDACTED
8 FORM AND MADE AVAILABLE AFTER THE TRIAL WAS OVER IS MY
9 UNDERSTANDING.
10 NOW, I YIELD TO THE GUYS WHO TRIED THE CASE, IF
11 THERE IS A CLARIFICATION. BUT THIS WAS A 6(0(2) AFFIDAVIT,
12 YOUR HONOR. IT IS SOMETHING THAT IS SUBMITTED WHEN THE
13 GOVERNMENT IS DISSATISFIED WITH THE SUBSTITUTIONS THAT THE
14 COURT HAS ALREADY ARRIVED AT THROUGH THE CIPA PROCESS. AND
15 THIS IS SUPPOSED TO BE AN ATTORNEY GENERAL'S AFFIDAVIT.
16 AS A MATTER OF FACT, LAWRENCE WALSH WENT TO
17 ATTORNEY GENERAL THORNBURGH TO GET ONE OF THESE AFFIDAVITS
18 IN THE FERNANDEZ CASE. AND THE FOURTH CIRCUIT IN FERNANDEZ
19 SAID, ESSENTIALLY, "YOU, LAWRENCE WALSH, HAVE CERTAIN
20 AUTHORITIES UNDER" --
21 THE COURT: BUT I THINK YOUR CLIENT, THROUGH
22 COUNSEL, KNEW THAT THIS HAD BEEN SUBMITTED.
23 MR. ROBBINS: I YIELD TO THEM, BUT I RATHER DOUBT
24 IT.
25 MR. JEFFRESS: THE SITUATION AS I RECALL, YOUR
1 HONOR, IS THIS: NUMBER ONE, A REQUEST UNDER CIPA, AS YOUR
2 HONOR WILL RECALL, UNDER SECTION 5 AND SECTION 4 IS MADE TO
3 THE COURT. THE AFFIDAVIT IN QUESTION WAS SUBMITTED Page 25


June 14 07 Tr
4 IN CAMERA. WE NEVER SAW IT.
5 THE COURT: IT STILL EXISTED.
6 JEFFRESS: WE ASSUMED THAT AN AFFIDAVIT HAD BEEN
7 SUBMITTED BECAUSE AN AFFIDAVIT NEEDS TO BE SUBMITTED.
8 WHETHER THAT WAS BY THE C,I.A. OR BY MR. FITZGERALD, WE
9 DIDN'T KNOW.
10 IT HAS RECENTLY BEEN UNSEALED. YOUR HONOR ORDERED
11 THAT THINGS THAT COULD BE UNSEALED, BE UNSEALED. AND WE DID
12 OBTAIN IT IN THE LAST COUPLE OF MONTHS, I BELIEVE, IN MAY.
13 THE COURT: THANK YOU.
14 WE HAD FIVE MINUTES. YOU ARE USING UP YOUR TIME.
15 MR. ROBBINS: ALL RIGHT. WELL, I WILL THEN JUST
16 SAY, VERY QUICKLY, WE HAVE SUBMITTED IN OUR PAPERS, YOUR
17 HONOR, REASONS WHY WE THINK THE MEMORY RULINGS AND THE
18 ANDREA MITCHELL RULINGS ALSO ARE CLOSE QUESTIONS.
19 AND SINCE I HAVE 30 SECONDS, I HOPE, LEFT, LET ME
20 JUST SAY THIS. WITH RESPECT TO THE MITCHELL RULING, I THINK
21 THERE IS VIRTUALLY NO CHANCE -- BUT IT IS AT LEAST A CLOSE
22 QUESTION -- THAT THE D. C. CIRCUIT WILL REGARD ITS DECISION
23 IN U.S. AGAINST JOHNSON, WHICH GOVERNED WHAT A PROSECUTOR
24 DOES WHEN IT OFFERS AN INADMISSIBLE POST-ARREST, IN-CUSTODY
25 STATEMENT, SHIFTING BLAME TO THE DEFENDANT -- I THINK THERE
1 IS VIRTUALLY NO CHANCE THAT THE D. C. CIRCUIT WILL THINK
2 THAT IT ANNOUNCED A RULE IN JOHNSON THAT PROHIBITS A
3 DEFENDANT, WHO, AFTER ALL, HAS 6TH AMENDMENT RIGHTS, AS THE
4 GOVERNMENT DOES NOT -- PROHIBITS A DEFENDANT FROM CALLING A
5 WITNESS TO IMPEACH THAT WITNESS WITH A PRIOR INCONSISTENT
6 STATEMENT EVEN THOUGH THE WITNESS HAS SAID SHE INTENDS TO
7 DISAVOW THE STATEMENT. I DON'T THINK THEY'RE GOING TO THINK
8 JOHNSON CONTROLS.
Page 26


June 14 07 Tr
9 THE COURT: EVEN IF YOU ARE CORRECT IN THAT
10 REGARD, THE PROBLEM WITH THE MITCHELL TESTIMONY, AS I SAW
11 IT -- OR PROPOSED TESTIMONY -- IS THAT IT WAS ASKING OR
12 GOING TO BE ASKING THE JURY TO DRAW INFERENCE, UPON
13 INFERENCE, UPON INFERENCE, WHICH, IN MY VIEW, WOULD HAVE LED
14 THEM INTO NOTHING BUT RANK SPECULATION IN ORDER TO USE HER
15 TESTIMONY FOR THE PURPOSE FOR WHICH MR. LIBBY WANTED TO USE
16 IT.
17 HE WANTED TO CALL HER. SHE WOULD SAY -- AND IT IS
18 CLEAR THAT SHE WOULD SAY, REGARDLESS OF WHAT IS BEING
19 SUGGESTED NOW, BECAUSE HER ATTORNEY CAME FORWARD AND
20 INDICATED, WITHOUT ANY RESERVATION, THAT IF SHE WOULD BE
21 CALLED TO TESTIFY, SHE WOULD SAY THAT THIS STATEMENT THAT
22 SHE MADE ON IMUS WAS OFF-THE-WALL, SHE DIDN'T KNOW WHY SHE
23 HAD MADE IT, IT WAS CLEARLY INCORRECT, AND THAT SHE KNEW
24 NOTHING ABOUT MS. PLAME'S ASSOCIATION WITH THE C.I.A. UNTIL
25 AFTER THE NOVAK ARTICLE WAS PUBLISHED.
1 SO SHE WOULD HAVE BEEN CALLED, SHE WOULD HAVE
2 BEEN ASKED ABOUT THAT STATEMENT. SHE WOULD HAVE DISAVOWED
3 IT, SHE WOULD HAVE THEN BEEN IMPEACHED.
4 AND WHAT YOUR CLIENT THEN WANTED TO HAPPEN AT THAT
5 POINT, DESPITE THE FACT THAT SHE WAS SAYING, "I DID NOT MEAN
6 TO SAY THAT AND, THEREFORE, DID NOT KNOW ABOUT MS. PLAME'S
7 SITUATION UNTIL THE NOVAK ARTICLE WAS WRITTEN" -- THEN YOUR
8 CLIENT WAS GOING TO ASK THE JURY TO DO THIS -- TO SAY,
9 "WELL, MAYBE SHE IS NOT BEING TRUTHFUL. MAYBE SHE DID KNOW
10 ABOUT MS. FLAME'S ASSOCIATION WITH THE C.I.A. BEFORE THE
11 NOVAK ARTICLE."
12 IF SHE DID, BECAUSE SHE WORKED WITH MR, RUSSERT, Page 27


June 14 07 Tr
13 IT'S CONCEIVABLE THAT SHE WOULD HAVE TOLD MR. RUSSERT ABOUT
14 IT, AND BECAUSE IT'S CONCEIVABLE THAT SHE WOULD HAVE TOLD
15 MR. RUSSERT ABOUT IT, THAT MR. RUSSERT THEN WOULD HAVE HAD A
16 FACTUAL BASIS TO SAY WHAT YOUR CLIENT SAID MR. RUSSERT SAID
17 TO HIM.
18 1 MEAN IF WE ARE GOING TO GO DOWN THAT ROAD AND IF
19 WE'RE GOING TO BE TOLD AS TRIAL JUDGE WE'VE GOT TO LET IN
20 THAT TYPE OF STUFF, WE MIGHT AS WELL DO AWAY WITH THE RULES
21 OF EVIDENCE AND JUST LET IT BE A FREE-FOR-ALL AND WE JUST
22 SIT HERE, I GUESS, AS A BUMP ON A LOG.
23 THAT CANNOT BE THE LAW. IT CANNOT BE APPROPRIATE
24 FOR A JURY TO HAVE INFERENCE UPON INFERENCE AND COME UP WITH
25 WHAT ENDS UP BEING, IN MY VIEW, RANK SPECULATION IN
1 ASSESSING WHETHER OR NOT SOMETHING PURPORTEDLY OCCURRED.
2 IF THE SHOE WAS ON THE OTHER FOOT, AND THE
3 GOVERNMENT WAS SEEKING TO TRY AND DO THAT, I THINK IT WOULD
4 CLEARLY BE REVERSIBLE ERROR. AND I DON'T THINK A DEFENDANT
5 HAS A RIGHT TO RELY UPON THAT TYPE OF EVIDENCE TO ANY
6 GREATER EXTENT THAN WHAT THE GOVERNMENT DOES.
7 MR. ROBBINS: WELL, YOUR HONOR, I DON'T WANT TO --
8 THE COURT: I UNDERSTAND YOUR POSITION
9 MR. ROBBINS: ALL RIGHT.
10 THE COURT: I READ THE PAPERS.
11 MR. ROBBINS: I KNOW YOU HAVE READ THE BRIEF, AND
12 YOU HAVE READ THE ARGUMENTS ON THE MEMORY ISSUES. LET ME
13 THEN END BY MAKING ONE POINT, AGAIN, ON THE APPOINTMENTS
14 CLAUSE, AND IT IS THIS, YOUR HONOR HAS RECEIVED AN AMICUS
15 BRIEF FROM TWELVE LAW PROFESSORS WHO HAVE SPENT THEIR
16 CAREERS THINKING ABOUT QUESTIONS JUST LIKE THIS.
17 THE COURT: AND I MUST SAY, COUNSEL, WITH ALL DUE Page 28


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18 RESPECT, THEY ARE VERY BRIGHT PEOPLE -- THERE IS NO
19 QUESTION -- BUT THE SUBMISSION WAS NOT SOMETHING THAT I
20 WOULD EXPECT FROM A FIRST-YEAR LAW STUDENT, TO BE HONEST.
21 MR. ROBBINS: WELL, YOUR HONOR --
22 THE COURT: I THINK, TO BE VERY CANDID, BECAUSE I
23 BELIEVE IN BEING TRANSPARENT IN MY THINKING -- I THINK IT
24 WAS SUBMITTED, CONSIDERING THE NATURE AND THE SUBSTANCE OF
25 WHAT WAS SUBMITTED, FOR THE SOLE PURPOSE OF THROWING THEIR
1 NAMES OUT THERE WITH THE HOPE THAT SOMEHOW THAT WOULD CAUSE
2 ME TO FEEL PRESSURED TO REACH A DECISION CONSISTENT WITH
3 WHAT I AM BEING ASKED TO REACH FROM THE DEFENSE PERSPECTIVE,
4 JUST BECAUSE THEY SAID THAT THIS IS A CLOSE ISSUE.
5 MR. ROBBINS: YOUR HONOR, LOOK, I AM NOT GOING TO
6 BE ABLE TO TELL YOUR HONOR HOW TO CONSTRUE THE BRIEF AND
7 WHAT TO THINK OF IT.
8 THE COURT: I THINK YOUR OTHER ARGUMENTS ARE
9 POTENTIALLY VERY CONVINCING. I WILL HAVE TO HEAR FROM THE
10 GOVERNMENT, BUT THE FACT THAT THESE TWELVE PROFESSORS CAME
11 FORWARD, AS I SAY, CONSIDERING THE SUBSTANCE OF WHAT THEY
12 PRESENTED, IS NOT GOING TO BE CONVINCING TO ME. MAYBE THE
13 OTHER THINGS YOU SAID MAY BE BECAUSE I THINK THEY MAY CREATE
14 SOME REAL ISSUES.
15 MR. ROBBINS: WELL, YOUR HONOR, I DON'T WANT TO
16 BELABOR THE POINT, BUT I DO THINK THAT IT IS MEANINGFUL THAT
17 TWELVE SCHOLARS ACROSS THE POLITICAL AISLES, WHO PROBABLY
18 COULDN'T AGREE ON THE BEST WAY TO GIVE CHANGE FOR A NICKEL,
19 NEVERTHELESS BELIEVE THAT THIS IS A CLOSE QUESTION THAT
20 PEOPLE IN GOOD FAITH AND IN ALL GOOD SOLID REASONING AND
21 LEGAL REASONING COULD DISAGREE ABOUT. I THINK THAT IS Page 29


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22 TELLING YOU SOMETHING THAT IS WORTH LISTENING TO.
23 THE COURT: I GUESS IF I GOT SOMETHING MORE OF
24 SUBSTANCE FROM THEM, MAYBE.
25 MR. ROBBINS: WELL, MAYBE THEY DIDN'T FEEL THE
1 NEED TO REPEAT ARGUMENTS THAT WERE BEING MADE BY THE PARTY.
2 THAT IS COMMON FOR AMICI.
3 THE COURT: MAYBE.
4 MR. ROBBINS: THANK YOU»
5 MR. FITZGERALD: GOOD MORNING, YOUR HONOR.
6 I WILL BE SHARING THE ARGUMENT WITH MS. BONAMICI.
7 I JUST WANT TO MAKE A FEW BRIEF FACTUAL POINTS.
8 IN REFERENCE TO THIS NOTION OF MR. COMEY'S LETTER
9 OF CLARIFICATION TO ME AND MAKING CLEAR THAT 28 C.F.R. 600
10 DIDN'T APPLY TO ME, IT WAS INDICATED THAT THE FIRST THING
11 THAT EXCEPTS ME WAS AT 600.7.
12 ACTUALLY, THE FIRST THINGS THAT EXCEPTS ME IS THE
13 FACT THAT ALL THAT LETTER SAYS IS THAT THE TITLE "SPECIAL
14 COUNSEL" DOESN'T MEAN SPECIAL COUNSEL UNDER THIS REG., NOR
15 COULD IT, BECAUSE 600.3 HAS A SENTENCE IN HERE, IT SAYS:
16 THE SPECIAL COUNSEL SHALL BE SELECTED FROM OUTSIDE THE
17 UNITED STATES GOVERNMENT.
18 SO IF I HAD BEEN SELECTED PURSUANT TO THAT REG., I
19 WOULD HAVE TO QUIT MY OTHER JOB.
20 SO THIS IS A REGULATION THAT APPLIES TO PEOPLE WHO
21 ARE ACTING AS SPECIAL COUNSEL, WHO ARE NOT MEMBERS OF THE
22 DEPARTMENT OF JUSTICE.
23 SO THIS READING TO SAY THAT YOUR JOB IS NOT
24 DEFINED OR LIMITED BY 28 C.F.R. 600 IS TO END ANY CONFUSION
25 THERE WAS OUT THERE AS TO WHETHER OR NOT I WAS A SPECIAL
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36
0
1 COUNSEL UNDER THE REG. I WAS NOT. I WAS THEN A SITTING
2 UNITED STATES ATTORNEY. I HAVE NOT LEAVING MY JOB, AND AS
3 YOUR HONOR PREVIOUSLY FOUND, I WAS BOUND BY THE RULES OF
4 D.O.3.
5 THE SECOND FACTUAL MATTER I WANT TO CLARIFY IS
6 WITH REGARD TO CIPA. COUNSEL POINTED OUT THAT IN SECTION
7 6(E), THERE COMES A POINT IN TIME WHERE IF A JUDGE WAS TO
8 SAY AT THE END OF THE CIPA PROCEEDINGS, "CLASSIFIED
9 INFORMATION MUST BE DISCLOSED AS PART OF THE TRIAL," THEN
10 THE PROVISION PROVIDES THAT THE UNITED STATES, THROUGH THE
11 ATTORNEY GENERAL, CAN MAKE A DECISION WHETHER TO SEEK AN
12 ORDER THAT BASICALLY BARS A DEFENDANT FROM DISCLOSING IT.
13 YOUR HONOR HAS TO DECIDE WHAT SANCTIONS TO IMPOSE,
14 WHETHER IT'S DISMISSAL OR SOME OTHER SANCTION.
15 THAT NEVER CAME TO PASS. THE ONLY THINGS THAT
16 WERE FILED THAT REFER TO THE ATTORNEY GENERAL WERE UNDER
17 6(A) AND 6(C). AND THEY ARE THE MOST TECHNICAL FILINGS.
18 UNDER 6(A) IT WAS A CERTIFICATION THAT A PUBLIC PROCEEDING
19 MIGHT RESULT IN THE DISCLOSURE OF CLASSIFIED INFORMATION.
20 THAT WAS TRANSPARENT. WE HAD A MONTH-LONG HEARING
21 WHERE WE DISCUSSED CLASSIFIED INFORMATION -- SOMETIMES
22 EXTREMELY CLASSIFIED INFORMATION, AND THAT WAS A
23 CERTIFICATION TO CLOSE THE COURTROOM.
24 IF SOMEONE HAD OBJECTED AT THE TIME -- AND MY
25 BELIEF, YOUR HONOR, IS THAT THAT WAS FILED UNDER PACER. THE
1 6(A) FILING FROM SEPTEMBER 5TH, 2006, I DO NOT BELIEVE WAS
2 EX PARTE.
3 IF SOMEONE HAD OBJECTED, NOT ONLY COULD WE HAVE Page 31
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4 GOTTEN A DIFFERENT SIGNATURE. AN ASSISTANT U. S. ATTORNEY
5 CAN ASK YOUR HONOR TO CLOSE THE COURTROOM SO THE GREAT
6 POWER OF 6(A) WAS TO TELL YOUR HONOR THAT WHEN WE DISCUSSED
7 CLASSIFIED INFORMATION IN THE COURTROOM, IF THE COURTROOM
8 WASN'T CLOSED, THAT MIGHT CAUSE A PUBLIC DISCLOSURE OF
9 CLASSIFIED INFORMATION.
10 THE COURT: BUT DO YOU THINK YOU WERE IN FULL
11 COMPLIANCE WITH WHAT WAS ENVISIONED BY CIPA BY THE MANNER IN
12 WHICH THE CIPA PROCEEDINGS WERE CONDUCTED?
13 MR. FITZGERALD: YOUR HONOR, I THINK WE WERE IN
14 COMPLIANCE WITH CIPA IF WE'RE FOCUSING ON THE TWO THINGS
15 THAT WERE SIGNED BY MY NAME AS THE ATTORNEY GENERAL.
16 IF SOMEONE HAD OBJECTED AND IF YOU WERE TO FIND
17 THAT THIS WAS NOT A POWER THAT COULD BE DELEGATED UNDER THE
18 C.F.R., THEN THE RESULT WOULD HAVE BEEN -- IN A SITUATION
19 WHERE THE DEFENDANT WASN'T OPPOSING A CLOSED HEARING, WE
20 COULD HAVE GONE AND GOTTEN A SECOND SIGNATURE TO SAY, "WHEN
21 YOU HAVE A HEARING DISCUSSING CLASSIFIED INFORMATION, IF
22 IT'S PUBLIC, IT WILL BE DISCLOSED," OR WE COULD HAVE MADE AN
23 APPLICATION UNDER OTHER AUTHORITY TO CLOSE THE COURTROOM.
24 WE ARE PICKING ON THE MOST TECHNICAL VIOLATION TO
25 COME BACK LATER AND SAY AFTER A TRIAL, "GOTCHA. A DIFFERENT
1 PERSON SHOULD HAVE SIGNED THE REQUEST THAT SAID WHEN YOU
2 HAVE A HEARING INVOLVING CLASSIFIED INFORMATION -- IT WILL
3 BE DISCLOSED OTHERWISE
4 THE COURT: IF THERE WAS A VIOLATION, WHAT IS YOUR
5 SUGGESTION AS TO WHAT THE REMEDY IS?
6 MR. FITZGERALD: HERE THE REMEDY WOULD BE -- A
7 VIOLATION OF CIPA -- THE REMEDY WOULD BE -- ONE, I THINK IT
8 WOULD BE WAIVED BECAUSE I BELIEVE THIS WAS PUBLICLY Page 32


