Case Document 32-2 - Filed 01 31 2006 Page 10 of 16 Of ce of Special Counsel Patrick J Chicago Of ce Dirksen Federal Budding Washington Of ce Bond Building Special Counsel 2 9 South Denrbarn Street Fifth Floor 00 New YorkAvenue Ninth Floor Chicago Ennis 60604 Washington DC 20530 312 353-5300 202 5i4-H37 Please address all correspondence to the Washington O ic Via Telefax Regular Mail January 23 2006 William Jeffress Esquire Theodore V Wells Esquire Joseph A Tate Esquire BAKER BOTTS PAUL WEISS LLP DECHERT LLP The Warner 1285 Avenue of the Americas Cira Centre 1299 Avenue NW New York NY 10019-6064 2929 Arch Street Washington DC 20004-2400 Philadelphia PA 19103 Re United States v I Lewis Libby Dear Counsel This letter is in response to your letter of January 5 2006 We incorporate the prior responses in our letters of December 3 2005 and January 9 2006 This follows our telephone conference of January 18 2006 As a preliminary matter your letter indicates a belief that it is very common in the District of Columbia to engage in open le discovery but my understanding is to the contrary To my understanding open le discovery is not common in that district nor in the Department of ustice more broadly That is particularly the case where the matter involves extensive classi ed and national security materials Moreover it is not the ordinary practice for federal prosecutors to provide discovery in a of justice prosecution as to all matters that were considered but not charged in the overarching grand jury investigation particularly one that is ongoing As you are aware your client has not been charged with a substantive violation of Title 18 United States Code Section 793 Accordingly your client is not entitled to discovery of sensitive national security materials pertinent only to a prosecution of a substantive violation of that statute In any event the fact that we have not elected to provide you with everything the defense has requested should not obscure the fact that the defense is being given far more discovery than is required by the language of Rule 16 of the Federal Rules of Criminal Procedure To cite but one example we are making available to you all material obtained from the Of ce of Vice President in essence open le discovery regarding the of ce where your client was employed We have endeavored to draw a line that expedites resolution of this matter while at the same time safeguarding other governmental interests and the ongoing investigation In making discovery Case Document 32-2 Filed 01 31 2006 Page 11 of 16 Attorneys Jeffress Wells Tate January 23 2006 Page 2 determinations we have endeavored to provide no preferential treatment of Mr Libby solely on account of his former of cial position I note that our January 18 2006 telephone conference was productive in achieving a clearer understanding of the areas where we disagree which will lend itself to presentation to the court for resolution We also agreed during the telephone conference that if we decided to produce any items to you despite our belief that we were not required to do so that you would not view such production as a waiver of our position that such discovery was not required or argue that such a production was a concession that we were obligated to produce any additional documents that may be in the possession of other government agencies In your requests you greatly expand the sweep of subsection 'which governs documents and obj ects by making requests for information rather than documents and obj ects and by de ning documents material to preparing the defense to include memos recordings and transcripts in a manner which would sweep in grand jury minutes and reports of interview most commonly reports of interview in the form of FBI form 302's That is atly inconsistent with the narrower category of documents and obj ects set forth in subsection and is contrary to both subsection 16 a 2 which says that reports and government memoranda prepared by an attorney or agent are not discoverable and to subsection 16 a 3 which limits grand jury transcript discovery to the defendant s grand jury testimony To de ne documents to include grand jury transcripts and debrie ng reports would contravene the Jencks Act and the enumerated provisions of Rule 16 Thus in reviewing our response you should understand that unless speci ed otherwise below we are not producing such grand jury transcripts or FBI 302's or other reports as they are not required to be produced pursuant to Rule 16 We respond in greater detail to your enumerated requests as follows 1 You demand access to all documents referencing Mr Wilson s 2002 trip to Iraq The relevance of Mr Wilson s 2002 trip is the fact that it occurred and that it became a subject of discussion in spring 2003 What took place during that trip is not relevant to the issue of whether Mr Libby lied about his spring 2003 conversations with various reporters and government of cials about Mr Wilson wife s employment at the Central Intelligence Agency Thus a request for every document which in any way relates to Mr Wilson s trip and any communications Mr Wilson had with anybody at any time about the trip is over broad and any attempt to comply with such a request would signi cantly delay not expedite resolution of this matter Nonetheless all documents in our possession re ecting conversations involving defendant Libby about Wilson's trip or meetings Mr Libby attended during which Mr Wilson s trip was discussed have been produced or will be produced prior to February 3 Moreover when you review the materials in our possession which we have produced or will be producing to you speci cally including the copies of all documents obtained from the Of ce of Vice President and the materials from our set of Case Document 32-2 Filed 01 31 2006 Page 12 of 16 Attorneys Jeffress Wells Tate January 23 2006 Page 3 documents obtained from the Central Intelligence Agency you will note that they include substantial materials which concern or re ect Mr Wilson s trip 