FITZGERALD - Affadavit and Government Response

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA )) Misc. No. 05-458 (RBW) V. )) I. LEWIS LIBBY, ) also known as “Scooter Libby” ) PATRICK J. FITZGERALD, being duly sworn, deposes and says: 1. 1 am the United States Attorney for the Northern District of Illinois, having been appointed by the President and confimied by the Senate in October 2001. For purposes of the instant matter, I serve in the capacity of“Special Counsel.” I submit this affidavit in response to the applications ofDow, Jones and Company, Inc. and The Associated Press for denial of the government’s 10, 2005 motion for a protective order. I also submit this affidavit in support ofa modified proposed protective which is which is annexed as Exhibit A. 2. As the Court is aware, defendant Lewis “Scooter” Libby has been charged in an indictment with one count ofobstruction ofjustice, two counts ofperjury and two counts of making false statements. In reviewing Rulel6 material discoverable by Mr. Libby, it is clear that, while thevolume ofthe material may be fairly discrete in light ofthe nature ofthe charges, a significant amount ofthat material is classified. It is anticipated that the classified material produced as discovery will be governed by a separate protective order, and the Government has proposed such a protective order to the Court with the consent of Mr. Libby’s counsel. In any event, neither Dow, Jones & Company, Inc. or The Associated Press, norany other member ofthepress will be entitled to access to any classified materials. The instant applications concern the restrictions to be placed on discovery materials that are not classified at this time or which will be declassified in the coming months as relevant classified discovery materials are reviewed for declassification. (Because it is far easier for the parties and the court to deal with declassified materials than to deal with classified information, we will be seeking a classification review wherever appropriate, though those reviews can be cumbersome.) Because the indictment in this case charges obstruction Case 1:05-cr-00394-RBW Document 11-2 Filed 11/18/2005 Page 1 of 3� offenses rather than substantive national security crimes, it is hoped that the case can be tried with a minimum ofissues concerning classified information needing to be resolved, and thus that the trial may be conducted in as public a manner as possible. 3. As it now stands, there are two categories of unclassified items that are anticipated to be produced to Mr. Libby that should be protected from public disclosure. First, discovery materials will include grandjury transcripts which implicate traditional grand jury secrecy concerns, including the need to protect the reputations ofwitnesses and the “innocent accused,” that is, persons who may have been investigated but not charged with a crime. Moreover, because the investigation is continuing, and because the investigation will involve proceedings before adifferent grandjurythan the grandjury whichreturned the indictment, traditional concerns that underlie Fed. R. Crim. 6(e) very much apply. 4. ln addition, some records to be produced implicate legitimate personal privacy concerns. For example, personal daily calendars, emails, and telephone call logs, including those of Mr. Libby and other members of the staff of the Office of the Vice President, include records of communications with family members, doctors, and personal contacts. Such records were produced to the grandjury in groups and it would be unduly cumbersome to redact such personal information. While we trust that neither Mr. Libby nor his counsel would use personal information such as home telephone numbers, residence and email address and the like for any reason other than in preparing his defense, public disclosure of such information is unjustified. 5. Ofcourse, some documents to be produced to Mr. Libby do not present any of the above concerns. The government respectfully suggests that it would be appropriate to mark documents falling into two categories, (a) grandjury transcripts, and(b) documents that may implicate personal privacy concerns, with the notation, “DISTRIBUTION OF THIS DOCUMENT IS LIMITED AS PROVIDED BY THE TERMS OF THE PROTECTIVE ORDER.” Under this arrangement, the defendant will be free to disclose (or not disclose) any documents not marked as being subject to the protective order, as he chooses. If Mr. Libby or his counsel later identify marked documents which they think should not be governed by the protective order, the parties may remove the restriction by agreement, or if no agreement can be reached, the defense counsel may seek relief from the Court. 6. I note that the Government is mindful that as much ofthe conduct of pre-trial litigation andthe trial itselfshould be conducted in open court with publicly-filed documents, and this is an additional reason why the classification and declassification review process is being undertaken, It is anticipated that reference may be made to some discovery materials 2 Case 1:05-cr-00394-RBW Document 11-2 Filed 11/18/2005 Page 2 of 3� in pretrial motions and that such materials will likely be offered as exhibits at trial. Thus, the government’s request for a protective order is not intended to inhibit the public conduct of the proceedings. Indeed, allowing the transmission of relevant documents to the defense pursuant to a protective order is the most efficient way to complete discovery in an expeditious manner and to proceed to a public trial with the least delay. Patrick J Fitzgerald Special Counsel Swprn to before me this i’;1’~day ofNovember 2005 ,1 , I I~/~/~ Notary Public j V / NOTM~YNPAUEB~LiACML. AWSA1RS~HQ~ONFGCTOOHUJ~1A My Com~S4i0E~x~pk~SiUfltl4~ 3 Case 1:05-cr-00394-RBW Document 11-2 Filed 11/18/2005 Page 3 of 3�

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
)
)
Misc. 05-458 (RBW)
v.