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9 DOCKETED. THIS WAS PULLED UP FROM PACER. IT WAS NOT A
10 CLASSIFIED DOCUMENT.
11 THE 6(A) FILING WAS FILED IN, I BELIEVE,
12 SEPTEMBER, 2006. IT WAS NOT CLASSIFIED, AND IT WAS SIGNED
13 BY ME.
14 IF SOMEONE HAD OBJECTED AND YOUR HONOR RULED THAT
15 I COULDN'T MAKE THAT FILING, WE COULD HAVE THEN GONE AND HAD
16 SOMEONE ELSE SIGN IT. AN ASSISTANT ATTORNEY GENERAL FOR THE
17 TAX DIVISION COULD HAVE SIGNED IT.
18 OTHER PEOPLE WHO ARE INFERIOR OFFICERS COULD HAVE
19 SIGNED IT, OR I COULD HAVE MADE AN APPLICATION THAT I'VE
20 MADE, NOT JUST AS UNITED STATES ATTORNEY, TO CLOSE THE
21 COURTROOM.
22 THE COURT: I ASSUME, HOWEVER, THAT THE SUGGESTION
23 THAT IS BEING MADE BY THE DEFENDANT IS THAT, AT LEAST BY
24 IMPLICATION, CONSIDERING THE SCOPE OF AUTHORITY THAT WAS
25 GIVEN TO YOU, THAT YOU WERE GIVEN THE AUTHORITY, BY
1 INFERENCE, TO HANDLE CIPA MATTERS, EVEN THOUGH IT WOULD NOT
2 HAVE BEEN CLEAR AT THE TIME OF THE DELEGATION OF AUTHORITY
3 THAT CIPA WAS GOING TO BE IN PLAY.
4 MR. FITZGERALD: YOUR HONOR, AS PROSECUTORS, YOU
5 HANDLE CIPA MATTERS. AS U.S. ATTORNEY, YOU HANDLE CIPA
6 MATTERS,
7 THE ONE THING THEY ARE COMPLAINING ABOUT IS THE
8 6(A) FILING AND THE 6(E) FILING. BUT IN DESCRIBING THOSE,
9 THEY MISDESCRIBE THE 6(C) FILING AS IF IT WAS 6(E).
10 THE FILINGS THAT WERE MADE -- 6(A) WAS THE FIRST
11 ONE, WHICH I BELIEVE THE DEFENSE RECEIVED A COPY OF. IT WAS
12 NOT EX PARTE. IT WAS NOT CLASSIFIED. IT WAS ONE THAT Page 33


June 14 07 Tr
13 SIMPLY SAID THE COURTROOM SHOULD BE CLOSED. THAT'S ALL IT
14 SAID.
15 6(C) WAS A FILING BASED UPON THE AFFIDAVIT OF
16 SOMEONE ELSE, POINTING OUT THAT WAS AN OPTIONAL FILING UNDER
17 6(0(2) THAT SAID WE CAN SUBMIT AN AFFIDAVIT CERTIFYING THAT
18 THE DISCLOSURE OF CLASSIFIED INFORMATION WOULD CAUSE
19 IDENTIFIABLE DAMAGE. BY DEFINITION, DISCLOSING CLASSIFIED
20 INFORMATION CAUSES DAMAGES TO NATIONAL SECURITY.
21 THE 6(E) FILING THAT THEY TALK ABOUT WAS NOT MADE.
22 WE NEVER GOT TO THE POINT WHERE THERE WAS A DISCUSSION OF
23 WHETHER THE CASE MUST BE DISMISSED IN LIGHT OF THE CIPA
24 RULINGS, MY ONLY POINT BEING THESE ARE THE MOST MINOR
25 MINISTERIAL ACTS OF CERTIFYING THAT THE COURTROOM SHOULD BE
1 CLOSED. AND, IN FACT, IT CAN'T BE THE SORT OF POWER THAT
2 WOULD CHANGE ANYTHING. ASSISTANT U. S. ATTORNEY'S CLOSE
3 COURTROOMS EVERY DAY.
4 THE COURT: I MEAN THERE ARE CIPA PROCEEDINGS THAT
5 HAVE BEEN CONDUCTED IN VARIOUS COURTS THROUGHOUT THE
6 COUNTRY. I WOULD ASSUME THAT IN THE CONTEXT OF THOSE CASES,
7 SOMEBODY FROM THE ATTORNEY GENERAL'S OFFICE, WHO IS
8 DESIGNATED IN THE CIPA STATUTE, DOESN'T COME INTO THE
9 DISTRICT AND LITIGATE THE CIPA QUESTION.
10 MR. FITZGERALD: THAT'S CORRECT, YOUR HONOR. I
11 LITIGATED CIPA AS AN ASSISTANT U.S. ATTORNEY.
12 THE COURT: SO THE ONLY THING THAT SOMEBODY
13 DESIGNATED IN THE STATUTE DOES THAT DIDN'T HAPPEN HERE WOULD
14 BE THE FILING OF THE 6(C)?
15 MR, FITZGERALD: ONE PART OF THE 6(A). JUST THE
16 REQUEST THAT THE 6(A) BE UNDER SEAL IS SPECIFIED TO BE THE
17 ATTORNEY GENERAL OR THE PEOPLE THAT IT CAN BE DELEGATED TO, Page 34


June 14 07 Tr
18 WITHOUT GETTING INTO THE QUESTION OF WHO DO WE DELEGATE IT
19 TO.
20 THE 6(C) JUST EXPLAINS THAT YOU WANT A
21 SUBSTITUTION HEARING BECAUSE CLASSIFIED INFORMATION IS
22 INVOLVED, EVERYTHING ELSE IS CONDUCTED BY ASSISTANT U.S.
23 ATTORNEYS APPROPRIATELY, NOT JUST U.S. ATTORNEYS. AND THE
24 6(E), WHICH WAS NOT SOMETHING THAT HAPPENED IN THIS CASE.
25 SO WHAT WE ARE TALKING ABOUT IS IN REGULAR CASES
1 IN CHICAGO AND IN NEW YORK., THE U.S. ATTORNEYS DON'T CONDUCT
2 CIPA HEARINGS. THEY'RE CONDUCTED BY ASSISTANT U. S.
3 ATTORNEYS. YOU CAN WALK INTO A COURT AND ARGUE THOSE
4 THINGS.
5 THE ALLEGED ERROR -- THE ALLEGED TECHNICAL
6 VIOLATION OF CIPA WAS THAT I SIGNED THE FORM THAT SAID WHEN
7 WE DISCUSS CLASSIFIED INFORMATION, THE COURTROOM SHOULD BE
8 CLOSED, AND WHEN I SIGNED THE AFFIDAVIT THAT WAS ON TOP OF
9 THE C.I.A. DECLARATION, EXPLAINING WHY THINGS WERE
10 CLASSIFIED, BOTH OF WHICH YOUR HONOR COULD RECEIVE FROM
11 ASSISTANT U.S. ATTORNEYS, A REQUEST TO CLOSE THE COURTROOM
12 OR EXPLAIN SOMETHING EX PARTE.
13 THE COURT: I GUESS WHAT IS BEING SUGGESTED
14 REGARDING THE CIPA MATTER IS THE FACT THAT SINCE YOU DID
15 SIGN SOMETHING THAT CONCEIVABLY YOU HAD NO AUTHORITY TO
16 SIGN, THAT THAT'S REFLECTIVE OF THE EXTENT OF THE AUTHORITY
17 GIVEN TO YOU, RELATING BACK TO WHEN THAT DELEGATION
18 OCCURRED, AND, THEREFORE, THAT WOULD BE SUGGESTIVE OF THE
19 FACT THAT THERE WAS AUTHORITY GIVEN TO YOU THAT MADE YOU A
20 PRINCIPAL OFFICIAL.
21 MR. FITZGERALD: THE AUTHORITY GIVEN TO ME DIDN'T Page 35


June 14 07 Tr
22 SPECIFY CIPA, YOUR HONOR, SO IF THERE WAS AN ERROR -- IF I
23 OVERSTEPPED MY BOUNDS BY SIGNING TWO TYPES OF MINISTERIAL
24 FORMS THAT SHOULDN'T HAVE BEEN DONE, THAT DOESN'T GO TO THE
25 APPOINTMENT.
1 THE COURT: I THINK I WOULD AGREE THAT THE
2 SUBSEQUENT ACT THAT WAS COMMITTED WOULD NOT BE REFLECTIVE OF
3 THE ACTUAL AUTHORITY GIVEN. HOWEVER, ONE MAY BE ABLE TO
4 INFER THAT THAT AUTHORITY WAS GIVEN, BASED UPON THE FACT
5 THAT YOU DID IT, BECAUSE I ASSUME YOU WOULDN'T HAVE DONE
6 SOMETHING THAT YOU KNEW YOU DIDN'T HAVE THE AUTHORITY TO DO.
7 MR. FITZGERALD: MY POINT, YOUR HONOR, IS IF THE
8 DEFENSE -- I DON'T BELIEVE THEY LEARNED AFTERWARD -- IF THE
9 DEFENSE THOUGHT THAT THIS WAS AN OBVIOUS ERROR, WE COULD
10 HAVE ADDRESSED IT THEN BECAUSE I AM NOT CONCEDING THAT IT
11 CAN'T BE DELEGATED. THE ATTORNEY GENERAL CAN DELEGATE A
12 POWER.
13 BUT WHATEVER IT IS, IF THERE WAS VIOLATION IN
14 FILLING OUT THIS MINISTERIAL ACT, TO SAY THAT I SIGNED IN
15 ONE CAPACITY WHERE I COULD HAVE SIGNED TO ASK THE COURT TO
16 CLOSE THE COURTROOM WITHOUT INVOKING CIPA -- WE CAN DO THAT
17 WITHOUT CIPA, AND THEN SUDDENLY IF I HAD DONE THAT
18 AUTHORITY, THAT THAT IS THE DIFFERENCE BETWEEN WHETHER OR
19 NOT, AFTER A TRIAL, A CONVICTION GETS REVERSED.
20 WE ARE GETTING INTO A TECHNICAL VIOLATION OF CIPA
21 FOR WHICH THERE, IT SEEM TO ME, IS CLEARLY BOTH WAIVER AND
22 HARMLESS ERROR.
23 IF I HAD GONE AND GOTTEN A SECOND SIGNATURE BY
24 SOMEONE ASKING TO CERTIFY THE COURTROOM BE CLOSED, OR I'D
25 MADE A REQUEST IN A CAPACITY UNDER OTHER PROVISIONS THAT
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43
0
1 CLOSE THE COURTROOM -- WE CAN'T TURN AROUND AND HAVE THE
2 DEFENSE BE ON NOTICE FROM THE FILING IN 6(A), SAY NOTHING
3 ABOUT IT, DO NOTHING ABOUT IT AND THEN GO THROUGH A WHOLE
4 TRIAL AND SAY A PERJURY CONVICTION DOESN'T STAND.
5 THE COURT: WHAT ABOUT THE RELATED-AUTHORITY
6 MATTER?
7 MR. FITZGERALD: THE RELATED AUTHORITY, YOUR
8 HONOR -- IN THE MORRISON CASE, MS. MORRISON WAS APPOINTED
9 INVESTIGATE WHETHER OR NOT A SPECIFIC PERSON, MR. OLSON, HAD
10 COMMITTED PERJURY OR NOT.
11 HER MANDATE WAS A PERSON-SPECIFIC MANDATE --
12 INVESTIGATE WHETHER THIS PERSON COMMITTED A CRIME. AND, AS
13 I UNDERSTAND IT, SHE WANTED THEM TO LOOK AT WHETHER OTHER
14 PEOPLE COMMITTED A CRIME.
15 IN THIS CASE, I WASN'T ASKED TO INVESTIGATE A
16 PERSON. I WAS ASKED TO INVESTIGATE A CRIME. AND THE
17 RELATED LANGUAGE IS MERELY SPECIFYING THAT I AM NOT LIMITED
18 TO A SPECIFIC STATUTE AS BETWEEN 421 AND 793.
19 THERE IS A LOT OF POPULAR MISCONCEPTION BY PEOPLE
20 THAT I WAS APPOINTED TO INVESTIGATE A STATUTE. IT WASN'T
21 ANY RELATED MATTERS. IT IS RELATING TO VIOLATIONS RELATING
22 TO THE UNDERLYING OFFENSE OR DISCLOSURE OF CLASSIFIED
23 INFORMATION.
24 SO THAT CLARIFICATION MADE CLEAR THAT I WASN'T
25 APPOINTED TO INVESTIGATE 50 U.S.C. 421. I WAS APPOINTED TO
1 INVESTIGATE VIOLATIONS OF LAW ARISING OUT OF THE DISCLOSURE
2 OF CLASSIFIED INFORMATION. IT WASN'T LIMITED TO 421 VERSUS
3 18 U.S.C. 793 OR OBSTRUCTION. TO ME THEY ARE COMPLETE Page 37
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June 14 07 Tr
4 APPLES AND ORANGES.
5 WHEN ONE PERSON IS TOLD, WHO IS NOT ORDINARILY A
6 DEPARTMENT OF JUSTICE PROSECUTOR, "YOU ARE TO INVESTIGATE
7 ONE PERSON AND DETERMINE WHETHER THEY COMMITTED A CRIME,"
8 FOR THEM NOT TO GO BACK AND ASK, "CAN I INVESTIGATE SOMEONE
9 ELSE" IS VERY DIFFERENT THAN TO SAY, "YOU ARE INVESTIGATING
10 THIS CRIME, AND TO BE CLEAR, OBSTRUCTION FALLS WITHIN IT,"
11 AS IT DID WITH MORRISON, "BUT YOU ARE NOT LIMITED TO A
12 SPECIFIC CLASSIFIED-INFORMATION STATUTE."
13 THE COURT: YOU'RE SAYING THE SCOPE OF YOUR
14 AUTHORITY WAS LIMITED TO INVESTIGATING WHETHER THERE HAD
15 BEEN AN INAPPROPRIATE LEAK OF THE IDENTITY OF A C.I.A.
16 OFFICIAL?
17 MR. FITZGERALD: AND/OR OBSTRUCTION. BUT THE
18 STATUTE THAT WE WOULD CHARGE WASN'T LIMITED.
19 THE COURT: RELATED-OBSTRUCTION CONDUCT REGARDING
20 THAT INVESTIGATION.
21 MR. FITZGERALD: RIGHT, YOUR HONOR. SO IF SOMEONE
22 FOUND A VIOLATION OF SECTION 793 OF TITLE 18, THERE WOULDN'T
23 BE A CLAIM THAT YOU CAN'T CHARGE THAT, AND YOU CAN ONLY
24 CHARGE TITLE 50, WHICH WAS NEVER THE INTENTION. AND THAT'S
25 WHY THE LETTER WAS A CLARIFICATION, JUST TO MAKE CLEAR, BUT
1 IT WASN'T ANY RELATED MATTER. IT WAS THE CRIME -- ANY
2 CRIMES RELATED TO THE DISCLOSURE.
3 THE COURT: WHAT ABOUT THE REPORTING ISSUE,
4 ACCORDING TO THE A. G.?
5 MR. FITZGERALD: YOUR HONOR, FIRST OF ALL, THE
6 NOTION THAT PEOPLE DIDN'T KNOW WHAT I WAS DOING --
7 EVERYTHING WE DID -- WHEN WE WENT TO COURT, IF WE SUBPOENAED
8 REPORTERS, THE WHOLE WORLD KNEW IT. I WAS FIREABLE AT WILL,
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June 14 07 Tr
9 BEYOND THE FACT THAT MR. GONZALES WAS RECUSED.
10 SO TO REPORT TO SOMEONE, WHO USED TO BE THE WHITE
11 HOUSE COUNSEL DURING THE RELEVANT TIME FRAME OF THE
12 EVENTS -- TO THINK THAT WE TAKE A REGULATION WHICH CREATES
13 NO RIGHTS AND THIRD PARTIES -- AS AN INDEPENDENT
14 INVESTIGATOR, I SHOULD GO REPORT TO SOMEONE WHO WORKED IN
15 THE WHITE HOUSE DURING THE TIME THAT THE ACTIVITIES OF THE
16 WHITE HOUSE WERE UNDER INVESTIGATION WOULD BE UPSIDE-DOWN.
17 BUT I AM FIREABLE AT WILL. AND WHAT WE WERE DOING
18 BECAME PUBLIC, AND NO ONE FIRED ME AFTERWARDS. SO THIS
19 NOTION THAT YOU HAVE TO FILE AN URGENT REPORT --
20 THE COURT: AS A U.S. ATTORNEY, ARE YOU REQUIRED
21 BY SOME RULE OR REGULATION OF JUSTICE TO MAKE ONGOING
22 REPORTS TO THE A. G. OR HIS DESIGNEE REGARDING WHAT YOU ARE
23 DOING?
24 MR. FITZGERALD: I CAN'T QUOTE THE EXACT LANGUAGE.
25 WE MAKE URGENT REPORTS ON MATTERS THAT WE THINK PEOPLE
1 SHOULD BE AWARE OF IN CERTAIN CIRCUMSTANCES, BUT WE CAN MAKE
2 VERY SERIOUS CHARGES. WE CAN INDICT 35 PEOPLE FOR A LARGE
3 NARCOTICS ENTERPRISE THAT THEY MAY FACE, BUT WE'RE NOT
4 REQUIRED TO REPORT THAT.
5 THE COURT: ARE THERE REGULATIONS -- OUTSIDE OF
6 WHAT WE ARE TALKING ABOUT HERE IN 28 C.F.R. 600, IS THERE
7 ANYTHING OTHERWISE IN WRITING REGARDING D.O.J. EMPLOYEES
8 THAT REQUIRES THAT THERE BE SOME TYPE OF REPORTING TO THE
9 A. G.?
10 MR. FITZGERALD: WHERE IT IS, I CAN'T TELL YOU,
11 BUT WE ARE SUPPOSED TO REPORT URGENT EVENTS THEY SHOULD BE
12 AWARE OF.
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June 14 07 Tr
13 IT MAY BE -- AND WE HAVE DONE THIS. WE ARE
14 INDICTING A PUBLIC OFFICIAL IN CHICAGO. AND WE SENT AN
15 URGENT REPORT TUESDAY NIGHT THAT, BY THE WAY, IN THE MORNING
16 WE WILL BE UNSEALING AN INDICTMENT OF "X" OFFICIAL. THIS
17 WAY THE ATTORNEY GENERAL AND PEOPLE ARE AWARE OF IT IN CASE
18 THEY GET QUESTIONS.
19 WE DON'T SEEK PERMISSION TO INDICT. WE TELL THEM,
20 "THIS IS WHAT WE ARE DOING." BUT THAT TO ME IS A MATTER OF
21 KEEPING PEOPLE APPRISED WITHIN THE DEPARTMENT OF JUSTICE SO
22 THAT THEY KNOW WHAT'S GOING ON. WE DO NOT REQUEST
23 PERMISSION, UNLESS THE STATUTE WE CHARGE REQUIRES
24 PERMISSION.
25 WE CHARGE PEOPLE WITH VERY SERIOUS OFFENSES, AND
1 MANY TIMES WE CHARGE PEOPLE WITH OFFENSES FOR WHICH THEY
2 WILL FACE LIFE IMPRISONMENT WITHOUT PATROL. AND THAT
3 DOESN'T WARRANT MAKING A REPORT TO THE DEPARTMENT OF
4 JUSTICE,
5 IF THERE IS SOMETHING WE THINK THEY MAY FEEL
6 SURPRISED TO HEAR ABOUT IN THE NEWS AND MAY HAVE A QUESTION
7 SPRUNG UPON THEM, WE'LL LET THEM KNOW THAT THIS IS A MATTER
8 THAT WILL BE ANNOUNCED TOMORROW. THAT'S NOT PERMISSION.
9 THE COURT: TO THE EXTENT THAT THERE IS SOMETHING
10 IN WRITING UNDER THE GENERAL D.O.J. RULES AND REGULATIONS
11 THAT APPLY TO YOU AS A U.S. ATTORNEY AND AS AN EMPLOYEE OF
12 THE JUSTICE DEPARTMENT, DID THE DELEGATION OF AUTHORITY HERE
13 RELIEVE YOU OF THAT OBLIGATION?
14 MR. FITZGERALD: I KNOW I APPRISED MR. MARGOLIS.
15 I APPRISED MR. MARGOLIS BEFORE WE RETURNED THE INDICTMENT.
16 I TELL PEOPLE WHEN THINGS ARE COMING. HE WAS THE PERSON
17 THAT WAS MY POINT OF CONTACT. Page 40


