Posted on 11/20/2005 12:34:26 AM PST by Lancey Howard
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�
Don't let anyone talk you out of it--This is a significant change from his original statements. You've made a good catch.
No, Fitz is wrong about his own charter.
" Because the indictment in this case charges obstruction offenses rather than substantive national security crimes, ..."
Fitzgerald did a good job of accusing Scooter Libby of substantive national security crimes in his press conference.
FITZGERALD: And, given that national security was at stake, it was especially important that we find out accurate facts.
FITZGERALD: I will say this.
I won't touch the specific damage assessment of what specific damage was caused by her compromise -- I won't touch that with a 10-foot pole.
I'll let the CIA speak to that, if they wish or not.
FITZGERALD: If you're going to have a grand jury investigation into the improper disclosure of national security information and you're going to have someone in the position Mr. Libby is lying to the FBI .....
that, to me, defines a serious breach of the public trust.
FITZGERALD: It's important that a CIA officer's identity be protected,
that it be protected not just for the officer, but for the nation's security.
FITZGERALD: This is a very serious matter and compromising national security information is a very serious matter.
But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important.
What document is the Old verbiage in? Thanks.
BUMP for excellence in posting!
That is a great job of laying out Fitzgreald's hypocrisy and self-contradictions - - all in his own words. I hope Libby's lawyer is paying careful attention to Free Republic. It's malfeasance if he isn't.
the old verbage is in correspondence dated December 30 and February 6.
Do you have a cite, please?
Nevermind, I found it. Thanks.
Sorry, I was away......
No problem--I realized there was a second page on the file--man, I hate reading stuff in pdf format..
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