2 We do not have any responsive materials other than material that would be produced pursuant to the Jencks Act if the Government were to call Mr Wilson to testify at trial which we do not expect to do You are obviously aware that Mr Wilson has made public speeches written an Dr Ed in the New York Times published a book and has been interviewed by media 3 As set forth in our prior correspondence we will not produce every document related in any way to Ms Wilson s employment nor is Mr Libby entitled to every document that might re ect on the damage to national security from disclosure of her employment However as we discussed during our telephone conference call on January 18 we intend to address the matter of the use relevance and admissibility of information concerning Ms Wilson s employment at the CIA in the context of the Classi ed Information Procedures Act 4 While we do not believe we are required to do so we will advise you of certain information responsive to your request by letter on or before February 3 5 As we previously advised you we have no formal damage assessment in our possession but as we discussed during our telephone conference call on January 18 we intend to address the matter of the relevance and admissibility of Ms Wilson s employment at the CIA in the context of CIPA 6 7 and 8 Aside from any Jencks Act material which will not be produced as discovery all responsive documents have been produced to you or will be produced to you on or before February 3 As we noted during our conference call we do not agree that you are entitled to all such materials or that the scope of your request is proper but you are receiving all responsive documents in our possession We also advised you that when gathering materials during the investigation we did not focus our searches on a topic as broad as that set forth in the request in 7 e 9 This request in effect seeks discovery concerning any other subjects of the ongoing investigation We have not produced and do not intend to produce all documents regarding contacts betWeen go vernment of cials other than Mr Libby and reporters prior to July 14 2003 but have produced or will produce before February 3 all documents re ecting contact between Mr Libby and reporters responsive to this request Lest there be any doubt we do have some documents responsive to your request which we are electing not to produce because we do not agree that we are obligated to provide them 10 and l 1 Aside from anyJencks Act material which will not be produced as discovery all responsive documents have been produced to you or will be produced to you on or before February 3 Case Document 32-2 Filed 01 31 2006 Page 13 of 16 Attorneys effress Wells Tate January 23 2006 Page 4 In your section entitled Information Relating to the Government s Investigation of the Media you assert that the govemment takes the position that the defense is not entitled to receive in discovery the contemporaneous notes made by the reporters who spoke to Libby but do not note that you have been provided with all notes in the govermnent s possession that were made by reporters when speaking to Mr Libby As discussed above the Government has declined to provide notes of conversations between reporters and other government of cials You elsewhere stated that we declined to provide any information about reporters when in fact we have produced documents obtained from media entities as you elsewhere acknowledge 12 - l 6 While we do not intend to provide discovery in this regard and while not required to do so in order to expedite litigation of this matter we advised you during the January 18 conference call that we were not aware of any reporters who knew prior to July 14 2003 that Valerie Plame Ambassador Wilson s wife worked at the CLA other than Bob Woodward Judith Miller Bob Novak Walter Pincus and Matthew Cooper l There are published accounts of when Ms Miller and Mr Cooper rst learned about Mr Wilson s wife and from whom Mr Woodward has publicly described his conversation with Mr Libby on June 27 2003 as well as the general timing mid June of his conversation with another unnamed government of cial with whom he then spoke about Mr Wilson s wife Mr Woodward has also described his conversations in 2003 and later with Mr Pincus on the subject Mr Pincus has published his account of when he rst learned information about Wilson s wife from a source he does not name Mr Novak has published his account of when he learned about Wilson s wife some time after July 6 without naming his sources in the account We also advise you that we understand that reporter John Dickerson of Time magazine discussed the trip by Mr Wilson with government of cials at some time on July 1 or after subsequent to Mr Cooper learning about Mr Wilson's wife Any conversations involving Mr Dickerson likely took place in A -iea and occurred after July 11 We note that we understand from our January 18 telephone conference that the requests numbered 13 and 14 were intended to be requests limited to the time frame prior to July 14 2003 We otherwise are not producing documents responsive to your request concerning other of cials who were in contact with other reporters as outlined above In addition you seek miscellaneous items for discovery in an effort to prepare motions While we do not agree that there is a separate entitlement to discovery in order to facilitate motions which may or may not be well grounded we advise you of the following in response to your enumerated requests This statement is not meant to imply that each and every reporter named knew her name prior to uly 14 2003 Case Document 32-2 Filed 01 31 2006 Page 14 of 16 Attorneys effress Wells Tate January 23 2006 Page 5 17 We are reviewing the CIA referral document and will either produce the same to you or advise you otherwise shortly We do not intend to produce all documents relating to that referral document as that could potentially implicate all documents in this investigation 18 We are seeking to obtain