June 14 07 Tr
18 THE COURT: BUT WHETHER YOU DID OR DID NOT, IT
19 SEEMS TO ME, IS NOT DETERMINATIVE. IT SEEMS TO ME WHAT'S
20 DETERMINATIVE IS WHETHER THE DELEGATION OF AUTHORITY
21 RELIEVED YOU OF THAT OBLIGATION, WHETHER OR NOT YOU DID IT.
22 MR. FITZGERALD: YOUR HONOR, I THINK THE FAIREST
23 THING TO SAY IS I TOLD PEOPLE JUST BEFORE THINGS HAPPENED,
24 IF THEY WERE ABOUT TO BECOME PUBLIC, SO THEY WEREN'T
25 SURPRISED.
1 I DON'T THINK I WAS OBLIGATED TO DO SO. I
2 CERTAINLY DIDN'T RESIST, IF SOMEONE WHO WASN'T RECUSED,
3 ASKED ME A QUESTION AND I THOUGHT IT WAS APPROPRIATE TO
4 SHARE. BUT THOSE ARE INTERNAL REGULATIONS AT THE DEPARTMENT
5 OF JUSTICE THAT DON'T VEST INTERESTS IN THIRD PARTIES, AND
6 THEY CERTAINLY AREN'T THE SORT OF POWERS THAT CHANGE SOMEONE
7 FROM AN INFERIOR OFFICER TO A PRINCIPAL OFFICER.
8 THE COURT: DOES RELIEVING YOU OF THAT OBLIGATION
9 THEN ELEVATE YOUR POSITION TO SOMETHING OTHER THAN AN
10 INFERIOR OFFICER?
11 MR. FITZGERALD: JUDGE, IF I CAN INDICT SOMEONE
12 FOR AN OFFENSE THAT THEY FACE LIFE WITHOUT PATROL, AS AN
13 INFERIOR OFFICER, WHICH U.S. ATTORNEYS HAVE -- NOT BEING
14 OBLIGED TO GIVE AN URGENT REPORT, WHICH ISN'T PERMISSION,
15 JUST TO GIVE SOMEONE A HEADS-UP SOMETHING IS COMING, THAT
16 CAN'T, UNDER ANY RATIONAL READING OF THE CASE LAW, CONVERT
17 ME INTO SOMETHING OTHER THAN AN INFERIOR OFFICE -- INTERNAL
18 REGULATIONS THAT KEEP PEOPLE APPRISED OF SOMETHING WHEN THE
19 FACT REMAINS THAT I CAN BE FIRED.
20 AND MOST OF THE SIGNIFICANT ACTIVITY WE TOOK
21 BECAME PUBLIC. THEY HAD THE POWER TO REVOKE ME AT WILL. SO Page 41


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22 WHETHER OR NOT I CALLED FOUR HOURS BEFORE IT BECOMES PUBLIC
23 OR IT BECOMES PUBLIC, THAT CAN'T BE THE TEST FOR WHAT AN
24 INFERIOR OFFICER IS.
25 YOUR HONOR, THERE ARE MANY, MANY THINGS THAT U. S.
1 ATTORNEYS CAN DO WITHOUT REPORTING TO WASHINGTON. AND U. S.
2 ATTORNEYS REMAIN INFERIOR OFFICERS.
3 SO I CAN'T IMAGINE -- I CAN'T IMAGINE, UNDER ANY
4 READING OF THE CASE LAW, NOT HAVING TO BRIEF PEOPLE IN
5 ADVANCE -- NOT SEEKING THEIR PERMISSION, BUT JUST GIVE THEM
6 A HEADS-UP, WOULD CHANGE THINGS WHEN THERE IS SO MUCH THAT
7 WE DO DO THAT WE DON'T FILE URGENT REPORTS OR NEED TO BRIEF
8 PEOPLE. AND THE CASE LAW IS CLEAR THAT U. S. ATTORNEYS ARE
9 INFERIOR OFFICERS.
10 I TOOK UP TOO MUCH OF THE TIME FROM MS. BONAMICI.
11 I'M SORRY.
12 THE COURT: ALL RIGHT.
13 MS, BONAMICI: YOUR HONOR, BEFORE I WALK AWAY FROM
14 THE ISSUE THAT WE ARE ON, I WANT TO MAKE A COUPLE POINTS
15 THAT MR. FITZGERALD DIDN'T COVER.
16 THE FIRST POINT IS THAT WE AGREE WITH YOUR HONOR
17 THAT MORRISON AND EDMOND ARE BEST READ AND ARE LIKELY TO BE
18 READ BY THE D. C. CIRCUIT AS SAYING THAT DIRECTION AND
19 CONTROL IS SUFFICIENT, BUT NOT NECESSARY.
20 WE ALSO AGREE THAT THE SUPREME COURT
21 PRECEDENT -- THE ONE THING THAT IS VERY CLEAR ABOUT THAT
22 PRECEDENT IS THAT THE COURT IS TO LOOK AT THE PARTICULAR
23 FACTS AND CIRCUMSTANCES OF EACH PARTICULAR CASE IN MAKING A
24 DECISION ON THE QUESTION OF WHETHER AN OFFICER IS INFERIOR
25 OR PRINCIPAL.
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1 AND, FINALLY, WE DO AGREE WITH THE COURT. WE
2 THINK THERE IS VIRTUALLY NO POSSIBILITY THAT THE D. C,
3 CIRCUIT WILL IGNORE THE LANGUAGE OF MORRISON AND EDMOND.
4 THAT BEING REMOVABLE AT WILL IS A CRUCIAL, CRUCIAL FACTOR.
5 THE LANGUAGE IS VERY STRONG THAT BEING REMOVABLE
6 AT WILL IS A POWERFUL TOOL OF CONTROL. AND THE FACT THAT IT
7 IS IS REALLY OBVIOUS TO JUST ABOUT ANYBODY.
8 THE DISTINCTION BETWEEN A POSITION IN WHICH THE
9 OFFICER CAN BE REMOVABLE AT WILL, OR CAN BE REMOVABLE AT
10 ALL -- BUT PARTICULARLY ONE WHO MAY BE DISMISSED AT WILL
11 AND THE POSITION OF SOMEBODY WHO, IN ANOTHER CONTEXT, HAS
12 LIFETIME TENURE OR CANNOT BE DISMISSED -- THERE JUST CAN BE
13 NO POSSIBLE WAY TO LOOK AT THAT DISTINCTION AS BEING NOT
14 VERY, VERY CRUCIALLY IMPORTANT.
15 AND, OF COURSE, THE DEFENDANT DOES CONCEDE THAT
16 MR. FITZGERALD WAS REMOVABLE AT WILL AT ALL TIMES.
17 THE ONLY ARGUMENT THAT THE DEFENDANT MAKES WITH
18 RESPECT TO THIS PARTICULAR ISSUE IS THE QUESTION OF
19 SUPERVISION AND THE QUESTION OF REPORTING.
20 WE WOULD SERIOUSLY CONTEST THE NOTION, ESPECIALLY
21 BASED ON THE CLARIFYING LETTER THAT WAS READ TO YOUR HONOR,
22 OR A PORTION OF WHICH WAS READ TO YOUR HONOR BY THE DEFENSE,
23 THAT MR. FITZGERALD WAS RELIEVED OF ANY OBLIGATION TO FOLLOW
24 DEPARTMENT POLICIES AND REGULATIONS,
25 NOTHING COULD BE MORE RIDICULOUS WHEN YOU ARE
1 TALKING ABOUT A SITTING U. S. ATTORNEY, CONFIRMED BY THE
2 PRESIDENT, WHO IN EVERY OTHER ASPECT OF HIS LIFE, INCLUDING
3 THIS ONE, HAD THE OBLIGATION TO FOLLOW POLICIES AND Page 43
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4 PROCEDURES.
5 AND YOUR HONOR IS ABSOLUTELY CORRECT THAT THE ONE
6 AREA WHERE SOME CHANGE WAS NECESSARY WAS THIS AREA OF
7 REPORTING, FOR THE OBVIOUS REASON THAT THERE IS NO OTHER WAY
8 TO CONDUCT A FAIR AND IMPARTIAL INVESTIGATION WHEN THERE IS
9 A POSSIBILITY AND A SUSPICION THAT THERE IS WRONGDOING AT
10 THE HIGHEST REACHES OF THE GOVERNMENT.
11 AND WE AGREE WHOLEHEARTEDLY WITH YOUR HONOR THAT
12 THAT IS THE ISSUE THAT INFORMED THE JUSTICE'S THINKING IN
13 MORRISON. AND IT IS THE ISSUE THAT PROPERLY INFORMED YOUR
14 THINKING IN THIS CASE. AND WE THINK THAT THERE IS REALLY NO
15 POSSIBILITY THAT THE D. C. CIRCUIT WILL IGNORE THAT VERY
16 CRITICAL ASPECT OF THE MORRISON CASE, WHICH APPLIES WITH
17 FULL FORCE IN THIS CASE.
18 AS FAR AS INFORMATION, CLEARLY, AS MR. FITZGERALD
19 POINTS OUT, THERE IS JUST AN ENORMOUS AMOUNT OF INFORMATION
20 IN THE PUBLIC DOMAIN ABOUT THIS CASE. REALLY THE IDEA THAT
21 THE PRESIDENT AND THE A. G. DID NOT KNOW WHAT WAS GOING ON
22 IN THE CASE IS REALLY FARFETCHED.
23 THE COURT: IS THAT RELEVANT?
24 MS, BONAMICI: I THINK IT IS RELEVANT.
25 THE COURT: THE FACT THAT THEY KNEW ABOUT IT
1 BECAUSE A LOT OF STUFF WAS MADE PUBLIC, DOES THAT MAKE A
2 DIFFERENCE IF, AT THE TIME OF THE DELEGATION, THERE IS A
3 RELINQUISHMENT OF A REQUIREMENT THAT OTHERWISE WOULD HAVE TO
4 BE COMPLIED WITH?
5 MS. BONAMICI: WELL, HERE IS WHY IT IS REALLY
6 IMPORTANT. THERE ARE TWO DIFFERENT ISSUES UNDER MORRISON
7 AND TWO DIFFERENT POINTS. ONE OF THEM IS THE QUESTION OF
8 REMOVABILITY. AND THE OTHER ONE IS A QUESTION OF D.O.J, Page 44


