Posted on 11/20/2005 12:34:26 AM PST by Lancey Howard
Sorry about the (lack of) formatting. I don't know what I'm doing when it comes to copying documents like this one. But I did want to get this into the Free Republic records and archives. Next post will be the "government response".
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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I read these things through (believe it or not) and they seem to amount to Fitzgerald trying to deny Libby (and "interveners") certain discovery materials. If you get a minute to look these over and care to comment, I would be interested to know if there's anything unusual here.
Regards,
LH
I'd agree that ALL of the material from Libby be kept confidential to protect his privacy. Everything else should be open, especially the FBI interviews and reports which need to be evaluated for veracity. We also need to see a complete accounting of Fitz's time and expenditures day by day to see why he has been taking so long to do so little.
"Because the indictment in this case charges obstruction offenses rather than substantive national security crimes..."
Rather than substantive...crimes. You got that right.
A lot of it is classified and can't be turned over to the public.
It damn well better be made public when the trial or the Republicans and the President should come unglued. Anything concerning Plame or that jacka@@ Wilson should not be classified. This according to his own words. Anything else that Fitzzzzzzzzzz has is irrelevant. And the trial better be televised or all hell will break loose.
I haven't posted here in a long time, so excuse any posting errors. My concern is this section:
“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.”
I have read through ALL of the documentation on Fitz's website. This is the FIRST time the word 'purported' has been used in re: to Plame's employment at the CIA.
In all other cases, the language states an 'alleged unathorized disclosure' of a CIA employee's identity.
Any thoughts?
You might want to take a look at the first two links here:
http://www.usdoj.gov/usao/iln/osc/legal_proceedings.html
The verbage posted is from the Govern. Response, dated 11/18/05, in that same link you gave me.
Prior to 11/18, I can find no other time in any of the correspondence where Fitz uses the word 'purported' in re: to Plame working for the CIA. Wondering why now? Just seems like backpedaling to me. Guess I just don't trust him. I'm still trying to figure out this statement from the presser:
FITZGERALD: And all I'll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.
Can't figure out how 793 is relevant. Also notice that he didn't say.......'because of her 'purported' affiliation with the CIA.'. Even then her affiation with the CIA was a given.
It's not. Fitz was creating a smoke screen. 18 USC 793 is the espionage act, which covers the unauthorized sharing of US "plans" with its enemies. The "out the agent" act, 50 USC 421 et seq, was promulgated because the espionage act does not cover outing the agent.
What Fitz was pointing out was that the lifting of HR files from the CIA, and sharing of them with enemy, may amount to a violation of the Espionage Act. His answer really dodged the question put to him.
bttt
Just the intervenors, and just for now.
Libby is not objecting to the proposed protective orders.
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.
Can't figure out how 793 is relevant. Also notice that he didn't say.......'because of her 'purported' affiliation with the CIA.'. Even then her affiation with the CIA was a given.
Well, that's what Fitzgerald has been instructed to find out. It's just taking longer than most of us would like. There were some who insisted that this thing was over after Libby was indicted. But Libby was indicted for obstructing justice, among other things, and Fitzgerald clearly indicated at his press conference that the investigation was *not* over. From the quote you posted above, it seems as if Fitzgerald is saying that because her status was classified (regardless of a more specific definition of her status), the investigation continues. He cites the Espionage Act. Does anyone around here have the text of the Espionage Act? That might clear things up a bit. You make some interesting points and pose some very relevant questions.
Thank you ALL for helping to try and clarify 793 for me.
Like I said, I don’t trust him, that’s why I am wondering if the following isn’t a cya move or backpedaling or if I’m reading it wrong? (sorry if someone already answered):
Old verbage:
“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"
vs.
New verbage:
“The charges arose from an investigation concerning alleged leaks to reporters of classified information regarding the employment OF A PURPORTED CIA OFFICAL by one or more government officials.”
There's not much difference between "alleged" and "purported," is there?
I found the text of the Espionage Act here:
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=793
No, there isn't much difference in the meaning of the words, I'm clear on that. I have a tendency to examine very closely what people say, that's all. IMO, the second example is Fitz saying.... that there is an 'alleged' outing.... but that Plame is ONLY 'purported' to be a CIA official. He doesn't know if she is a CIA official?
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