)
)
I. LEWIS LIBBY,
)
also known as “Scooter Libby”
)
GOVERNMENT’S CONSOLIDATED RESPONSE TO APPLICATIONS OF INTERVENERS DOW, JONES & CO. AND THE ASSOCIATED PRESS FOR DENIAL OF MOTION FOR PROTECTIVE ORDER
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIAL COUNSEL, respectfully submits the following consolidated response to the applications of interveners Dow, Jones & Company, Inc. and The Associated Press for denial of the government’s unopposed Motion for Protective Order.
INTRODUCTION
On October 28, 2005, the grand jury returned a five-count indictment charging I. Lewis “Scooter” Libby with obstruction of justice, perjury, and making false statements to federal investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001. The charges arose from an investigation concerning alleged leaks to reporters of classified information regarding the employment of a purported CIA official by one or more government officials. The grand jury investigation that led to the indictment in this case is continuing.
On October 31, 2005, the parties began discussing the timing and logistics of the production of discovery materials to the defendant. Counsel for the defendant were
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understandably anxious to receive these materials at the earliest possible opportunity. In particular, given the nature of the charges, counsel was anxious to obtain and review transcripts of the defendant’s grand jury testimony and memoranda prepared by special agents of the FBI related to their interviews of the defendant.
Due to the nature of the investigation, and to the high-level government positions held or formerly held by the defendant and many potential witnesses, much of the evidence obtained by the grand jury contains sensitive or classified material. The government currently is in the process of conducting a review of documents obtained during the course of the investigation and having these documents, together with grand jury transcripts, reviewed by the appropriate agencies for the purpose of identifying classified information and of assessing whether relevant documents may be declassified. As reported to the Court on November 3, 2005, this review is expected to take significant time. In an effort to expedite the delivery of discovery materials to the defendant and his counsel while maintaining the confidentiality of the materials and the integrity of the ongoing investigation during the review process, the government assisted defense counsel in obtaining clearance to review classified documents, and proposed to the Court a general protective order covering unclassified information and documents, and a protective order covering documents specifically identified as classified. The language of both orders was agreed to by counsel for the defendant.
Interveners Dow, Jones & Company, Inc. (“Dow Jones”) and The Associated Press
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have objected to the entry of the general Protective Order proposed by the government on November 10, 2005, which they argue is overbroad. Neither intervener disputes the fact that there may be legitimate grounds for protecting from public disclosure certain documents produced to the defendant in discovery, or the fact that the Court has the authority pursuant to Fed. R. Crim. P. 16 to enter a protective order to effect such protections. Instead, they argue that the Special Counsel should be required to apply for a more narrowly tailored order, and to state his reasons for seeking such an order. The defendant has responded to the objections of the interveners by urging that the court “take no action that might impair Mr. Libby’s ability to obtain expeditions and complete discovery of materials in the possession of the government. In light of the objections raised by interveners Dow Jones and the Associated Press, the government has proposed a revised Protective Order that covers only non-classified documents produced in discovery that fall into one or more categories: (a) grand jury transcripts; and (b) documents containing private, personal information of individuals, such as home telephone numbers, residence, or email addresses. As demonstrated below and in the attached affidavit of Special Counsel, there is good cause to protect such documents from public disclosure during the discovery process. The restrictions on public disclosure sought by the government herein are limited to the discovery process. Should the protected documents be filed with the Court or offered in evidence at trial, they will then be available to both the press and the public.