June 14 07 Tr
9 POLICIES OR APPLICABLE POLICIES AND REGULATIONS.
10 WITH RESPECT TO REMOVABILITY, THE FACT THAT
11 INFORMATION WAS AVAILABLE IN THE PUBLIC DOMAIN IS CRUCIAL TO
12 THE QUESTION OF WHETHER THERE WAS ANY POSSIBILITY OR WHETHER
13 THE RIGHT OF REMOVABILITY WAS, AS THE DEFENSE ARGUES,
14 ILLUSORY.
15 THE COURT: ONE MOMENT, PLEASE.
16 MS. BONAMICI: SURE.
17 (THE COURT CONFERRING WITH THE LAW CLERK.)
18 THE COURT: I'M SORRY.
19 MS. BONAMICI: WHEN YOU ARE TALKING ABOUT WHETHER
20 THE POWER OF REMOVABILITY IS ILLUSORY, THEN THE ISSUE OF
21 WHETHER THE APPROPRIATE OFFICERS WOULD HAVE ACCESS TO THE
22 INFORMATION IS CRUCIAL, AND IT REALLY DOESN'T MATTER HOW
23 THAT ACCESS IS OBTAINED.
24 BUT, IN THIS CASE, WE GO FAR BEYOND THAT BECAUSE
25 LET'S BE REALISTIC ABOUT WHAT WAS GOING ON IN THIS CASE.
1 EVERY SINGLE THING THAT WAS DONE IN CONDUCTING THIS
2 INVESTIGATION INVOLVED MEMBERS OF THE EXECUTIVE BRANCH,
3 EITHER AS WITNESSES OR AS HOLDERS OF DOCUMENTS, VIRTUALLY
4 EVERY SUBPOENA WAS ISSUED TO A GOVERNMENT AGENCY.
5 WITNESS AFTER WITNESS NOT ONLY TESTIFIED AT THE
6 TRIAL, BUT WERE CALLED BEFORE THE GRAND JURY, AS WAS
7 DISCLOSED DURING THE TRIAL.
8 WE INTERVIEWED AND PUT BEFORE THE GRAND JURY AND
9 PUT ON THE WITNESS STAND COUNSEL TO THE VICE-PRESIDENT,
10 MR. ADDINGTON.
11 THE IDEA THAT THE PRINCIPAL OFFICERS INVOLVED IN
12 THIS CASE DID NOT KNOW WHAT WAS GOING ON IS REALLY JUST MADE
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13 UP. IT WASN'T THE CASE IN THIS SITUATION, AND THE IDEA THAT
14 MR. FITZGERALD WAS REMOVABLE AT WILL WAS ABSOLUTELY THE
15 EVER-PRESENT CONSIDERATION AND WELL WITHIN THE KNOWLEDGE OF
16 THE PEOPLE WORKING IN THE SPECIAL COUNSEL'S OFFICE REALLY AT
17 EVERY MOMENT.
18 WE WORKED VERY CLOSELY WITH THE EXECUTIVE BRANCH
19 AGENCIES, AND AS YOU ARE AWARE, DURING THE CIPA PROCEEDINGS
20 IN PARTICULAR, REPRESENTATIVES OF THE AGENCY PARTICIPATED
21 AND WERE PRESENT EVERY SINGLE DAY OF THE PROCEEDINGS, AS YOU
22 ARE WELL AWARE YOURSELF.
23 ON THE ISSUE OF FAILURE TO COMPLY OR NO OBLIGATION
24 TO COMPLY WITH D.O.J. REGS., REALLY WHAT THE ARGUMENT BOILS
25 DOWN TO IS ELEVATING THE REPORTING REQUIREMENTS APPLICABLE
1 TO A PERSON WHO IS MADE A SPECIAL COUNSEL FROM OUTSIDE THE
2 DEPARTMENT OF JUSTICE -- TAKING THAT LANGUAGE AND THEN
3 BROADENING IT TO SUGGEST THAT MR. FITZGERALD HAD NO
4 OBLIGATION TO COMPLY WITH ANY POLICIES.
5 THAT REALLY IS NOT A FAIR READING OF THE STATEMENT
6 THAT WAS MADE BY MR. COMEY IN THE LETTER. THERE IS NO
7 ASPECT OF THAT THAT'S TRUE WITH RESPECT TO THIS CASE,
8 PERIOD.
9 WITH RESPECT TO THE RELATED CASES, I THINK
10 MR. FITZGERALD HANDLED THAT QUESTION. THAT IS JUST THE
11 STANDARD FORM OF INVESTIGATING IN THE CRIMINAL SENSE. YOU
12 INVESTIGATE CONDUCT. YOU DON'T INVESTIGATE PARTICULAR
13 CRIMES.
14 AND THE LANGUAGE MR. COMEY USED TO DESCRIBE THAT
15 WAS PRETTY OBVIOUSLY LIMITED TO THE INTERPRETATION THAT
16 MR. FITZGERALD PUT FORWARD, AUTHORITY TO INVESTIGATE AND
17 PROSECUTE ANY CRIMINAL LAWS RELATED TO THE UNAUTHORIZED Page 46


June 14 07 Tr
18 DISCLOSURE.
19 SO CLEARLY THE "RELATED" FOCUSED SOLELY ON THE
20 STATUTES. AND, AGAIN, AN EFFORT TO BROADEN THAT LANGUAGE TO
21 MEAN SOMETHING THAT IT NEVER MEANT IS REALLY JUST NOT FAIR
22 AND NOT REASONABLE.
23 I THINK MR, FITZGERALD ADDRESSED THE CIPA QUESTION
24 VERY WELL, BUT I DO WANT TO MENTION THAT BECAUSE THE DEFENSE
25 DID NOT RAISE THIS ISSUE EARLIER, IT WAS NEVER LITIGATED AND
1 NEVER DISCUSSED WHETHER, IN FACT, THE STATUTE THAT YOUR
2 HONOR RELIED ON AND THE STATUTORY ASPECT OF THE DEFENDANT'S
3 CLAIM, THAT IS, 28 C.F.R. 510 -- WHETHER THAT WAS IN SOME
4 WAY TRUMPED BY THE CIPA PROVISION IN CHAPTER 14. THAT'S
5 SOMETHING THAT HAS NOT BEEN LITIGATED, IT HAS NOT BEEN
6 RESOLVED. BUT, IN ANY EVENT, THE DEFENSE'S 11TH HOUR
7 DESPERATE EFFORT TO RAISE THIS ISSUE --
8 THE COURT: ON THAT ISSUE, THE CIPA STATUTE IS A
9 MORE SPECIFIC STATUTE REGARDING DELEGATION. SO WOULDN'T
10 THAT TRUMP BECAUSE OF THAT --
11 MS. BONAMICI: IN A WAY IT'S MORE SPECIFIC, BUT IN
12 A WAY IT'S NOT. IT'S MORE SPECIFIC WITH RESPECT TO CIPA OR
13 CLASSIFIED INFORMATION. IT'S LESS SPECIFIC WITH RESPECT TO
14 FOCUSING ON THE CIRCUMSTANCES THAT REQUIRE A DELEGATION TO
15 AVOID A CONFLICT.
16 IT DOESN'T ADDRESS THAT QUESTION AT ALL. AND THAT
17 IS PRECISELY THE POINT THAT YOUR HONOR MADE WHEN DEFENSE
18 COUNSEL WAS ARGUING.
19 SO, YES AND NO. IT DEPENDS ON HOW YOU LOOK AT IT.
20 WHAT WE ARE DEALING WITH HERE IS AN APPOINTMENT OR RATHER A
21 DELEGATION THAT WAS DONE SPECIFICALLY TO AVOID A CONFLICT. Page 47


June 14 07 Tr
22 SO, ARGUABLY, THE DELEGATION STATUTE IS MORE
23 SPECIFIC BECAUSE IT DEALS WITH CONFLICT. BUT, IN ANY EVENT,
24 NONE OF THESE ISSUES WERE ADDRESSED. AND, IN FACT, AS I
25 SAY, WE ARE TALKING ABOUT RAISING SOMETHING IN A REPLY
1 BRIEF. AND THE KEY ISSUE HERE IS THAT THE MERE SIGNING OF
2 THE CERTIFICATIONS BY MR, FITZGERALD IS NOT EVIDENCE. IT'S
3 NOT POWERFUL EVIDENCE. IT'S NOT WEAK EVIDENCE. IT'S NOT
4 EVIDENCE AT ALL THAT MR, FITZGERALD IS A PRINCIPAL OFFICER,
5 GIVEN THE CIRCUMSTANCES OF THE SIGNATURES IN THIS CASE,
6 WHICH ARE THAT THERE WAS NO QUESTION WHATSOEVER -- NOT EVEN
7 ANY DISPUTE FROM THE DEFENSE.
8 AND YOUR HONOR SAW THE INFORMATION. SO YOUR HONOR
9 KNOWS THIS ISN'T SOMETHING THAT REQUIRED A LOT OF
10 DISCRETION. MR. FITZGERALD'S SIGNATURE, EVEN ON THE
11 SECOND -- WELL, ON BOTH CERTIFICATIONS WAS DONE BASED ON THE
12 INFORMATION HE RECEIVED FROM THE AGENCY, WHICH WAS
13 OBJECTIVELY REASONABLE BY ANY STANDARDS. AND THERE WAS NO
14 DISPUTE ABOUT THAT.
15 THE COURT: I AM GOING TO HAVE TO CUT YOU OFF.
16 ANYTHING ELSE?
17 MS. BONAMICI: WELL, WITH RESPECT TO THE
18 APPOINTMENTS CLAUSE, I THINK WE HAVE IT COVERED. I DON'T
19 KNOW IF YOUR HONOR WANTS TO HEAR -- CERTAINLY I DON'T THINK
20 YOUR HONOR NEEDS TO HEAR ANY ARGUMENT ON ANDREA MITCHELL.
21 WE AGREE WITH EVERYTHING YOUR HONOR SAID.
22 AND WITH RESPECT TO THE MEMORY --
23 THE COURT: I THINK THE REAL ISSUE FOR ME TO
24 ADDRESS IS REALLY THE APPOINTMENT-CLAUSE ISSUE BECAUSE I
25 HAVE EXPRESSED MY VIEW IN REFERENCE TO ANDREA MITCHELL. AND
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57
U
1 I DID THAT IN A WRITTEN OPINION. AND I DON'T PERCEIVE THAT
2 AS RAISING A CLOSE ISSUE, BECAUSE EVEN ASSUMING THAT IT WAS
3 ERROR -- WHICH I CONCLUDE IT WAS NOT -- TO HAVE NOT
4 PERMITTED HER TO TESTIFY, BUT EVEN ASSUMING IT WAS, IN MY
5 VIEW, CONSIDERING THE EXTENSIVE CROSS-EXAMINATION THAT TOOK
6 PLACE WITH MR. RUSSERT -- WHICH IS WHAT HER TESTIMONY WOULD
7 HAVE GONE TO -- AND CONSIDERING THE WEIGHT OF THE EVIDENCE
8 THAT EXISTED IN THIS CASE, BECAUSE, AS I PREVIOUSLY
9 INDICATED AT THE TIME OF SENTENCING, IN MY VIEW, BASED UPON
10 THE EVIDENCE THAT I OBSERVED OBJECTIVELY AS THE JUDGE IN
11 THIS CASE, THE EVIDENCE OF GUILT WAS OVERWHELMING.
12 I MEAN MR. LIBBY, AS I INDICATED, TALKED TO AT
13 LEAST NINE PEOPLE WITHIN THE GOVERNMENT ABOUT MS. PLAME. HE
14 TALKED TO THE VICE-PRESIDENT SPECIFICALLY ABOUT IT. HE TOOK.
15 NOTES WHEN HE TALKED TO THE VICE-PRESIDENT ABOUT HER. HE
16 ALSO TASKED A HIGH-LEVEL OFFICIAL AT THE STATE DEPARTMENT TO
17 FIND OUT INFORMATION ABOUT HER.
18 HE ALSO DOWNLOADED INFORMATION REGARDING ARTICLES
19 ABOUT THIS INVESTIGATION BEFORE HE WAS QUESTIONED -- AT
20 LEAST ON ONE OCCASION BEFORE HE WAS QUESTIONED BY THE F.B.I.
21 AND ON TWO OCCASIONS, AT LEAST, BEFORE HE TESTIFIED BEFORE
22 THE GRAND JURY, AND THEN WHEN HE TESTIFIED AND WHEN HE
23 TALKED ABOUT IT, AS FAR AS WHEN HE GOT THIS INFORMATION
24 ABOUT HER, WAS VERY CLEAR IN REFERENCE TO WHAT HE ALLEGEDLY
25 HEARD FROM MR. RUSSERT THAT MR. RUSSERT DENIED.
1 I THINK WHEN YOU CONSIDER ALL OF THAT, WHICH IS
2 WHY, IN MY VIEW, THE JURY REACHED THE VERDICT THAT THEY
3 DID -- AND THE SUGGESTION THAT WAS MADE THAT SOMEHOW THE Page 49
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4 LENGTH OF THE DELIBERATIONS WAS REFLECTIVE OF THE FACT THAT
5 MAYBE THE CASE WASN'T THAT STRONG OVERLOOKS THE FACT THAT
6 THE JURY, BASED UPON WHAT WAS REPRESENTED, HAD REACHED A
7 DECISION REGARDING EVERY COUNT, EXCEPT THE ONE, EARLY ON IN
8 THEIR DELIBERATIONS. IT WAS ONLY THE ONE COUNT THAT HUNG
9 THEM UP.
10 SO THEY WERE PERFECTLY CLEAR, BASED UPON WHAT WAS
11 PRESENTED TO THEM, ABOUT THE DEFENDANT'S GUILT, AS I AM,
12 BASED UPON THE EVIDENCE THAT WAS SUBMITTED.
13 THAT BEING SAID, OBVIOUSLY, IT SEEMS TO ME, THE
14 HARMLESS-ERROR ISSUE COMES INTO PLAY.
15 SO EVEN IF I DID MAKE ERROR IN REFERENCE TO
16 MS. MITCHELL -- WHICH I CONCLUDE I DIDN'T -- IT'S MY VIEW
17 THAT THAT WOULD HAVE MADE NO DIFFERENCE IN REFERENCE TO THE
18 OUTCOME BECAUSE IT WAS SO INSIGNIFICANT, CONSIDERING THE
19 LEAPS OF INFERENCES THAT HAD TO BE MADE IN ORDER FOR IT TO
20 HAVE ANY DEGREE OF WEIGHT WITH THE JURY, THAT IT WOULD NOT
21 HAVE HAD ANY IMPACT ON ULTIMATELY HOW THE JURY JUDGED THE
22 CREDIBILITY OF RUSSERT'S TESTIMONY.
23 AND REGARDING THE MEMORY EVIDENCE, I FULLY
24 EXPRESSED IN WRITTEN OPINIONS MY VIEWS IN REFERENCE TO THAT.
25 AND IT IS MY VIEW, REGARDING THE CIPA QUESTIONS, AS IT
1 RELATES TO THE MEMORY DEFENSE, AND THE EXPERT TESTIMONY AS
2 IT RELATES TO THE MEMORY DEFENSE, FOR THE REASONS I HAVE
3 INDICATED AS TO WHY THERE WAS A CIRCUMVENTION OF WHAT HE
4 COULD PRESENT REGARDING THE CIPA EVIDENCE, AND IN REFERENCE
5 TO THE EXPERT TESTIMONY -- I MEAN BECAUSE EVEN ASSUMING THAT
6 THAT TYPE OF TESTIMONY WOULD BE APPROPRIATE, WHICH I WOULD
7 HAVE REAL QUESTIONS ABOUT, BECAUSE IT SEEMS TO ME IT
8 BASICALLY ENDS UP USURPING WHAT THE ROLE OF THE JURY IS -Page 50


June 14 07 Tr
9 BUT, IN ANY EVENT, IT SEEMS TO ME THAT BASED UPON WHAT WAS
10 PRESENTED TO ME IN THIS PROCEEDING, THROUGH THE WITNESS WHO
11 WAS CALLED REGARDING THAT EXPERT TESTIMONY, THAT I WOULD NOT
12 BE PERFORMING THE DUTY I WAS TOLD TO PERFORM IN DAUBERT AS
13 THE GATEKEEPER IF I CONCLUDED THAT, ON THE RECORD THAT
14 EXISTS IN THIS CASE, THAT IT WOULD HAVE BEEN APPROPRIATE TO
15 PERMIT THAT TESTIMONY TO BE PRESENTED,
16 I THINK I WOULD HAVE ABDICATED WHAT THE SUPREME
17 COURT TOLD ME TO DO TO BE A GATEKEEPER AND WOULD BASICALLY
18 HAVE WALKED AWAY FROM MY LOCATION OF KEEPER AND JUST LET THE
19 DOOR FLING WIDE OPEN AND JUST LET ANYTHING COME INTO THESE
20 PROCEEDINGS, WHICH I DON'T THINK IS WHAT MY ROLE IS AS A
21 JUDGE.
22 SO ON THOSE TWO ISSUES, I AM PERFECTLY CONVINCED
23 THAT THERE IS NO CLOSE ISSUE, AND THE ONLY ISSUE I THINK I
24 HAVE TO GRAPPLE WITH IS THE APPOINTMENT-CLAUSE ISSUE, SO
25 THANK YOU.
1 MS. BONAMICI: YOUR HONOR, ON THAT POINT IF I CAN
2 JUST SUGGEST ONE LAST THING. THE MORRISON CASE IS BINDING
3 PRECEDENT THAT THE D. C. CIRCUIT IS GOING TO HAVE TO GRAPPLE
4 WITH THE MORRISON CASE.
5 THE COURT: I APPRECIATE THAT.
6 MR. BONAMICI: AND WHEN THEY DO, THEY ARE GOING TO
7 HAVE TO LOOK AT THE FOUR FACTORS THAT THE MORRISON COURT
8 EMPHASIZED: REMOVABILITY, LIMITED DUTIES, NO POLICY-MAKING
9 RESPONSIBILITIES, AS WELL AS DUTY TO FOLLOW REGULATIONS.
10 THE COURT: LET ME HEAR FROM OTHER COUNSEL. I
11 HAVE A PLANE TO CATCH.
12 MS. BONAMICI: THANK YOU, JUDGE.
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13 MR. ROBBINS: LEST THERE BE ANY DOUBT, WE EMBRACE
14 MORRISON AND WE PREVAIL UNDER MORRISON.
15 ALEXIA MORRISON HAD A DUTY TO REPORT. ALEXIA
16 MORRISON HAD A STATUTORY DUTY TO FOLLOW D.0.J. REGULATIONS.
17 ALEXIA MORRISON BEGGED FOR AUTHORITY TO PROSECUTE RELATED
18 CASES. SHE DIDN'T GET IT. HE HAD IT FROM DAY ONE.
19 THE COURT: DOES THAT GO BEYOND, BASED UPON HIS
20 REPRESENTATION OF WHAT A "RELATED CASE" MEANT?
21 MR. ROBBINS: WELL, THE RELATED-CASE
22 LANGUAGE -- YOUR HONOR, THE GOOD THING ABOUT HAVING TEXT IS
23 THAT THEY ARE CAPABLE OF BEING APPLIED BY THEIR PLAIN
24 MEANING.
25 HERE'S WHAT THE WORDS ACTUALLY SAY. THERE IS NO
1 NEED TO CAVIL ABOUT IT, WHAT IT SAYS IS HE IS AUTHORIZED TO
2 INVESTIGATE AND PROSECUTE VIOLATIONS OF ANY CRIMINAL LAWS
3 RELATED TO THE UNDERLYING EVENTS THAT HE IS INVESTIGATING.
4 ANY VIOLATIONS RELATED. THAT IS, AS ANY LAWYER KNOWS, THE
5 BROADEST, MOST SWEEPING LANGUAGE.
6 THE COURT: ISN'T IT LIMITED BY THE NATURE OF WHAT
7 HE WAS GIVEN AUTHORITY TO INVESTIGATE: WAS THERE AN
8 INAPPROPRIATE LEAK OF MS. PLAME'S IDENTITY?
9 MR. ROBBINS: BUT, YOUR HONOR, YOU COULD IMAGINE
10 ALMOST ANY PROSECUTION THAT IS IN SOME IMPORTANT SENSE
11 RELATED TO IT.
12 MY POINT IS SIMPLY THIS.
13 THE COURT: RELATED TO THAT LEAK?
14 MR. ROBBINS: WELL, "RELATED TO" IS A DOOR THAT
15 SWINGS WIDELY, AND IT IS THE VERY THING THAT ALEXIA MORRISON
16 BEGGED FOR AND DIDN'T GET.
17 THE COURT: BUT IN THAT CASE, AS COUNSEL SAID, SHE Page 52


