IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

)

) Case No. 07-

)

) Appeal from the

) United States District

) Court for the District

) of Columbia

)

also known as “Scooter Libby,” ) Defendant-Appellant.

D. Ct. No. CR 05-394 (RBW)

APPELLANT’S APPLICATION FOR RELEASE

PENDING APPEAL

Theodore V. Wells, Jr.

James L. Brochin

PAUL., WEISS, RIFICIND, WHARTON

& (JARRTS0N LLP

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3089

Date: June 19, 2007

Lawrence S. Robbins

Roy T. Englert, Jr.

Mark T. Stancil

Ronnms, RUSSELL, ENGLERT, ORSECK & UNTERErNER LLP

1801 K. Street, NW

Suite 411

Washington, DC 20006-1322

(202) 775-4500

I. LEWIS LIBBY!

)

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) II

Dyer v. MacDougall, 201 R2d 265 (2d Or. 1952) 19

Ednwndv. 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. Bz(ffalo, 358 F.3d 519 (8th Or. 2004) 18

United States v. carter, 973 F.2d 1509 (10th Or. 1992) 19

United States v. Fernandez, 887 F.2d 465 (4th Or. 1980) 10

United States v. Jenkins, 928 F.2d 1175 (D.C Cir. 1991) 19

United States v. Johnson, 802 F.2d 1459 (D.C 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 73 (D.D.C. 2007) 13, 17

United States v. Morlang, 531 F.2d 183 (4th Or. 1975) 18

United States v. Perholtz, 836 F.2d 554 (D.C Or. 1987) 2

United States v. Peter,nan, 841 F.2d 1474 (10th Or, 1988) 18, 19

TABLE OF AUTHORITIES -.~-- Cont’d.

Page(s)

United States v. Sala,neh, 152 F. 3d 88 (2d Or. 1998) 14

United States v. Webster, 734 F.2d 1191(7th Or, 1984) 18

United States v. Zafiro, 945 F.2d 881 (7th Or. 1991) 19

Weiss v. United States, 510 U.S. 163 (1994) 6

Statutes and Regulations:

18U.S.C.App.3~6(c) 12

18 U.S.C. App. 3 § 6(c)(1)(A) 15

18 U.S.C. App. 3 § 6(c)(l)(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. Evin 401 13

H.R. Rep. No. 103-224(1994) 10

TABLE OF AUTHORITIES — Cont’d.

Page(s)

United States Attorneys’ Manual 3-18.200 7

United States Attorneys’ Manual 9-13.400 7

I. Appellant I. Lewis “Scooter” Libby, by counsel, respectftilly 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 ofjustice (18 U.S.C. § 1503); two counts of perjury (18 U.SC. § 1623); and one count of making a false statement to government investigators (18 U.S.C § 1001). The jury acquitted Libby on an additional false statement count, On June 14, 2007, Judge Walton imposed concuntnt 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 sulTender 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.

ilL 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. Perholtz, 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 [DOJ]” (~ 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 make 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 elToneously excluded crucial evidence bearing on Libby’s memory defense simply because the defendant exercised his right not to t~tify.

• Whether United States v. Johnson, 802 F.2d 1459 (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.

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 fi’om 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

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 Edmnond [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

o “the Special Counsel’s authority is limited” (id. at 40) — despite

the written grant of “plenary” authority;

• “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 Mornson, however, he saw no “need” to “confront th[e] analysis” of Edmnond. 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,

whether that analysis will prevail on appeal. Edmond nowhere intinmted 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 ‘tneither Congress nor the President thought” the officer in question was a principal (Weiss v. United State,, 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 ‘~plenaiy” powers of the Attorney

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 Monnison 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 fi~oni that obligation. As a result, he was free to depart from such established policies as the rules regarding subpoenas to media (USAM 9~l3.400; 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 notif~’ the Attorney General of “significant events” in the case, including decisions that would implicate ~cnational 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 cenftal to the Court’s disposition. S~ 487 U.S. at 671-672.’

Although the defense and arnici 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.

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 oL 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 strzpped 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

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 afier trial,

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 inforniation important to national security.” This exercise of unlawfully delegated power is precisely what happens when a federal prosecutor is given “plenaiy” 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).

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 tes4fy 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 en’ors (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

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 testirrmny resulted from innocent misrecollection

- the defense sought to show that Libby received detailed, highly memorable information, including infonration received on some of the same or nearby dates, that competed in his ntmory 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-

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. Evm. 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 atten13

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 w~k 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, 152 F.3d 88, 143 (2d Cir. 1998). And there was more than ample foundation, including through Libby’s own grand July 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. 90-10 1; 2/13/07 am. Tr. 57-89.~

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

⁴Barring 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 niost 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-4 12, 413.

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 hind 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

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 filly):

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 inforniation.” 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 I (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 assess16

ment 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. Supp. 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

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 Uhited States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), however, the district court declined to perniit 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 fl’om calling Mitchell as a witness (2/13/07 a.m.Tr. 17-18).

To say the least, this is a “close” question. Johnson held that the governnient en’ed 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.⁵Here it was

~ See, e.g., United States v. Bi~ffa/o, 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. Mot-lang, 531 F.2d 1 83, 1 89 (4th Cir. 1975) (making same distinction); United States v. Webster, 734 F,2d 1191, 1192 (7th Cir. 1984); United States v.

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 forniality 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 july was flee to infer that Mitchell’s testimony was false and that the opposite was true. See Dyer v. MacDou gall, 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

Petennan, 841 F.2d 1474, 1479 (10th Cr. 1988).

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, ThE KIND, WHARTON

& GARRIsON LLP

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3089

Lav⁴ence S. Ro13”bins 7

Roy T. Englert, Jr.

Mark T. Stancil

RonruNs, RussELL, ENOLERT,

ORSECK & UNTEREn~n LLP

1801 K Street, NW, Suite 411

Washington, DC 20006-1322

(202) 775-4500

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, N.W.

Ninth Floor

Washington, D.C. 20530

202-514-1187

z~ T~6i

R0fT. EnglerI, Jr.~

June 14 07 Tr

WASHINGTON, D. C.

JUNE 14, 2007

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE REGGIE B~ WALTON

11 FOR THE GOVERNMENT:

APPEARANCES: (CONTINUED.) FOR THE GOVERNMENT:

PATRICK FITZGERALD, SPECIAL COUNSEL

U. S. DEPARTMENT OF JUSTICE

219 SOUTH DEARBORN STREET

CHICAGO, ILLINOIS 60604

312—353—5300

DEBRA R. BONAMICI

OFFICE OF SPECIAL COUNSEL

219 SOUTH DEARBORN STREET

ROOM 500

CHICAGO₁ILLINOIS 60604

312—353—3741

PETER ZEIDENBERG, AUSA

U. S. DEPARTMENT OF JUSTICE

1400 NEW YORK AVE., N. W.

ROOM 12-405.

WASHINGTON, D. C. 20005

202-514-1412

PHYLLIS MERANA

6423 U. S. COURTHOUSE

333 CONSTITUTION AVE.,

WASHINGTON, D. C. 20001

202-354-3243

KATHLEEN M. KEDIAN

U. S. DEPARTMENT OF JUSTICE

CRIMINAL DIVISION

COUNTERESPIONAGE SECTION

Page 1

1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED		STATES,	:
		GOVERNMENT,	:
	VS.		:
I.	LEWIS	LIBBY, DEFENDANT,	: E

CR. NO. 05-394

COURT REPORTER:

N. W.

June 14 07 Tr

4 THE BOND BUILDING

1400 NEW YORK AyE, N. W.

5 ROOM 9100

WASHINGTON, 0. C. 20005

6 202-353—4473

7 FOR THE DEFENDANT: WILLIAM JEFFRESS, ESQ.

BAKER BOlTS, LLP

8 THE WARNER

1299 PENNSYLVANIA AVE., N.W.

9 WASHINGTON, 0. C. 20004

202-639-7751

THE000RE 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. Y. 10019-6064

212-373—3089

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, 0, C. 2006

1 P-R-O-C-C-E-O-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 MR. FITZGERALD: GOOD MORNING, YOUR HONOR. PAT

8 FITZGERALD AND TEAM FOR THE UNITED STATES.

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 LIBBY.

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 U

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

B 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 MR. 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

S 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 MR. 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 TROUBLING. HOWEVER,

8 THOSE TYPES OF THINGS CANNOT AND WILL NOT HAVE ANY IMPACT ON

9 THE DECISIONS I HAVE TO RENDER.

10 1 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 IDENTIFIED.

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

S LEGAL ISSUES THAT MAY HAVE EXISTED IN THOSE CASES.

6 50 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-HILLY 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 ARE.

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

1 ILLUSTRATE TWO THINGS THAT ARE GERMANE TO THE QUESTION

2 BEFORE THE COURT THIS MORNING. 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. RDBBINS: 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.

I 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

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 1 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 D. 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 DR 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. RDBBINS: 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 DICHOTOMY.

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 EDMOND. 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

B 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 TI

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 50 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 TI

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 WIN.

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 CASE.

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

Page 12

JUne 14 07 TI

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 DOWN.

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 U

1 TO COMPLY WITH D,O,J. POLICIES AND REGULATIONS. AND THAT

2 WAS A CRUCIAL LEG OF THIS COURT’S OPINION.

3 I BELIEVE THAT DECISION TO BE INCORRECT, AND I Page 13

June 14 07 TI

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 SAID. 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 YORK. WHEN YOU ASSUMED

1 THIS NEW JOB, YOUR AUTHORITY IS NOT GOING TO BE DEFINED OR

2 LIMITED BY 28 C.F.R. 600.

3 SO YOU HAVE GOT TO ASK YOURSELF, “WELL, WHAT

4 EXACTLY ARE THE LIMITS IN 2B 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 COURT. I BROUGHT 28 C.F.R. 600. I WOULD Page 14

June 14 07 TI

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 COPY.

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 600.6 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 U

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

S REPORTS THAT AN ORDINARY SPECIAL COUNSEL -- A REGULAR

6 SPECIAL COUNSEL -- UNDER 28 C.F.R. HAS TO PROVIDE IS ON

7 NATIONAL SECURITY CONCERNS.

8 50, YOUR HONOR, WHERE DOES THAT LEAVE US AT THE

9 END OF THE DAY? IT LEAVES US IN THE FOLLOWING PLACE.

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 TI

13 SIGNIFICANT PROSECUTORIAL AND INVESTIGATIVE DECISIONS.

14 HE WAS GIVEN THE FREEDOM -- UNPRECEDENTEDLY GIVEN

15 THAT FREEDOM. 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.O.J. 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

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June 14 07 TI

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 TI

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

S 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 TODO-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 POSITION.

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June 14 07 TI

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 COMPROMISED. 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

B 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

June 14 07 TI

4 MINUTES FOR ME TO ASK YOU QUESTIONS.

5 MR. ROBBINS: OKAY. 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

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June 14 07 TI

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 POWER. 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?

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June 14 07 TI

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 THOSE.”

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 AUTHORITY.

S 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

B ULTIMATELY PREVAIL IN THE 0. 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

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June 14 07 TI

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 U

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:

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June 14 07 TI

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 IS THAT CONGRESS WANTED THREE PEOPLE

4 THAT IT HAD LOOKED IN THE EYE FOR THE JOB THEY HELD -- NOT

S 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

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June 14 07 TI

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(C)(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. RDBBINS: I YIELD TO THEM, BUT I RATHER DOUBT

24 IT.

25 MR. JEFFRESS: THE SITUATION AS I RECALL, YOUR

I 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 TI

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 U

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.

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June 14 07 TI

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.

I 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

S 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. PLAME’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 TI

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

I 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

June 14 07 TI

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 U

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

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June 14 07 TI

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 U

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.

S 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 50 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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June 14 07 TI

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 O.O.J.

S 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

II 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

June 14 07 TI

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 U

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

S 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

June 14 07 TI

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 OFFICE