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ARGUMENT
“Rule 16(d)(1) authorizes the court to permit discovery but to issue ‘enforceable orders against unwarranted disclosure’ of the information.” Morgan v. D.O.J., 923 F.2d 195
(D.C. Cir. 1991)(quoting Alderman v. United States, 394 U.S. 165, 185 (1969)(discussing authority of court to prohibit unwarranted disclosure of national security information). In this case, materials to be provided to the defendant in discovery include documents that are appropriately restricted.
Transcripts of Grand Jury Testimony
This Court has recognized that there is no First Amendment right to access to grand jury proceedings. E.g., In re Motions of Dow Jones & Co., 142 F.3d 496, 499 (D.C. Cir. 1998). To the contrary, it is well settled that in the grand jury context “privacy and secrecy are the norm.” In re Sealed Case, 199 F.3d 2000 (D.C. Cir. 2000). See also Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, at 218 n. 9 (1979). Indeed, the Supreme Court consistently has recognized that “the proper functioning of our grand jury system depends upon the secrecy of the grand jury proceedings.” United States v. Procter & Gamble Co., 356 U.S. 677 (1958)(emphasis added). For this reason, “[u]nlike typical judicial proceedings, grand jury proceedings and related matters operate under a strong presumption of secrecy.” See In re Sealed Case, 151 F.3d 1085, 1069-71 (D.C. Cir. 1998).
The need to preserve the confidentiality of grand jury proceedings is of course most acute where, as here, the grand jury’s investigation is ongoing. See, e.g., Butterworth v.
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Smith, 494 U.S. 624, 632 (1990)(noting that some interests served by grand jury are less significant after grand jury has been discharged). Protecting grand jury transcripts from being disseminated beyond that which is necessary for the defendant to prepare his defense serves the interests that underlie Fed. R. Crim. P. 6(e), including, the need to encourage voluntary participation, and full and frank testimony, of witnesses, to protect witnesses from retribution and inducements, and to assure that “persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1070 (D.C. Cir. 1998)(quoting Douglas Oil Co. v. Petrol Stops Northwest, 441
U.S. 211, 219 (1979)). These concerns fully justify a protective order restricting the disclosure and use of grand jury transcripts provided to the defendant in discovery in this case.
Records of Government Officials Implicating Personal Privacy Concerns
Some of the records to be produced in discovery implicate legitimate personal privacy concerns of witnesses and others. For example, daily calendars, emails, and telephone call logs, and telephone records include records of communications with family members, doctors and personal contacts, as well as personal telephone numbers and residence and home email addresses. In particular, records of this type were obtained from a number of individuals in the Office of the Vice President, including the defendant. The records (particularly email, calendars and phone logs) were obtained in bulk with investigators reviewing the documents to separate the relevant from the irrelevant. The most efficient and expeditious manner of
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producing these documents is to do so in groups. In the government’s view, it is appropriate to allow disclosure of such information to the defendant and his counsel with the restriction that such information only be used in preparing the defense; however, personal, private information should be protected from public dissemination.
The protection of the personal privacy rights of witnesses is a legitimate basis upon which to restrict disclosure and use of discovery materials. See, e.g., In Re Sealed Case (Medical Records), 381 F.3d 1205, 1217 (D.C. Cir. 2004)(addressing a protective order in a civil case under the rule of civil procedure analogous to Rule 16(d)(1), Fed. R. Civ. P. 26(c). In that case, the court noted that, “[a]lthough [Rule 26(c)] contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the rule. In Re Sealed Case (Medical Records) 381 F.3d at 127 (citing Seattle Times Co. V. Rhinehart, 467 U.S. 20, 35 n. 21 (1984) and Pearson v. Miller, 211 F.3d 57, 72 (3d Cir. 2000)(holding that “[l]egitimate interests in privacy are among the proper subjects of Rule 26(c)’s protection”).
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____________________
CONCLUSION
For all of the foregoing reasons, the United States respectfully requests that this Court
enter the modified Protective Order and deny the applications of Dow, Jones & Co. and The
Associated Press as moot.
Respectfully submitted,
PATRICK J. FITZGERALD Special Counsel Office of the United States Attorney Northern District of Illinois 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-5300
Dated: November 17, 2005.
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