June 14 07 Tr
18 WAS SPECIFICALLY GIVEN AUTHORITY TO INVESTIGATE ONE
19 INDIVIDUAL, AND SHE WANTED TO SPIN OFF AND START TO
20 INVESTIGATE OTHER INDIVIDUALS.
21 MR. ROBBINS: YES, BUT WHAT SHE WAS NOT GIVEN IS
22 RELATED-CASE AUTHORITY. IF SHE HAD BEEN GIVEN THAT -- IF
23 SHE HAD BEEN GIVEN RELATED-CASE AUTHORITY, WHICH HE WAS, SHE
24 WOULD HAVE BEEN ABLE TO INVESTIGATE AND PROSECUTE ALL THE
25 PEOPLE SHE WANTED TO. AND SHE WAS SHUT DOWN.
1 I HAVE A FEW OTHER VERY QUICK POINTS, YOUR HONOR.
2 THE NOTION THAT SPECIAL --
3 THE COURT: BASED UPON THE AUTHORITY THAT SHE WAS
4 GIVEN, IF THE INVESTIGATION HAD REVEALED THAT SOMEBODY HAD
5 ACTED AS A CO-CONSPIRATOR OR A COMPLICIT WITH THE PERSON SHE
6 WAS DESIGNATED TO INVESTIGATE, ARE YOU SAYING SHE COULD NOT
7 HAVE INVESTIGATED OR PROSECUTED THAT PERSON?
8 MR. ROBBINS: SHE COULD HAVE INVESTIGATED
9 CONSPIRACY, SAID THE SPECIAL DIVISION. BUT WHAT SHE COULD
10 NOT DO IS INDICT OR INVESTIGATE THAT PERSON BECAUSE THAT
11 REQUIRED RELATED-CASE AUTHORITY, WHICH SHE WAS DENIED. ALL
12 I AM SAYING
13 THE COURT: YOU'RE SAYING IF SOMEBODY WAS ACTING
14 COMPLICIT WITH THE PERSON SHE WAS DESIGNATED TO INVESTIGATE,
15 THAT SHE COULD NOT PROSECUTE THAT OTHER PERSON?
16 MR. ROBBINS: SHE COULD NOT HAVE PROSECUTED ED
17 SCHMULTS AND CAROL DINKINS.
18 THE COURT: WAS THE CLAIM THERE THAT THEY HAD
19 ACTED COMPLICIT WITH --
20 MR, ROBBINS: CORRECT. THAT IS PRECISELY WHAT SHE
21 SAID. AND THE ATTORNEY GENERAL SAID, "YOU CAN'T HAVE IT. Page 53


June 14 07 Tr
22 YOU DON'T HAVE THAT POWER, I DIDN'T GIVE IT TO YOU. YOU
23 DON'T HAVE RELATED-CASE AUTHORITY."
24 SO SHE DIDN'T HAVE RELATED-CASE AUTHORITY. HE
25 DID. SHE HAD TO REPORT TO THE ATTORNEY GENERAL UNDER
1 594(F). HE DOESN'T. SHE HAD TO FOLLOW THE D.O.J. POLICIES
2 AND PROCEDURES. HE DOESN'T AND DIDN'T.
3 AND HOW DO WE KNOW THAT? BECAUSE HE FILED A
4 6(C)(2) AFFIDAVIT, WHICH HE NOW TELLS YOU, YOUR HONOR --
5 MR. FITZGERALD DOES -- IS A MERE MINISTERIAL ACT. SO THAT
6 IF HE WAS EXERCISING INAPPROPRIATE AUTHORITY, YOU DON'T
7 REALLY HAVE TO WORRY BECAUSE IT IS JUST CHECKING THE BOXES.
8 I URGE THE COURT TO LOOK AT WHAT MR. FITZGERALD IS
9 CALLING A MINISTERIAL ACT. IT SAYS: .THE UNITED STATES
10 MAY, IN CONNECTION WITH A MOTION, SUBMIT AN AFFIDAVIT
11 CERTIFYING BY THE ATTORNEY GENERAL -- CERTIFYING THAT
12 DISCLOSURE OF CLASSIFIED INFORMATION WOULD CAUSE
13 IDENTIFIABLE DAMAGE TO THE NATIONAL SECURITY.
14 AND IF THAT HAPPENS, EVERYTHING GRINDS TO A HALT
15 BECAUSE THE ATTORNEY GENERAL, WHO IS ACTING PURSUANT TO
16 AUTHORITY THAT ONLY HE AND TWO OTHER DESIGNEES -- ACTUALLY
17 THREE OTHER DESIGNEES, BUT NOT MR. FITZGERALD -- HAVE THE
18 POWER TO EXERCISE.
19 AND, YOUR HONOR, THAT WAS THE CONGRESSIONAL
20 COMMAND. THE FACT THAT MR. FITZGERALD MAY HAVE TALKED TO
21 THE ATTORNEY GENERAL FROM TIME TO TIME, IF HE FELT LIKE IT,
22 DOESN'T MATTER. WHAT MATTERS IS: WHAT WAS HE REQUIRED TO
23 DO?
24 THIS IS A SPECIAL COUNSEL WHO HAD NO REPORTING
25 OBLIGATIONS, NO OBLIGATIONS TO FOLLOW POLICY, AND AS I HAVE
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64
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1 JUST POINTED OUT TO YOU, YOUR HONOR, I HAVE GOT A COPY OF
2 HIS AFFIDAVIT. WE DIDN'T KNOW. NOBODY COULD HAVE KNOWN
3 THAT HE SIGNED IT AND NOT THE ATTORNEY GENERAL.
4 WHEN LAWRENCE WALSH HAD TO DO THE VERY SAME THING,
5 HE WENT TO ATTORNEY GENERAL THORNBURGH TO GET HIM TO SIGN IT
6 BECAUSE HE UNDERSTOOD THAT SECTION 14 IS A COMMAND BY
7 CONGRESS THAT ONLY CERTAIN DESIGNATED PEOPLE MAY SPEAK ABOUT
8 THE NATIONAL SECURITY INTERESTS OF THE UNITED STATES IN THE
9 NAME OF THE UNITED STATES. THEY HAVE GOT TO BE NOT THE
10 PERSON WEARING THE HAT OF THE ATTORNEY GENERAL. THEY HAVE
11 GOT TO BE THE ATTORNEY GENERAL.
12 THE COURT: WELL, IN THAT REGARD, CAN I ASSUME
13 THAT MR. COMEY KNEW THAT HE WAS NOT ACTING IN COMPLIANCE
14 WITH CIPA WHEN HE GAVE MR. FITZGERALD THIS AUTHORITY BECAUSE
15 IF, IT SEEMS TO ME, HE DID NOT INTEND TO GIVE HIM THAT
16 AUTHORITY BECAUSE HE KNEW HE COULDN'T, BUT MR, FITZGERALD
17 OVERSTEPPED HIS BOUNDS AND EXERCISED THAT AUTHORITY, DESPITE
18 THE LIMITED AUTHORITY HE WAS GIVEN, HOW DO I REACH THE
19 CONCLUSION THAT JUST BECAUSE MR. FITZGERALD DID SOMETHING,
20 CONCEIVABLY IN VIOLATION OF CIPA, THAT THAT MEANS THAT HE
21 WAS, IN FACT, GIVEN THE AUTHORITY TO DO THE INAPPROPRIATE
22 THING HE DID?
23 MR. ROBBINS: HERE'S WHAT WE KNOW, JUDGE. WE KNOW
24 THAT IN DECEMBER, 2003, AND AS CLARIFIED IN FEBRUARY, 2004,
25 THE ACTING ATTORNEY GENERAL TOLD MR. FITZGERALD, "YOU HAVE
65
0
1 ALL THE PLENARY AUTHORITY OF THE ATTORNEY GENERAL. YOU
2 DON'T HAVE TO COME BACK AND REPORT TO ME. YOU DON'T HAVE TO
3 FOLLOW D.O.J. POLICIES. YOU JUST TAKE THIS CASE WHERE YOUR
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4 COMMON SENSE AND GOOD INSTINCTS LEAD IT. PERIOD. BE
5 FRUITFUL AND MULTIPLY. I WILL SEE YOU WHEN IT'S OVER."
6 THAT'S WHAT HE BASICALLY SAID. AND, YOUR HONOR,
7 WHEN YOU GET A DELEGATION THAT BROAD, WHAT ENDS UP HAPPENING
8 IS YOU FILE 6(C)(2) AFFIDAVITS IN THE NAME OF THE ATTORNEY
9 GENERAL.
10 I DON'T BLAME MR. FITZGERALD. HE THOUGHT HE HAD
11 ALL OF THIS POWER. AND YOU NOW WHAT? HE PROBABLY DID.
12 THAT'S WHAT'S WRONG HERE, NOT WHAT'S RIGHT.
13 THE COURT: OKAY. I WILL TAKE FIVE MINUTES, AND I
14 WILL LET YOU KNOW WHETHER I AM GOING TO ISSUE MY RULING NOW
15 OR WHETHER I AM GOING TO ISSUE IT LATER. I NEED TO TALK TO
16 MY LAW CLERK ON THIS ISSUE.
17 MR. ROBBINS: THANK YOU, YOUR HONOR.
18 (A RECESS WAS TAKEN.)
19 (AFTER RECESS.)
20 THE COURT: LET ME SAY AS A PRELUDE TO MY RULING
21 THAT THE SUGGESTION THAT BECAUSE I HAVE GIVEN SIGNIFICANT
22 CONSIDERATIONS TO ISSUES THAT HAVE BEEN RAISED BEFORE ME,
23 AND THE FACT THAT I HAVE WRITTEN LENGTHY OPINIONS, IS A
24 REFLECTION OF MY PERSPECTIVE THAT THE ISSUE IS CLOSE, IS NOT
25 CORRECT.
1 I THINK AS A JUDGE, WE HAVE AN OBLIGATION -- EVEN
2 AS TRIAL JUDGES, WHO HAVE TO OBVIOUSLY MAKE DECISIONS A LOT
3 MORE EXPEDIENTLY THAN APPELLATE JUDGES DO, THAT,
4 NONETHELESS, WE SHOULD BE EXPECTED AND ARE EXPECTED TO GIVE
5 SIGNIFICANT CONSIDERATION TO WHAT WE DO, WITHIN THE LIMITED
6 TIME THAT WE MAY HAVE, IN ORDER TO TRY AND GET IT RIGHT.
7 AND MY OBJECTIVE, IN REFERENCE TO ANY RULING I MAKE,
8 REGARDLESS OF WHAT THE CASE IS, IS TO TRY AND GET IT RIGHT. Page 56


June 14 07 Tr
9 AND THAT IS WHAT I HAVE SOUGHT TO TRY AND DO THROUGH THE
10 PROCESS OF WRITING THE OPINIONS THAT I HAVE ISSUED.
11 SO, AS I SAY, I DON'T ACCEPT THE PROPOSITION THAT
12 BECAUSE I HAVE TAKEN MY TIME AND TRIED TO GET IT RIGHT, THAT
13 THAT'S A REFLECTION THAT I THINK THAT IT NECESSARILY IS A
14 CLOSE ISSUE FOR THE PURPOSE OF WHAT WE ARE TALKING ABOUT
15 HERE TODAY.
16 IN REFERENCE TO THIS ISSUE, IT IS A SIGNIFICANT
17 ISSUE, AND I FULLY APPRECIATE THAT BECAUSE WE ARE TALKING
18 ABOUT SOMEONE'S POTENTIAL FREEDOM.
19 OBVIOUSLY, REGARDLESS OF WHAT I DO, AN APPELLATE
20 COURT COULD CONCEIVABLY SEE IT DIFFERENTLY. AND THAT'S OUR
21 SYSTEM. AND, OBVIOUSLY, I APPRECIATE THAT. BUT I HAVE TO
22 TRY AND MAKE THE BEST CALL I CAN, BASED UPON THE INFORMATION
23 THAT I HAVE BEFORE ME.
24 AS I INDICATED WHILE WE WERE HAVING ARGUMENT, I
25 DON'T -- AND CONSISTENT WITH THE COURTS WHO HAVE CONSIDERED
1 THE APPOINTMENT-CLAUSE ISSUE AFTER EDMOND WAS DECIDED, I
2 DON'T BUY THE PROPOSITION THAT SOMEHOW EDMOND ALTERED WHAT
3 THE MORRISON COURT SAID ABOUT HOW THE APPOINTMENT-CLAUSE
4 ISSUE SHOULD BE ADDRESSED.
5 I THINK THAT, DEPENDING UPON THE FACTUAL
6 CIRCUMSTANCES OF THE CASE -- WHICH IS WHY EDMOND CAME OUT AS
7 IT DID, BECAUSE THEY START OUT IN THE ANALYSIS BY SAYING
8 THAT TWO OF THE FOUR FACTORS THAT WERE APPLICABLE IN
9 MORRISON WERE NOT IN PLAY IN EDMOND AND, THEREFORE, THEY
10 LOOKED TO SEE IF THERE WERE OTHER FACTORS THAT WOULD
11 INDICATE THAT THE MILITARY JUDGES IN EDMOND WERE, IN FACT,
12 INFERIOR, AS COMPARED TO PRINCIPAL OFFICIALS, AND CONCLUDED Page 57


June 14 07 Tr
13 THAT THEY WERE, IN FACT, PRINCIPAL OFFICIALS, BASED UPON THE
14 ADDITIONAL ANALYSIS THAT THE COURT ENGAGED IN IN EDMOND,
15 BASED UPON THE LACK OF THOSE TWO FACTORS THAT HAD BEEN
16 PRESENT IN MORRISON
17 SO IT IS MY VIEW THAT, DEPENDING UPON THE
18 CIRCUMSTANCES THAT EXIST, IT WOULD BE APPROPRIATE TO APPLY
19 MORRISON AND ITS FOUR FACTORS. AND IF YOU HAD ANOTHER
20 SITUATION, THEN IT MAY BE APPROPRIATE TO APPLY EDMOND.
21 BUT I DON'T THINK THE CASES NECESSARILY CONFLICT
22 WITH EACH OTHER BECAUSE THE PASSAGE THAT DEFENSE COUNSEL
23 RELIES UPON IN EDMOND DOES SAY THAT INFERIOR OFFICERS ARE
24 OFFICERS WHOSE WORK IS DIRECTED AND SUPERVISED AT SOME LEVEL
25 BY OTHERS, WHO ARE APPOINTED BY PRESIDENTIAL NOMINATION,
1 WITH THE ADVICE AND CONSENT OF THE SENATE.
2 AND I THINK EDMOND AND MORRISON CAN BE RECONCILED,
3 ESPECIALLY SINCE THE AUTHOR OF EDMOND WAS JUSTICE SCALIA,
4 WHO ALSO AUTHORED THE DISSENT IN MORRISON. AND I THINK IT
5 IS IMPORTANT IN THE CONTEXT OF MORRISON TO NOTE THE LANGUAGE
6 IN JUSTICE SCALIA'S DISSENT WHERE HE SAID, "IF SHE" --
7 REFERRING TO MS. MORRISON -- "WERE REMOVABLE AT WILL BY THE
8 ATTORNEY GENERAL, THEN SHE WOULD BE SUBORDINATE TO HIM AND
9 THUS PROPERLY DESIGNATED AS INFERIOR."
10 AND HERE I DON'T THINK THERE IS ANY QUESTION THAT
11 MR. FITZGERALD WAS, IN FACT, REMOVABLE AT WILL BY THE
12 ATTORNEY GENERAL OR THE DEPUTY ATTORNEY GENERAL, DESPITE THE
13 AUTHORITY THAT HE WAS GIVEN.
14 SO MY READING OF EDMOND AND MORRISON, RECONCILING
15 THOSE TWO CASES, IS THE FACT THAT BASED UPON WHAT JUSTICE
16 SCALIA SAID IN MORRISON IN HIS DISSENT, THAT IF WE HAVE THE
17 SITUATION WE HAVE HERE, WHERE MR. FITZGERALD WAS REMOVABLE Page 58