a copy of the order empaneling the grand jury public which we did not have in our possession and will either produce the same to you or advise you otherwise shortly We will be providing to you prior to February 3 copies of subpoenas and pertinent correspondence relating to reporters referenced in the Indictment and or whom we expect to call at trial I We are speci cally withholding subpoenas and correspondence which were addressed to reporters whose testimony was directed towards government of cials other than Mr Libby The nests for As erted Material We recognize that your requests for discovery seek the categories of items requested both pursuant to Rule 16 as well as pursuant to Brady v Maryland 373 US 83 1963 and ght v United States 405 US 150 1972 We do not agree however that each of your requests is appropriate under the governing standards nor as discussed in prior correspondence do we agree with your implicit view that we are aligned with all government agencies for purposes of discovery A We are aware of our Brady and Gigh o obligations regarding witnesses and will comply with those obligations B and C We do not agree that if there were any documents indicating that Ms Wilson s employment was not classi ed during the relevant times that any such documents would constitute Brady material in a case where Mr Libby is not charged with a violation of statutes prohibiting the disclosure of classi ed information 3 C We do not agree that if there were any documents indicating that Ms Wilson did not act in an undercover capacity or did not act covertly in the ve years prior to July 2003 which we neither con rm nor deny that any such documents would constitute Brady material in a case where 2 We are not providing correspondence such as transmittal letters legal briefs filed appellate briefs led and various correspondence concerning scheduling ling sealing redacting and unsealing of briefs and other court documents regarding litigation 3 I note that Ms Wilson's employment status was classi ed but has since been declassi ed so that we may now con rm such status In any event we are not aWare of any documents in our possession stating that Ms Wilson s af liation with the CIA was not classi ed at the relevant times Case Document 32-2 Filed 01 31 2006 Page 15 of 16 Attorneys Jeffress Wells Tate January 23 2006 Page 6 Mr Libbyis not charged with a violation of statutes prohibiting the disclosure of classi ed information D and B We do not agree that any documents indicating that any reporter heard or suSpected prior to July 14 2003 that Ms Wilson worked at the CIA constitutes Brady material but in any event incorporate our earlier response on this issue F We do not agree that any time witnesses disagree on facts that you are entitled to all documents so indicating in advance We are aware of our Brady and Gigh o obligations regarding witnesses and will comply with those obligations G We do not agree that all documents re ecting favorably on Mr Libby's character or reputation for truthfulness or re ecting his propensity to comply with laws regulations and nondisclosure agreements or of assuring that others complied with those regulations constituteBrady material nor that such documents could be easily de ned as prior instances of non-criminal conduct are not considered exculpatory H Your request for Gigh'o impeachment material is premature and over bro ad You will receive such material for Government witnesses not for potentia Government witnesses however that term is de ned Moreover the scope of records you seek is far beyond the scope of what is required Byway of illustrative but not exhaustive example you seek all documents relating to any juvenile arrest of any potential government witness in a case where there will be no witnesses where any such arrest would be remotely recent or relevant to the trial Other reguests There have been no search warrants executed and no communications intercepted pursuant to Title at the direction of the prosecution team during the course of this investigation At this time we do not intend to offer any evidence of other crimes pursuant to Rule 404 b As we discussed during our telephone conversation Mr Libby testi ed in the grand jury that he had contact with reporters in which he disclosed the content of the National Intelligence Estimate to such reporters in the course of his interaction with reporters in June and July 2003 and caused at least one other government of cial to discuss the NIE with the media in July 2003 We also note that it is our understanding that Mr Libby testi ed that he was authorized to disclose information about the N113 to the press by his superiors We expect that such conduct will be the subject of proof at trial in that we intend to introduce Libby s grand jury transcript in evidence and Mr Libby has testi ed that the purpose of his July 8 meeting with Ms Miller was to transmit information concernin the NIE Our anticipated basis for offering such evidence is that such facts are inextricably intertwined with the narrative of the events of spring 2003 as Libby s testimony itself makes plain At this time we do not intend to offer the evidence pursuant to Rule 404 b Case Document 32-2 Filed 01 31 2006 Page 16 of 16 Attorneys effress Wells Tate January 23 2006 Page 7 We are not obligated at this time to disclose impeachment material of Mr Libby should he testify in his defense We are aware of no evidence pertinent to the charges against defendant Libby which has been destroyed In an abundance of caution we advise you that we have learned that not all email of the Of ce ot Vice President and the Executive Of ce of President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system Should you have any questions or comments regarding any of the foregoing or should you wish to discuss this matter generally please do not hesitate to call me at the number listed above Very truly yours 4414 1 5 PATRICK J ITZG RALD Special Counsel This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu