Case 1 :05-cr-00394-RBW Document 254-1 Filed 01/27/2007 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 05-3 94 (RBW)

)

I. LEWIS LIBBY, )

also known as “Scooter Libby,” )

Defendant. )

MOTION INLIMINE OF I. LEWIS LJI3BY

Mr. Libby respectfully submits this motion in limine to preclude the government from (1) eliciting testimony from An Fleischer concerning the reasons why he sought a grant of immunity before speaking with investigators and testifying before the grand jury, and (2) introducing through Mr. Fleischer a September 28, 2003 Washington Post article that supposedly spurred his decision to seek immunity.

I. BACKGROUND

Mr. Fleischer is expected to testify for the government beginning on Monday, January 29, 2007. The government has informed the Court that it intends to elicit testimony from Mr. Fleischer on direct examination about why he sought immunity. According to the government, on September 27 or 28, 2003, Mr. Fleischer:

[R}ead a newspaper article, which indicated that there was a criminal investigation into the possible unauthorized disclosure of a covert agent. And he read that, and he knew that he had conveyed information about that woman, Valerie Wilson, to reporters. That was information that had been previously conveyed to him by Mr. Libby.

And he realized, when there was an ongoing criminal investigation, I don’t want to put words in his mouth, but basically it was one of those

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moments when your heart goes in your throat, and you think, I could be in very big trouble here. And the following day he obtained legal counsel and began discussing with his attorney what kind of predicament he was in.

Jan. 25, 2007 P.M. Trial Tn. at 109.

The newspaper article in question, Bush Administration Is Focus of Inquiry, appeared in the Washington Post, and it announced the start of the Justice Department’s investigation into the leak to Robert Novak of Valerie Plame’s name and occupation. In addition to reporting that “a senior administration official said that two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson’s wife,” which disclosure was “meant purely and simply for revenge,” the article contained several misleading statements concerning the laws applicable to the disclosure of a covert CIA employee’s identity. Id at 108, Mike Allen & Dana Priest, Bush Administration Is Focus of Inquiry, WASH. POST, Sept. 28, 2003 (attached as Exhibit A).

II. ARGUMENT

A. The Defense Has Not — and Will Not — Put At Issue The Reasons Behind Mr. Fleischer’s Decision To Seek Immunity

On Thursday, the Court indicated that the government’s ability to offer the article and testimony from Mr. Fleischer might depend on the extent to which the defense attacked Mr. Fleischer’s credibility based on his immunity agreement. The defense has not opened the door, and does not plan to open the door, to testimony about the reasons that contributed to Mr. Fleischer’s decision to seek immunity. The defense merely plans to bring out the basic fact that Mr. Fleischer has an immunity agreement with the government. The defense is also likely argue to the jury that it should consider whether

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by encouraging them to focus instead on Mr. Fleischer’s state of mind concerning uncharged conduct, and to impute that state of mind to Mr. Libby.

The Court and the parties have discussed at some length whether evidence of the underlying investigation by the government would be admissible in this case. The government has stated that evidence concerning the underlying investigation “lack[s] relevance to the issues on trial.” Gov’t Motion in Limine at 6 (Oct. 30, 2006). Indeed, when asked by the Court what relevance evidence concerning Mr. Fleischer’s motivations for seeking immunity would have, the government failed to provide any direct answer. Because whatever (as yet unarticulated) probative value Mr. Fleischer’s testimony would have is outweighed by the risk of unfair prejudice and confusion of the issues, this evidence should be excluded under Rule 403 See Fed. R. Evid. 403 advisory committee’s note (defining “unfair prejudice” as “an undue tendency to suggest decision on an improper basis”).’

In addition, there is a fundamental disconnect between the evidence the government seeks to offer and Mr. Fleischer’s decision to seek immunity. The government seeks to offer evidence that Mr. Fleischer read a Washington Post article that made him think he “could be in very big trouble,” and the next day “obtained legal counsel and began discussing with his attorney what kind of a predicament he was in.”

1 The government’s argument that the September 28 article may be admissible in other circumstances is no reason to allow Mr. Fleischer to testify about the effect the article had on his state of mind at the risk of substantial prejudice to Mr. Libby. The Court therefore should reject the government’s argument that the prejudice to Mr. Libby as a result of Mr. Fleischer’s testimony will be negligible because the government intends to introduce (i) a similar October 12, 2003 article that Mr. Libby may have reviewed; and (ii) testimony that the F.B.I. was investigating the allegations in the September 28 article. See Jan. 25, 2005 P.M. Trial Tn. at 111-12.

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CONCLUSION

For the foregoing reasons, I. Lewis Libby respectfully requests that the Court grant this motion in urn/ne and preclude the government from eliciting testimony from An Fleischer regarding his reasons for seeking immunity as well as the September 28, 2003 article on which he purportedly based that decision.

Dated: January 26, 2007

Respectfully submitted,

Is’

Theodore V. Wells, Jr.

(DC Bar No. 468934)

James L. Brochin

(DCBarN0. 455456)

Paul, Weiss, Rifldnd, Wharton

& Garrison LLP

1285 Avenue of the Americas

New York, NY 100 19-6064

Tel. (212) 373-3089

Fax: (212) 373-2217

William H. Jeffness, Jr.

(DC Bar No. 041152)

Alex J. Bourelly

(DC Bar No. 441422)

Baker Botts LLP

1299 Pennsylvania Avenue, NW

Washington, DC 20004

Tel: (202) 639-7751

Fax: (202) 585-1087

Is’

John D. Cline

(D.C. Bar No. 403824)

Jones Day

555 California Street, 26th Floor

San Francisco, CA 94104

Tel: (415) 626-3939

Fax: (415) 875-5700