June 14 07 Tr
18 AT WILL, THAT JUSTICE SCALIA WOULD HAVE -- AT LEAST IT SEEMS
19 TO ME -- CONCLUDED THAT MS. MORRISON WAS, IN FACT, AN
20 INFERIOR OFFICIAL AND, THEREFORE, WOULD HAVE BEEN PART OF
21 THE MAJORITY IN THE MORRISON CASE.
22 THAT BEING SAID, THEN IT SEEMS TO ME THAT I, BASED
23 UPON THE FACTORS OR THE SITUATIONS WE HAVE HERE, WOULD APPLY
24 THE FOUR MORRISON FACTORS IN ASSESSING WHETHER
25 MR. FITZGERALD WAS A PRINCIPAL OFFICIAL, AS COMPARED TO AN
1 INFERIOR OFFICIAL.
2 AND THE FIRST FACTOR: WAS HE SUBJECT TO REMOVAL?
3 HE CLEARLY WAS, AND SUBJECT TO REMOVAL TO A GREATER EXTENT
4 THAN WHAT MS. MORRISON WAS BECAUSE HE WAS REMOVABLE AT WILL,
5 WHICH WASN'T THE CASE AS FAR AS MS. MORRISON WAS CONCERNED
6 BECAUSE SHE COULD ONLY BE REMOVED FOR CAUSE.
7 IN REFERENCE TO THE SECOND FACTOR: WERE HIS
8 DUTIES LIMITED, AND WAS THERE A LIMITATION ON HIS
9 JURISDICTION? -- THE DEFENSE SUGGESTS A NUMBER OF REASONS AS
10 TO WHY THAT'S NOT THE CASE. ONE OF THE PRINCIPAL ARGUMENTS
11 MADE IN THAT REGARD IS THE FACT THAT THE USE OF THE TERM
12 "RELATED" WOULD IN SOME WAY SUGGEST THAT HIS DUTIES WERE NOT
13 LIMITED AND, THEREFORE, MORE EXPANSIVE THAN WHAT WAS THE
14 SITUATION IN MORRISON.
15 BUT AS THE GOVERNMENT POINTS OUT, IN MORRISON, THE
16 AUTHORITY GIVEN IN THAT CASE WAS TO INVESTIGATE A SPECIFIC
17 INDIVIDUAL. AND I DON'T, OBVIOUSLY, TAKE EXCEPTION WITH
18 WHAT COUNSEL REPRESENTS REGARDING MS. MORRISON'S ATTEMPT TO
19 EXPAND HER AUTHORITY, WHICH WAS REJECTED.
20 HERE THE AUTHORITY THAT WAS GIVEN WAS THE
21 AUTHORITY TO INVESTIGATE WHETHER THERE HAD BEEN AN Page 59


June 14 07 Tr
22 INAPPROPRIATE LEAK OF MS. PLAME'S IDENTITY AS AN EMPLOYEE OF
23 THE CENTRAL INTELLIGENCE AGENCY.
24 AND I THINK IT IS CLEAR, IN REFERENCE TO WHAT THE
25 SCOPE OF MR. FITZGERALD'S AUTHORITY WAS TO INVESTIGATE THAT
1 AND THE USE OF THE WORD "RELATED," THAT IT RELATES BACK TO
2 THE SCOPE THAT HE WAS GIVEN, WHICH MEANS THAT HE COULD ONLY
3 INVESTIGATE AND POSSIBLY PROSECUTE ANY VIOLATION THAT
4 RELATED TO THE LEAKING OF HER INFORMATION ABOUT HER POSITION
5 AS AN EMPLOYEE WITH THE C.I.A.
6 SO I THINK IN THAT CONTEXT, THERE WAS A LIMITATION
7 ON HIS DUTIES AND ALSO A LIMITATION ON HIS JURISDICTION.
8 AND IN REFERENCE TO A LIMITATION ON HIS TENURE,
9 WHILE THERE WASN'T A SPECIFIC DATE INDICATED AS TO WHEN HIS
10 TENURE WOULD END, I THINK IT'S CLEAR THAT THERE IS A
11 LIMITATION BECAUSE ONCE HE COMPLETES HIS INVESTIGATION IN
12 REFERENCE TO THE LEAK RELATED TO MS. PLAME, AND THE
13 PROSECUTION OF ANYBODY WHO IS IDENTIFIED AS HAVING BEEN
14 INVOLVED IN THAT LEAK, AT THAT POINT HIS TENURE IS
15 TERMINATED.
16 REACHING THE CONCLUSION THAT THOSE FOUR FACTORS
17 ARE, IN FACT, WHAT WE HAVE HERE, AND THAT WHILE THERE MAY BE
18 SOME DIFFERENCES, THOSE DIFFERENCES AREN'T SUBTLE ENOUGH TO
19 CONCLUDE THAT THE FOUR MORRISON FACTORS ARE NOT EQUALLY
20 APPLICABLE TO THIS SITUATION -- AND, IN FACT, AS I
21 INDICATED, BECAUSE MR. FITZGERALD IS REMOVABLE AT WILL,
22 WHEREAS MS. MORRISON WASN'T, IT SEEMS TO ME, APPLYING THOSE
23 FOUR FACTORS, THAT THE CIRCUMSTANCES HERE WOULD, IN FACT,
24 MAKE THIS CASE FURTHER FROM THE SUGGESTION THAT THERE WAS A
25 VIOLATION OF THE APPOINTMENT CLAUSE, AS WAS THE SITUATION IN
Page 60


June 14 07 Tr 0
71
1 MORRISON AND, THEREFORE, APPLYING THIS CASE TO THOSE FACTORS
2 IN THAT MANNER, IT IS MY CONCLUSION THAT THE ISSUE REGARDING
3 WHETHER THERE IS AN APPOINTMENT-CLAUSE VIOLATION IS NOT A
4 CLOSE ISSUE FOR THE PURPOSE OF THE ISSUE OF WHETHER
5 MR. LIBBY SHOULD BE RELEASED PENDING APPEAL.
6 I HAVE ALREADY INDICATED MY VIEW IN REFERENCE TO
7 THE OTHER ISSUES THAT COUNSEL HAS RAISED, AND IT IS MY VIEW
8 THAT THOSE OTHER ISSUES ARE NOT CLOSE ISSUES. AND I WOULD
9 HAVE TO CONCLUDE THAT ALTHOUGH HE DOESN'T POSE A DANGER TO
10 THE COMMUNITY AND HE DOESN'T POSE A RISK OF FLIGHT, THAT AN
11 ISSUE THAT'S CLOSE HAS NOT BEEN RAISED AND THAT THERE IS NOT
12 A LIKELIHOOD OF SUCCESS.
13 THE COURT OF APPEALS MAY SEE IT DIFFERENTLY ON AN
14 EMERGENCY MOTION, BUT FROM MY PERSPECTIVE, THAT'S THE WAY I
15 SEE IT. AND, ACCORDINGLY, I WOULD HAVE TO CONCLUDE THAT HIS
16 REQUEST TO BE RELEASED PENDING APPEAL WILL HAVE TO BE
17 DENIED.
18 I WILL PERMIT HIM, OBVIOUSLY, TO SELF-REPORT. SO
19 ONCE A DETERMINATION IS MADE BY THE BUREAU OF PRISONS,
20 UNLESS THE COURT OF APPEALS ALTERS MY RULING, HE WILL HAVE
21 TO REPORT UPON SUCH NOTIFICATION.
22 I AM BEING TOLD, BECAUSE THERE IS A CONFLICT
23 APPARENTLY BETWEEN THE PROBATION DEPARTMENT AND THE
24 COURTROOM CLERK IN REFERENCE TO WHAT IS NEEDED IN ORDER TO
25 ISSUE AN APPROPRIATE JUDGMENT AND COMMITMENT ORDER, THAT THE
U
72
1 CLERK SAYS SHE DESIRES THAT I ISSUE A RULING AS TO WHAT THE
2 SENTENCE WOULD BE ON THE OTHER OFFENSES THAT MR. LIBBY WAS
3 CONVICTED OF. SO I WILL DO THAT. Page 61


June 14 07 Tr
4 I WILL, ON THE OBSTRUCTION CHARGE, SENTENCE HIM TO
5 30 MONTHS IN PRISON; ON THE PERJURY CHARGES, I WILL SENTENCE
6 HIM TO 24 MONTHS IN PRISON; AND ON THE FALSE STATEMENTS
7 CHARGE, I WILL SENTENCE HIM TO SIX MONTHS IN PRISON. THOSE
8 SENTENCES ARE TO RUN CONCURRENT WITH EACH OTHER.
9 MR. ROBBINS: YOUR HONOR, I WOULD RESPECTFULLY ASK
10 THAT THE VOLUNTARY SURRENDER BE STAYED UNTIL THE DISPOSITION
11 OF A MOTION FOR RELEASE IN THE COURT OF APPEALS.
12 THE COURT: YOU HAVE A RIGHT TO APPEAL IMMEDIATELY
13 TO THEM, AND I ASSUME THEY WILL ACT EXPEDITIOUSLY IN
14 REFERENCE TO THAT.
15 MR. ROBBINS: YES, BUT WHAT I CAN'T DO IS CONTROL
16 WHEN THE BUREAU OF PRISONS DIRECTS THE CLIENT TO REPORT
17 IMMEDIATELY AND THUS MOOT THE ENTIRE PURPOSE OF A MOTION FOR
18 RELEASE. I AM RESPECTFULLY ASKING THE COURT TO STAY THAT
19 DATE.
20 THE COURT: I HAVE NEVER SEEN THEM ACT BEFORE
21 SIX-TO-EIGHT WEEKS.
22 MR. ROBBINS: THAT'S RATHER THE POINT HERE. I AM
23 ASKING THE COURT TO STAY THE SURRENDER SO THAT THE COURT OF
24 APPEALS CAN DECIDE WHETHER THE RULING YOU JUST MADE IS
25 RIGHT.
1 THE COURT: I WILL DENY THAT REQUEST.
2 THANK YOU.
3 MR, FITZGERALD: YOUR HONOR, I THINK TECHNICALLY
4 WE NEED TO ADVISE THE DEFENDANT OF HIS RIGHT TO APPEAL.
5 THE COURT: I'M SORRY. YOU'RE RIGHT.
6 MR. LIBBY, YOU DO HAVE THE RIGHT IN THIS CASE TO
7 APPEAL YOUR CONVICTION TO THE COURT OF APPEALS. YOU HAVE
8 TEN DAYS FROM TODAY'S DATE TO FILE THE APPROPRIATE PAPERS Page 62


June 14 07 Tr
9 WITH THAT COURT, LETTING THE COURT KNOW THAT YOU WANT TO
10 APPEAL EITHER YOUR CONVICTION OR YOUR SENTENCE. IF YOU
11 CANNOT AFFORD TO PAY FOR A LAWYER TO REPRESENT YOU ON
12 APPEAL, OR IF YOU CANNOT AFFORD TO PAY FOR THE PAPERS TO BE
13 FILED WITH THAT COURT, THOSE EXPENSES WILL BE PAID FREE OF
14 CHARGE BY THE GOVERNMENT.
15 ANYTHING ELSE?
16 MR. FITZGERALD: NO, YOUR HONOR.
17 THE COURT: THANK YOU.
18 (WHEREUPON, AT 1:35 P.M., THE ABOVE-ENTITLED
19 MATTER WAS ADJOURNED.)
20 CERTIFICATE OF REPORTER
21 THIS RECORD IS CERTIFIED BY THE UNDERSIGNED REPORTER TO
22 BE THE OFFICIAL TRANSCRIPT OF THE PROCEEDINGS INDICATED.
23
24 PHYLLIS MERANA
25
Page 63


B


Office of the Deputy Attorney General
Washington, D.C. 20530
December 30, 2003
The Honorable Patrick J. Fitzgerald
United States Attorney 219 S. Dearborn Street Chicago, IL 60604
Dear Patrick,
By the authority vested in the Attorney General by law, including 28 U.. S C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department
/s/ James B. Comey
James B. Comey
Acting Attorney General


C


Office of The Deputy Attorney (General
Washington, D.C. 20530
February 6, 2004
The Honorable Patrick J. Fitzgerald
United States Attorney Northern District of Illinois 219 S Dearborn Street Chicago, Illinois 60604
Dear Patrick:
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.
Sincerely,
/s/ James B Comey
James B. Comey
Acting Attorney General


D


U.S. v. 1. Lewis Libby Docket Number
REDACTED
12/17/06


11V. c444,4
OPYJAPIA7
Office of Special Counsel 1111Car
12-,6
UNCLASSIFIED
Partrick, Fitzgerald Chimp Office: Damn Retool Belding Washington Cgam Bond &PAYNE
Special Counsel 219 South Dearborn Smog AIM Floor 1450 New YorkAwnie, Ninth Floor
Chicago, Illinois 60504 PIothbotn, DC 20530
(P 2)353-5900 (202)SM-1187
Please address all correspondence to the Washington Wee
Vie Court Security Officer
December 7, 2006
The Honorable Reggie B. Walton United States District Court
for the District of Columbia
3rd Street & Constitution Avenue, N.W. Washington, D.C. 20001
Re: United States v. I. Lewis Libby Dear Judge Walton:
Pursuant to Section 6(c) of the Classified Information Procedures Act (MA), and in conjunction with the hearing conducted on November 29, 2006 and the meeting with your law clerk and counsel for the defense yesterday, we enclose the following:
revised statements for the government's previously provided proposed statement admitting relevant facts (Attachment A);
revised government substitution for defense exhibit 2 (Attachment B);
an ex parte and in camera affidavit (Attachment C) certifying that disclosure of certain classified information at issue would cause identifiable damage to United States' foreign relations and national security, and explaining the basis for the classification of this information. The ex parte, in camera affidavit contains information at paragraphs 11-13, that has also been noticed to the defense in a separate in camera declaration (Attachment D).
We believe the information in the separate in camera declaration (that also appears at paragraphs 11.13 in the ex parte, in camera affidavit) is relevant to the Court's consideration of the substitution proposed by the government for the underlying classified information.
In response to one of the questions raised by your clerk yesterday, we can confirm that the government has no objection to the defendant testifying to the information in the government's proposed statements admitting relevant facts.
UNCLASSIFIED




NU. 444 P. 34
December 7, 2006 UNCLASSIFIED
Page 2
As with the government's prior substitutions, the substitutions provided today are marked "provisionally declassified" because they will only be declassified upon use at trial. Until then, the substitutions are classified at the "Scorer level and should be treated accordingly.
By providing these substitutions pursuant to CIPA § 6(c), the government is not waiving any of its previous objections under CIPA § 6(a), or any objections on grounds of executive privilege.
Respectfully Submitted,
Patrick Fitzgerald
ial Counsel
By: Le.A.-
een M. Kedian.
Deputy Special Counsel
cc: William H. Jeffress, Jr.
John D. Cline
UNCLASSIFIED






FVI F e 4.AFGEJUI 1W,...1CM11 nu.444
Attachment C


t
UNCLASSIFIED
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
CR. NO. 05-394 (RBW)
v.
L, LEWIS LIBBY
also known as Scooter Libby
AFFIDAVIT OF THE SPECIAL COUNSEL PURSUANT TO CLASSIFIED
INFORMATION PROCEDURES ACT SECTION 6(c)(2)
PATRICK J. FITZGERALD, SPECIAL COUNSEL, being duly sworn deposes and says:
I. This affidavit is submitted pursuant to 6(c)(2) of the Classified Information Procedures Act (CIPA), Title 18, United States Code, Appendix 3, which provides, in substance, that the United States may submit to the Court in connection with a motion under CIPA Section 6(c)(1), an affidavit certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information.
2. The matters stated herein are based upon my knowledge, upon review and consideration of documents and information available to me in my official capacity as Special Counsel, discussions that I have had with other justice Department and intelligence community officials, and upon conclusions reached after my review of this information,
3. I have reviewed the Supplemental Declaration of Marilyn A. Dorn, Information Review Officer for the 'National Clandestine Service (NCS) of the Central Intelligence Agency (CIA), which sets forth in detail the bases for the classification of certain information and the
UNCLASSIFIED


( MAY.11.2007 10:54AM M0.444 P.37
damage to the national security that would result from its disclosure. I incorporate that Declaration as a part of this submission,
4. Based upon my review, I have concluded and Thereby oertify that the disclosure of
the classified information discussed in Ms. Dorn's Declaration would cause identifiable damage
to the national security,
5. Pursuant to CIPA § 6(c)(2), I respectfully request the Court to examine this affidavit in camera and ex pane.
fraeoF
Patrick J. Fitzgerald
United States Attorney Acting as Special Counsel
Subscribed and Sworn to before me this 7th day of December, 2006
My Commission Expires : 7- -
OFFICIAL SEAL
MONICA J LE KOSTAJ
Nom Me- &ATE OF ILLINOIS
MY COMMISSION EXPIRES 07/25/10
UNCLASSIFIED






UNITED STATES OF AMERICA. v. I
. LEWIS LIBBY, Defendant.
) CR. NO. 05-394 (RBW)
) Filed In era and
) Filed UNDER
CLASSIFIED IN CAMERA, EX PARTE DECLARATION OF
MARILYN A. DORN, INFORMATION REVIEW OFFICER,
CENTRAL INTELLIGENCE AGENCY
(U) I, MARILYN A. DORN, hereby declare and state:
1. (U) I continue to serve as the Information Review Officer (IRO) for the National Clandestine Service (NCS) of the Central Intelligence Agency (CIA). My declarations dated 12 September 2006, 7 November-2006, 28 November 2006, acid 4 December 2006 are incorporated herein by reference.
2. (U) I make the following statements based upon my personal knowledge and information provided to me in my official capacity.







3. (U) This declaration is submitted as a supplement to my 7 November 2006, 28 November 2006, and 4 December 2006
declarations, which were submitted in support of the Government's proposed redactions, substitutions, and summaries
under CIPA section 6(c). I understand that the Court has made
certain rulings concerning the adequacy of the Government's CIPA section 6(c) substitutions that would require the disclosure of extremely sensitive national security information. I have addressed those rulings in my declaration dated 4 December 2006.





3
TO
4




4




5










B




9





(U) I hereby declare under penalty of perjury that the
foregoing is true and correct.
(U) Executed this 7th day of December, 2006.
Marl yn A. Dorn
Information Review Officer National Clandestine Service Central Intelligence Agency
10






E


Page 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
X
UNITED STATES of AMERICA Criminal Case No.. 05-394
I. LEWIS LIBBY,
Defendant,
X Washington, D.C.
Tues, January 23, 2007 1:40 P M.
TRANSCRIPT OF TRIAL, AFTERNOON SESSION BEFORE THE HONORABLE REGGIE B. WALTON UNITED STATES DISTRICT JUDGE, and a JURY
APPEARANCES:
FOR THE GOVERNMENT: PATRICK FITZGERALD, SPECIAL COUNSEL DEBRA R. BONAMICI, DEPUTY SPEC. COUNSEL U.S. DEPT, OF JUSTICE
OFFICE OF SPECIAL COUNSEL
219 South Dearborn Street
Chicago, IL 60604
(312) 353-3741
PETER ZEIDENBERG, AUSA KATHLEEN M. KEDIAN, AUSA U.S. DEPT. OF JUSTICE 1400 New York Ave., N.M. Room 12-405
Washington, D.C. 20005 (202) 514-1412
Court Reporter: Lisa Walker Griffith, RPR U.S. District Courthouse Room 6409
Washington, D C 20001 (202) 354-3247
Proceedings recorded by mechanical stenography, transcript


Page 2
1 APPEARANCES: (Cont'd.)
2 FOR THE DEFENDANT: JOHN CLINE, ESQUIRE
JONES DAY
3 555 California Street, 26th Floor San Francisco, CA 94104
4 (415) 626-3939
5
6 WILLIAM JEFFRESS, ESQUIRE BAKER BOTTS, LLP
7 The Warner
1299 Pennsylvania Ave., N.W. 8 Washington, D.C. 20004-2400 (202) 639-7751
9
10 THEODORE WELLS, JR., ESQUIRE PAUL, WEISS, RIFKIND, WHARTON
11 & GARRISON, LLP
1285 Avenue of the Americas
12 New York, NY 10019-6064 (212) 373-3089
13
14
15
16
17
18
19
20
21
22
23
24
25


Page 3
1 AFTERNOON SESSION
2 MR, FITZGERALD: Judge, just two brief matters. I
3 don't like to interrupt opposing counsel's opening statement.
4 But two things brought me particular concern, the statement
5 Mr. Wells made where he said, "I can't tell you whether she
6 was or she wasn't classified."
7 I think it implies to the jury either he was
8 testifying that either he has no personal knowledge, which is
9 irrelevant, or that there was something that he wanted to
10 share with the jury and couldn't. And we've taken the issue
11 out of the case, but I think to lead the jury to believe that
12 there's something he wanted to share about whether she's
13 classified or not is not proper.
14 The second point is that, Mr. Wells said that,
15 they're making me read a script. The Government agreed to
16 what I could say. I think that's wholly inappropriate.
17 There was a ruling pursuant to CIPA. It's a court ruling.
18 It's no different than, if evidence is kept out that the
19 Government might offer, for us to stand up and say we can't
20 put in certain evidence because the defendant kept it out.
21 That would be wholly inappropriate.
22 So the notion that, after all we went through in
23 the CIPA process where the defendant's constitutional rights
24 were safeguarded, that somehow we're doing something to
25 defense inappropriate, I think it should not be said that


Page 47 But it has nothing to do with the wife. But you
2 want to talk about the week this guy was having? Tenet
3 statement, N.I.E., Air Force Two. So all we want to do is
4 put the facts in context.
5 Now, the last thing I want to discuss and then I
6 will sit down is what his day job was about, what it was
7 about in terms of being the National Security Advisor. And,
8 as I told you earlier, there's a statement that the
9 Government has agreed to that I can read to you.
10 And I want to make clear, when I said earlier that
11 I'm only permitted to talk to you about certain things, is
12 what I'm permitted to talk to you about is the result of
13 discussions with Judge Walton and the Government and the
14 intelligence community. Judge Walton has made the decision,
15 and he alone has made the decision, about the parameters that
16 I can discuss.
17 As I said, I want to make clear, I'm not faulting
18 the Government in any way, shape or form. This is very
19 serious business, and the ultimate arbiter, the ultimate
20 decision-maker about how I should proceed in terms of what I
21 tell you, has been made by Judge Walton and Judge Walton
22 alone. I want to make that crystal clear.
23 Now, I want to walk you through the statement. I'm
24 going to read it to you, okay? I'm going to read it to you
25 because I'm not supposed to deviate from a word, okay? This


Page 48 is what I'm permitted to say. But there's no dispute about
2 Mr. Libby's day job. There's no dispute about what he was
3 doing. And he's doing it on those days, the 7th, the 8th,
4 the 9th, the 10th, and the 11th.
He was doing it throughout the year. But in terms
6 of what was going on that week that they're now saying, well
7 dog gone it, don't you remember the specifics of the conversation on the telephone call on the 11th or the 12th?
9 Put things in context. That's all I ask.
10 The statement reads, "Government's statement
11 admitting relevant facts.
12 The Government agrees with the defense that, at all
13 relevant times, Mr. Libby was employed as both the Chief of
14 Staff and National Security Advisor to the Vice President,
15 The Government agrees that Mr. Libby worked long
16 hours, received daily intelligence briefings and attended
17 many meetings concerning important matters of national
18 security, including participating in many meetings of the
19 National Security Council as reflected on Mr. Libby's
20 calendars."
21 Before we go to the next slide, you're going to get
22 to see some of Mr. Libby's calendars. You're going to see
23 what his day looked like, because it wasn't just national
24 security meetings. He was also going to domestic policy
25 meetings. He was required to go to those meetings. They


Page 49 were also part of his job. So we're going to show you what
was going on that week because, if you're going to judge him, judge him fairly in terms of the total picture, not this distorted picture about the wife,
Let's go to the next slide. This continues the statement.
"In addition, the Government agrees that Mr. Libby's duties included, but were not limited to:
i. monitoring information concerning terrorist threats to the United States, both at home and abroad, including but not limited to, threats from groups Al-Qaeda and Hezbollah.
ii. monitoring Homeland Security preparedness.
iii. monitoring information concerning foreign countries seeking to develop nuclear weapons, particularly but not exclusively, North Korea and Iran.
iv. monitoring the efforts of individuals, specifically including a person named A.Q. Khan, involved in the efforts to sell the technology needed to develop nuclear weapons.
v. monitoring the progress of the war in Iraq, specifically including American troop strength, as well as the development of a new government in Iraq.
vi. monitoring the volatile situation in the Middle East.


Page 50
1 vii) dealing with urgent National Security issues
2 as they arose, including a terse disagreement between the
3 government of Turkey and the United States in early
4 July 2003 when Turkish soldiers were taken prisoner by
5 American military forces in Iraq.
6 And when the United States had to formulate an
7 approach to addressing the security issues in Liberia,
8 including the evacuation of the American Embassy in Liberia,
9 when the President of Liberia was deposed in early
10 July 2003."
11 And come back to both of those later because
12 they were both occurring, the Turkey crisis and the Liberian
13 crisis during the same week as Mr. Wilson's crisis.
14 Final paragraph. "During all relevant times, Mr.
15 Libby was responsible for providing advice to the Vice
16 President on how the United States should respond to the
17 various threats or respond to various problems or crises.
18 Much of the information Mr. Libby received regarding the
19 above topics was highly classified, and a substantial amount
20 of the information remains classified even today."
21 I thought it was the last slide and I apologize.
22 "In June, July, and August, 2003, including when he
23 received intelligence briefings on June 14, July 17, July 8
24 and August 20, 2003, Mr. Libby was concerned that Ansar
25 al-Islam had established a link with Al-Qaeda and was


Page 51 developing a presence in the United States.
2 There was information that Al-Qaeda had made
3 inquiries about nuclear weapons, and Mr. Libby was concerned
4 that Al-Qaeda may have acquired them.
5 In the summer of 2003, Mr. Libby was very concerned
6 based on information he found credible that Al-Qaeda had
7 developed anthrax. And that the anthrax was already in the
8 United States, and it was unaccounted for, in preparation for
9 a possible attack by unaccounted-for Al-Qaeda operatives."
10 Now, here's a timeline. And eventually, when I
11 give my summation when this case is over, I'm going to put
12 everything together. I'm going to show you what his day job
13 was involved that week. I'm going to show you what the meat
14 grinder was involved with. I'm going to show you what the
15 domestic policy was involved with.
16 So that you can see when he is asked three months
17 later about a snippet of a conversation involving a telephone
18 call, how his recollection may or may not be accurate but it
19 is certainly understandable if it was not accurate. It is
20 certainly understandable given the circumstances of
21 everything going on. And that how important it is that no
22 one walk away with the impression that the wife was on
23 people's radar screen like some big issue.
24 It was not. She was not.
25 Now, this time chart just shows you what's going on

FITZTALE

UNITED STATES COURT :. - -_/- .S

FOR DISTRICT riF yyL:_i:ye:;:,-;

uNit 1 D STATES COURT OF APPEALS
JUN 2 2 A9R THE DISTRICT OF COLUAIBIA CIRCILA

AMERICA, ERICA, UTCTT-4
Case No. 07- 3olaz Appeal from the
United States District Court
for the District of Columbia

I. LEWIS LIBBY,

also known as Scooter Libby, D. Ct. No. CR -5-394 (RBW)
Plaintiff-Apellee PP ,

V.
CLERK
ii TED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT FILED
JJN 2 2 2007
Defendant-Appellant.

PV GOVERNMENT'S RESPONSE TO APPELLANT'S
CO\ APPLICATION FOR RELEASE PENDING APPEAL //r
Patrick J. Fitzgerald Special Counsel
Debra Riggs Bonamici Edmond E. Chang James P. Fleissner Kathleen M. Kedian Peter R. Zeidenberg Deputy Special Counsels 1400 New York Ave., N.W. Washington, D.C. 20530 (202) 514-1187

Date: June 22, 2007


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TABLE OF CONTENTS

Page

Defendant's Appointments Clause Claim 1

Evidentiary Rulings Regarding the Memory Defense 12

Exclusion of the Testimony of Andrea Mitchell 17

CONCLUSION 19


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On March 6, 2007, defendant was convicted by a jury of obstruction of justice, making false statements, and perjury, based on evidence the district court described as "overwhelming" (6/5/07 Tr. 80; 6/14/07 Tr. 58). On June 14, 2007, the district court imposed a sentence of thirty months' imprisonment and denied defendant's motion for release pending appeal on the ground that the issues defendant planned to raise on appeal were not "substantial" and would not likely result in reversal or a new trial. See 18 U.S.C. § 3143(b).1

Defendant seeks an order under Fed. R. App. P. 9(b) and Circuit Rule 9(b). Because he has failed to show that any issues he will raise on appeal present a substantial question the resolution of which in his favor would likely lead to reversal or a new trial, the application should be denied. See United States v. Perholtz, 836 F.2d 554, 555-56 (D.C. Cir. 1987)(per curiam)(requiring two-part inquiry).

1. Defendant's Appointments Clause Claim

The district court correctly found that defendant's Appointments Clause argument presents no substantial issue on appeal. In this case, the Acting Attorney General ("AAG"), when confronted with allegations of possible criminal conduct by
`Under § 3143(b), confinement pending appeal is the exception rather than the rule, and release may be granted only upon an "affirmative finding that the chance for reversal is substantial." S. Rep. No 225, 98th Cong., 1st Sess. 27, reprinted in 1984 USCCAN 3182, 3210.


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high-ranking Executive Branch officials, made the judgment to delegate authority over the day-to-day conduct of the investigation to foster public confidence that the case was being handled fairly. United States v. Libby, 429 F. Supp 2d at 33, 45-46 (Ex. A). In a letter dated December 30, 2003, the AAG delegated "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity." Ex. B. In a letter dated February 6, 2004, the AAG clarified several aspects of the delegation. Ex. C.2

Remarkably, defendant's application, while suggesting that the AAG might have addressed the urgent conflict-of-interest issue by opting to seek new legislation from Congress (Def. App. at 3), contains no mention of the statutory provisions under which the AAG acted. In fact, the delegation was made pursuant to the AAG's statutory authority under 28 U.S.C. § 510 to delegate any of the functions of the Attorney General to any other officer of DOJ.3

Defendant argues that despite this clear statutory authority, the nature of the
2The record in the district court concerning the delegation also included Exhibits D, E, and F.

'Although the district court decided to reach the Appointments Clause claim, the government submits that the Appointments Clause is not implicated because this case involves a lawful delegation of authority to an officer of the Department of Justice previously appointed by the President and confirmed by the Senate. Weiss v. United States, 510 U.S. 163. 170-73 (1994).
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delegation in this case was such that the Special Counsel was no longer an "inferior officer" under the Appointments Clause. Defendant's argument so lacks merit that it does not present a substantial issue. The primary defect in defendant's argument, as the district court concluded, is that this case "falls squarely into the mold" of Morrison v. Olson, 487 U.S. 654 (1988), which is binding precedent for lower federal courts. 429 F. Supp. 2d at 44. Defendant's principal argument is that Morrison is not the controlling case because Morrison was eclipsed by Edmond v. United States, 520 U.S. 651 (1997), and that the Special Counsel was not an inferior officer under Edmond 's alleged new test that requires inferior officers to be "directed and supervised at some level." 520 U.S. at 663 (emphasis added). This argument presents no substantial question for this Court.

In Morrison, the Supreme Court rejected an Appointments Clause challenge to the Ethics in Government Act, concluding that the Independent Counsel was an inferior officer. The Court did not draw a precise line of demarcation between principal and inferior officers because it found that the Independent Counsel "clearly [fell] on the 'inferior officer' side of that line." Id. at 671. The Court relied on several factors: the Independent Counsel (1) could be removed by the Attorney General for good cause subject to judicial review; (2) was "empowered under the Act to exercise only certain, limited duties" and was required to comply with Department
3


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of Justice policies to the extent possible; (3) was given limited jurisdiction; and (4) was limited in tenure. Id. at 671-72. Based on these factors, the Court held the Independent Counsel to be an inferior officer. Id.

In this litigation, defendant has suggested that this case is not controlled by Morrison, but by Edmond. Defendant argued in the district court that Edmond may have "wholly supplanted" the approach in Morrison. Def. App. at 19, n.8, 23. In this Court, defendant is a bit more mysterious about his reading of Edmond. Whatever defendant's precise argument, a close look at Edmond clearly reveals that the Supreme Court did not dilute or disavow, much less overrule, Morrison.' The district court's careful opinion clearly establishes this point. 429 F. Supp.2d at 37. Significantly, Edmond expressed no doubt about the outcome in Morrison and no reservations about the application of the Morrison factors to the determination of whether a special prosecutor is an inferior officer. Defendant's argument concerning Edmond is asking this Court to conclude that Morrison is no longer good law. As the Supreme Court has stated, this Court cannot do that. Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989). This Court must apply
'Defendant suggests that Morrison may not apply to this case because Morrison involved an act of Congress that had been signed by the President. Of course, this overlooks that the AAG had clear statutory authority to make the delegation in this case. See 429 F.Supp 2d at 30-34, attached as Ex. F.
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Morrison as the controlling precedent, and look to whether the Special Counsel is an inferior officer based on the Special Counsel's being subject to removal at will, and his limited duties, jurisdiction, and tenure.'

The district court made factual findings regarding application of the Morrison factors to the delegation of authority to the Special Counsel, and concluded that this case presents a stronger case for inferior officer status than that considered in Morrison. 429 F. Supp. 2d at 38-45. The district court concluded that "the Special Counsel's authority is limited." 429 F. Supp. 2d at 40-41. Accordingly, the Special Counsel cannot make any decisions that extend beyond his express jurisdiction." Id. at 41. The district court further concluded that the Special Counsel had no authority to disregard DOJ policies promulgated by the Attorney General. Id. at 42. Finally, the district court concluded that "the Special Counsel's tenure is both limited and temporary." Id. The conclusion about the Special Counsel's tenure also was supported by the fact that the Special Counsel's delegation could be revoked at will.
'Defendant contends that the Special Counsel cannot meet the "test" allegedly adopted in Edmond. Def. App. at 5. However, as the district court concluded, the Special Counsel's "appointment would also likely survive under Edmond" because the court "would have no basis for adopting the view that an inferior officer must be under active day-to-day supervision. Rather, an inferior officer's work must be simply be 'directed and supervised at some level.'" 429 F. Supp 2d at 45, n.17. The district court concluded that for purposes of the Appointments Clause, "the Special Counsel is subject to the direction and control of the Deputy Attorney General." Id. Thus, even if Edmond applied, there is no substantial issue on appeal.
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Id. at 43. In Morrison, the Independent Counsel was only removable for good cause.6 Based on all these factors, this is a much easier case than Morrison to find that a special prosecutor is an inferior officer.

Defendant's application advances several specious arguments. First, defendant contends that letter of February 6, 2004 "expressly exempted" the Special Counsel from following all DOJ policies. Def. App. at 7. Defendant interprets the sentence stating that the Special Counsel's position was not "defined and limited" by 28 C.F.R. Part 600, the regulations providing for appointment of a Special Counsel from outside the Department, as freeing the Special Counsel from obeying any and all Department regulations. Defendant's logic runs like this: under § 600.7(a), an outsider appointed as a Special Counsel must comply with all Department rules and regulations, so if a Department insider is appointed with the proviso that he is not "defined and limited" by Part 600, then the Department insider does not have to follow Department rules and regulations. That bit of sophistry was roundly rejected by the district court, and rightly so. The district court found that "the only logical way" to interpret the delegation in this case was to find that the Special Counsel was not free to ignore
6h is telling that Justice Scalia, the lone dissenter in Morrison, stated if the Independent Counsel at issue in that case been removable at will, "then she would be subordinate to [the Attorney General] and thus properly designated as inferior." 487 U.S. at 716 (Scalia, J., dissenting).
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rules and regulations. 429 F. Supp. 2d at 41-42. That clearly was the intent of the AAG and the understanding of the Special Counsel, who, in fact, complied with Department policies, including the guidelines regarding media subpoenas. The AAG's decision not to appoint an outsider under Part 600 was made for sound reasons, including avoiding unnecessary delay of the investigation.

Second, the defendant suggests that the Special Counsel was relieved of any requirement to make reports of significant events in the case and that the lack of any reporting requirement rendered the AAG's removal authority "an empty formality." Def. App. 7-8. This argument lacks merit. As an initial matter, the AAG may well have preferred to restrict the required flow of information to promote the public's confidence in the independence of the investigation. Not requiring regular reporting did not, however, convert the Special Counsel into a principal officer because the power to remove the Special Counsel and ultimate political accountability remained with the AAG. Furthermore, as a practical matter, much information about the Special Counsel's significant investigative steps was in the public record and therefore available to the AAG in exercising the power to remove the Special Counsel. In any event, the power to remove at will carries with it the power to demand information if the AAG deemed it necessary.

Finally, defendant grasps at the execution of a CIPA affidavit in November
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2006 as evidence of an Appointments Clause error in late 2003 and early 2004. That argument is as unpersuasive as it is untimely. Defendant first raised this issue in his reply brief for bond pending appeal in the district court. Defendant's claim not to have known before trial that the Special Counsel signed relevant CIPA affidavits (Def. App. 9 n.2) is simply not true in light of public court filings.'

Had defendant timely raised the issue, the government could have mooted the issue either by seeking a co-signature of another Department official or by obtaining permission to seal the hearing or submit an ex parte affidavit on another basis. Defendant's failure to renew his Rule 12(b)(3)(A) motion when he was on notice of the § 6(c)(2) affidavit results in waiver.' Defendant bears the burden of making the
'On September 5, 2006, the government publicly filed and served a § 6(a) certification, plainly signed by the Special Counsel, that the hearing "may result in the disclosure of classified information," R. 134 (Ex. G). On November 7, 2006, the government publicly filed and served a "Motion to Seal Affidavit of the Special Counsel Pursuant to Classified Information Procedures Act Section 6(c)(2)." R. 172 (emphasis added) (Ex. H). The district court then granted that motion, and the publicly-docketed order repeated that the court had considered the motion to seal the "Affidavit of the Special Counsel Pursuant to Classified Information Procedures Act Section 6(c)(2)." R. 174. (Ex. I). Thus, defendant's citation to "a copy of a cover letter at the time... [which] did not state that he [Special Counsel] ... had signed that affidavit," Def. App. 9 n.2, paints an inaccurate picture of what defendant knew.

Ted. R. Crim. P. 12(e); see also United States v. Mitchell, 951 F.2d 1291, 1296 (D.C. Cir. 1991) (Rule 12(b) motions "must contain facts and arguments that make clear the basis of defendant's objections") (internal quotation and citation omitted); United States v. Colon-Munoz. 192 F.3d 210, 217-18 (1 st Cir. 1999) (applying rule 12(b) to Appointments Clause claim); United States v. Solomon, 216 F. Supp. 835,
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factual record on his Appointments Clause claim, and reliance on the affidavit as evidence comes too late.

Even if defendant did not waive reliance on the CIPA affidavit, there are three independent reasons why the affidavit does not manufacture a close question. First, the only conceivable way that the signing of the affidavit can support an Appointments Clause claim is if AAG Comey intended to, and in fact did, delegate that signatory authority. Defendant relies solely on the fact of the Special Counsel's signature in 2006 as evidence that AAG Comey did so in 2003 and 2004. However, that bare fact is insufficient to show that, if CIPA's signatory authority is indeed not delegable, AAG Comey intended to delegate such authority. Rather, the AAG's delegation to the Special Counsel, explicitly premised on 28 U.S.C. § 510, which generally permits the delegation of "any function of the Attorney General," could not reasonably be construed to express an intent by the AAG that the Special Counsel assume a function that could not, as a matter of law, be delegated where a later-enacted, more-specific statute – such as CIPA § 14 – prohibited the delegation. There is simply no evidence that the AAG intended, by his reliance on a general statute, to override a specific statute that limited what functions could be delegated. Thus, the Special Counsel's signature on the CIPA affidavits was, at most, inconsistent with a
837 (S.D.N.Y. 1963).
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statutory provision but not violative of the Appointments Clause. Defendant has not, and cannot, identify any prejudice flowing from the Special Counsel's request for an in camera § 6(a) hearing or certification concerning the harm of disclosure under § 6(c), and thus any technical breach should clearly be harmless and not result in a new trial.'

Second, even if defendant could somehow show that the AAG granted the Special Counsel the authority to sign the § 6(c)(2) affidavit, that delegation would not elevate the Special Counsel to a principal officer because the affidavit was ministerial. Section 6(c)(2) simply provides that the "United States may" — but is not even required to — submit "an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security . . . and explaining the basis for the classification of such information." Accordingly, the § 6(c)(2) affidavit simply certifies that damage would result from disclosure and the basis for the classification — an unsurprising certification given that
'Such a statutory error would clearly be subject to harmless error review, see United States v. Gordon, 829 F.2d 119, 127 & n.9 (D.C. Cir. 1987), and even more onerous for defendant, waiver or plain error review in this instance because he did not timely raise the issue. Indeed, virtually all constitutional errors are subject to harmless error review, and only a "very limited class" of fundamental constitutional errors are so intrinsically harmful that they require reversal without a harmless error inquiry. Johnson v. United States, 520 U.S. 461, 468 (1997) (listing only six examples).
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classified information is, by definition, information whose disclosure could, at the

very least, reasonably be expected to cause damage to the national security. Exec.

Order 12,958, §§ 1.1(c), 1.3(a)(3).

Furthermore, those affidavits made the same request to the district court as

every Assistant United States Attorney — who are indisputably inferior officers —

would make were there no such thing as the Classified Information Procedures Act. Section 17.17 of the Department of Justice's regulations direct that, even in those

cases where CIPA is not invoked, federal prosecutors must request that the district

court apply "appropriate" safeguards for classified information. 28

C.F.R.§ 17.17(c).10 Thus, the non-principal officer nature of the § 6(c)(2) affidavit"

is supported by the fact that any federal prosecutor should have sought the same relief
10On the listing of examples of potential safeguards are closing the courtroom, and seeking relevancy and materiality findings by the district court. §§ 17.17(c)(3), 17.17(c)(1). And § 17.17(c) provides a non-exclusive set of examples of "appropriate security safeguards," which would naturally include asking the district court to provide defendant with substitutions for the classified information. Cf. Old Chief v. United States, 519 U.S. 172, 180 (1997) (invoking Federal Rule of Evidence 403 to require acceptance of defendant's proposed stipulation).

"The ministerial nature of the § 6(c)(2) affidavit contemplated by CIPA is borne out by the actual filing in this case, which was 1.5 pages and relied on an attached affidavit of a CIA representative.
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regardless of whether CIPA existed or not.'

Lastly, even if defendant could prove that the AAG intended to delegate authority to sign the § 6(c)(2) affidavit – and defendant has not and cannot – attempting to delegate such ministerial authority would not transform the Special Counsel to principal officer status as § 14 permits delegation to officials who are apparently inferior officers: namely Assistant Attorney Generals.'

H. The Court's Memory Defense Evidentiary Rulings

Throughout the CIPA hearings, defendant represented that his testimony would
'Furthermore, the ministerial certifications under § 6(a) and § 6(c)(2) are radically different from an objection filed pursuant to § 6(e), which has the extraordinary effect of mandating that a district court, despite having found that disclosure of classified information is necessary for defendant to have a fair trial, preclude the defendant from disclosing the information. § 6(e)(1). Thus, United States v. Fernandez is inapposite because it addressed the Attorney General's authority to file a § 6(e) affidavit. 887 F.2d 465, 471 (4th Cir. 1989) ("The constitutional concerns that would be raised if the power to protect national security information were vested in a prosecutor not fully accountable to the President therefore need not engage us, for as long as the Attorney General can file a section 6(e) affidavit prohibiting absolutely the disclosure of classified information by a criminal defendant, national security cannot be compromised.").

"Section 14 permits delegation of the Attorney General's CIPA functions to any Assistant Attorney General of the Attorney General's choosing. There are 12 Assistant Attorney Generals assigned to defined subject matters (ranging from the Criminal Division to Administration), five of whom report to the Associate Attorney General, the third-ranking official in the Department. Given that United States Attorneys. who are the chief law enforcement officers for their districts and who report to the Deputy Attorney General, are inferior officers, it would be remarkable if each of the 12 Assistant Attorney Generals were held not to be inferior officers.


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lay the foundation for the relevance of certain classified information he sought to introduce, and, the district court based its CIPA § 6(a) relevancy determinations on those representations."

Among the substitutions prepared by the government during the proceedings under CIPA § 6(c) was a one-page document entitled "Statement Admitting Relevant Facts," which described the nature of defendant's job, and his duties and responsibilities with respect to a number of national security issues:5 The admission
"See Ex. J, United States v. Libby, 475 F. Supp.2d 73, 85, 86 n.14 (D.D.C. 2006)("During the course of the CIPA hearings, this Court concluded that certain pieces of evidence were relevant to assist in establishing the defendant's 'memory defense' based upon the expectation that the defendant's own testimony would establish that his attention was consumed by various matters other than the key events outlined in the indictment").

For a sampling of relevant cites from the CIPA hearings, see R. 280 at pages 2 - 5, which is attached as Ex. K. In addition, the defendant filed a brief, "Memorandum of I. Lewis Libby Concerning Admissibility of Documents to Corroborate His Potential Trial Testimony," which made clear that the classified information he was seeking to offer would provide "tangible and contemporaneous support for Mr. Libby's testimony." R. 150 at 2.

'Defendant's characterization of this document as an unqualified admission is baseless. See Libby, 475 F. Supp.2d at 86 (stating,"[i]n no way can the Statement reasonably be construed as an unqualified admission of fact that was intended to bind the government (or this Court, which approved the substitution) even if the defendant chose not to testify.)" The title came from CIPA § 6(c)(1)(A), ". . the United States may move that, in lieu of the disclosure of such specific classified information, the Court order .. . the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove . . . ." (emphasis added).
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at trial of this substitution was conditioned on the relevancy determinations the district court had made during the CIPA § 6(a) proceedings, e.g., without the foundational predicate for the relevance of the information that was being substituted, the substitution itself certainly could not be relevant and admissible.'

At trial, after the defendant chose not to testify, the district court ruled that without the defendant's testimony, the Statement and portions of the intelligence briefing information were inadmissible under Federal Rules ofEvidence 401 and 403; however, the court permitted the defendant to offer some evidence relating to his intelligence briefings, including extremely detailed information from briefings on one key date. See Libby, 475 F. Supp.2d at 85-97; Tr. 2/14/07 a.m. at 68.

Defendant claims that exclusion ofthe Statement and extra intelligence briefing information (along with preclusion of his memory expert and ordering allegedly
'Defendant's perfunctory challenge to the adequacy of the government's substitutions lacks any merit. Def. App. at 16. Because defendant failed to use the majority of the substitutions at trial, he cannot claim that a different ruling on their adequacy would result in reversal. Moreover, the government's final substitutions were, as the district court found when looking at them as a whole, more than sufficient to give the defendant "substantially the same ability to make his defense," as is required under CIPA. See Ex. L, 467 F. Supp.2d 20 (D.D.C. 2006).The court's determination is entitled to substantial deference. See United States v. Rezaq, 134 F.3d 1121, 1142-1143 (D.C. Cir. 1998) ("The district court's substitution decisions turned on the relevance of the facts contained in the discoverable documents, and are therefore reviewed, like other relevance decisions under CIPA, for abuse of discretion.").
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inadequate substitutions) "eviscerated" his memory defense and "unconstitutionally burdened his exercise of a Fifth Amendment right." Def. App. at 11.

There is no "close question" as to whether the defendant's Fifth Amendment right was burdened. Nothing that occurred during CIPA or at trial "bound" the defendant to take the stand in his own defense. Rather, he was on notice through the representations he made to the district court during CIPA, and through the court's explicit rulings based on those representations, that the relevance of classified information he was seeking to introduce to show that he was "consumed" or "obsessed" with matters other than Ms. Wilson was predicated on his own testimony. Without defendant's testimony, this information would not be sufficiently relevant to be admissible. As the district court held, by excluding evidence which was not independently relevant and would be unduly prejudicial, "the Court did not preclude the defendant from exercising his choice of whether and when to testify. Indeed, the defendant was entitled to adopt a different course until the very close of his case, consistent with the dictate of Brooks." Libby, 475 F. Supp.2d at 95 (citing Brooks v. Tennessee, 406 U.S. 605, 609 (1972)). The district court's decision did not burden defendant's Fifth Amendment rights; rather, it was a routine evidentiary ruling fully supported by the record of the CIPA hearings, entitled to substantial deference. See United States v. Garner, 396 F.3d 438, 440 (D.C. Cir. 2005) (district court's
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evidentiary rulings reviewed for abuse of discretion).

Second, defendant's claimed "evisceration" of his memory defense simply did
not occur. Defendant introduced a substantial portion of the information contained
within the Statement (some of it verbatim from the Statement), as well as a substantial
amount of intelligence briefing information, through, for example, the testimony of
John Hannah and a stipulation for his CIA briefings. See 2/13/07 Tr. A.M. 57-89;
2/14/07 Tr. A.M. 69-74 (Ex. M and NV Thus, even assuming the doubtful
proposition that the Statement and material's exclusion presents a substantial
question, a favorable appellate ruling would not result in a reversal or a new trial."
Nor does the district court's denial of defendant's motion to admit expert
testimony provide a basis for granting defendant release pending resolution of his
appeal. The district court properly performed the "gatekeeping" function mandated
by Daubert v. Merrell Dow, 509 U.S. 579, 592-93 (1993), in determining that the
defendant had failed to establish that the testimony would "assist the jury in
understanding or determining" the facts at issue, as required by Fed. R. Evid. 702, and
"In fact, as the district court found, admitting the first two paragraphs of the Statement would have been cumulative in light of Mr. Hannah's testimony. See Libby 475 F. Supp. 2d at 88.

'Defendant now seeks to convert his trial decision not to call additional witnesses into a claim that the district court precluded him from offering that information. See Libby, 475 F. Supp. 2d at 91 n.21.
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exercised its discretion in excluding the testimony under Fed. R. Evid. 403 because its minimal probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.19 The district court's evidentiary determinations under Rules 702 and 403 are entitled to substantial deference.

III. Exclusion of the Testimony of Andrea Mitchell

At trial, defendant sought to impeach Tim Russert's testimony that he did not tell defendant that Mr. Wilson's wife worked at the CIA (2/7/07 PM Tr. 11, 26) purportedly by showing that Ms. Mitchell knew of Ms. Wilson's CIA-employment prior to the publication of Robert Novak's column and may have conveyed that information to Mr. Russert. Ms. Mitchell had made an out-of-court statement which defendant argued indicated that she knew that Ms. Wilson worked at the CIA prior to the publication of Mr. Novak's column, and prior to defendant's conversation with Mr. Russert. As the district court found, however, the prior statement was at best ambiguous, and the interpretation defendant was pressing had been publicly refuted by Ms. Mitchell on numerous occasions.' Thus, it was clear defendant's sole
'See Ex. 0. United States v. Libby, 461 F. Supp.2d 3 (D.D.C. 2006).

"Ms. Mitchell's attorney represented to the court that, if called, Ms. Mitchell would testify that she had no knowledge of Ms. Wilson prior to the publication of Mr. Novak's column. See Libby, 475 F. Supp. 2d 73, 79-80. Ms. Mitchell and her
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purpose in calling Ms. Mitchell was to put the October 3, 2003 statement before the jury21

As the district court correctly held, the October 3, 2003 statement was not admissible as substantive evidence, and calling Ms. Mitchell as subterfuge to place her otherwise-inadmissible statement before the jury violated not only well-settled authority in the D.C. Circuit, but also authority from other jurisdictions. See United States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986) (holding that it was "entirely inappropriate" for the prosecution to call a witness for the sole purpose of bringing about the admission of a statement that was not independently admissible).22 The question of whether Johnson and other authorities bind the government but exempt defendants is not a "close" question – it is well settled that the Sixth Amendment does not give a defendant carte blanche to introduce inadmissible evidence. E.g., Taylor,
employer repeatedly denied that she had been a recipient of a leak regarding Ms. Wilson, and explained that her ambiguous statement should not be taken to mean that she knew about Ms. Wilson's CIA employment before Novak's column. See id.

21The defense requested and was granted an opportunity to question Ms. Mitchell; however, defense counsel declined the court's offer to allow questioning under oath and outside the presence of the jury. 2/13/07 AM Tr. 18-23. See also 475 F. Supp. 2d at 82, n.8. Defendant thus waived the claim that Ms. Mitchell's account would differ from her attorney's representation had she been placed under oath.

22 See also United States v. Peterman, 841 F.2d 1474, 1479 n.3 (10th Cir. 1988)(citing authorities from every circuit).
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484 U.S. at 410 (1988).

The district court's evidentiary determination that the probative value of Ms. Mitchell's testimony was minimal at best (as the jury would be asked to draw a string of speculative inferences), and was substantially outweighed by the risk of confusion and unfair prejudice, is entitled to substantial deference.' Moreover, any error in excluding Ms. Mitchell's testimony is harmless, especially in light of the overwhelming evidence of defendant's guilt.

CONCLUSION

The government respectfully asks that defendant's application be denied. Respectfully submitted,

tk-C •

PATRICK J.\FITZGERALD Special Counsel

'These inferences would have been powerfully rebutted by, among other things, evidence indicating a search of NBC News' files revealed no document reflecting any information regarding Ms. Wilson prior to publication of Novak's

column. See Motion to Quash Subpoenas, at 1, United States v. Libby, 06-MS-126 (Apr. 18, 2006). Ex. P.

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