CIA Leak Scandal Criminal Investigation - Court Proceedings

Court Proceedings

On November 3, 2005, I. Lewis "Scooter" Libby entered a not guilty plea in front of U.S. District Judge Reggie Walton, a former prosecutor who has spent two decades as a judge in the nation's capital.

Due to the huge amount of classified material that has been requested by Libby's defense, it has been speculated that Libby is using Graymail as a defense tactic. He has also added the graymail expert John D. Cline to his defense team.

In December 2005, Patrick Fitzgerald responded to a motion by Dow Jones & Company, Inc., to unseal all or part of the redacted portion of a United States Court of Appeals for the District of Columbia opinion issued on February 15, 2005. The opinion pertained to oral arguments held on December 8, 2004. The opinion of the court was released on February 3, 2006, to the public. It reads:

As to the leaks’ harmfulness, although the record omits specifics about Plame’s work, it appears to confirm, as alleged in the public record and reported in the press, that she worked for the CIA in some unusual capacity relating to counterproliferation. Addressing deficiencies of proof regarding the Intelligence Identities Protection Act, the special counsel refers to Plame as “a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years” — representations I trust the special counsel would not make without support. (8/27/04 Aff. at 28 n.15.)

On January 31, 2006, letters exchanged between Libby's lawyers and Fitzgerald's office concerning matters of discovery were released to the public. Reportedly, Fitgerald states:

"A formal assessment has not been done of the damage caused by the disclosure of Valerie Wilson’s status as a CIA employee, and thus we possess no such document. In any event, we would not view an assessment of the damage caused by the disclosure as relevant to the issue of whether or not Mr. Libby intentionally lied when he made the statements and gave the grand jury testimony which the grand jury alleged was false."

On March 17, 2006, Patrick Fitzgerald filed the government's response to a motion by Scooter Libby's defense team to dismiss the indictments.

On April 5, 2006, Patrick Fitzgerald filed the government's response to a motion by Scooter Libby's defense team on issues of discovery. On April 12, 2006, Fitzgerald issued a correction to some of the information in the government's motion. In the memo, he writes:

Nor would such documents of the CIA, NSC and the State Department place in context the importance of the conversations in which defendant participated. Defendant’s participation in a critical conversation with Judith Miller on July 8 (discussed further below) occurred only after the Vice President advised defendant that the President specifically had authorized defendant to disclose certain information in the NIE. Defendant testified that the circumstances of his conversation with reporter Miller — getting approval from the President through the Vice President to discuss material that would be classified but for that approval — were unique in his recollection. Defendant further testified that on July 12, 2003, he was specifically directed by the Vice President to speak to the press in place of Cathie Martin (then the communications person for the Vice President) regarding the NIE and Wilson. Defendant was instructed to provide what was for him an extremely rare “on the record” statement, and to provide “background” and “deep background” statements, and to provide information contained in a document defendant understood to be the cable authored by Mr. Wilson. During the conversations that followed on July 12, defendant discussed Ms. Wilson’s employment with both Matthew Cooper (for the first time) and Judith Miller (for the third time). Even if someone else in some other agency thought that the controversy about Mr. Wilson and/or his wife was a trifle, that person’s state of mind would be irrelevant to the importance and focus defendant placed on the matter and the importance he attached to the surrounding conversations he was directed to engage in by the Vice President.

On May 12, 2006, Fitzgerald filed the Government's response to the Court's inquiry regarding news articles the Government intends to offer as evidence at the trial:

The June 12, 2003, Washington Post article by Mr. Pincus (to whom both Mr. Wilson and the defendant spoke prior to publication of the article) is relevant because Mr. Pincus’ questions to the OVP sparked discussion within the OVP, including conversations between the defendant and the Vice President regarding how Mr. Pincus’ questions should be answered. It was during a conversation concerning Mr. Pincus’ inquiries that the Vice President advised the defendant that Mr. Wilson’s wife worked at the CIA. (To be clear, the government does not contend that the defendant disclosed the employment of Ms. Plame to Mr. Pincus, and Mr. Pincus’s article contains no reference to her or her employment.) The article by Mr. Pincus thus explains the context in which the defendant discussed Mr. Wilson’s wife’s employment with the Vice President. The article also served to increase media attention concerning the then-unnamed ambassador’s trip and further motivated the defendant to counter Mr. Wilson’s assertions, making it more likely that the defendant’s disclosures to the press concerning Mr. Wilson’s wife were not casual disclosures that he had forgotten by the time he was asked about them by the Federal Bureau of Investigation and before the grand jury.

Transcripts of Libby's grand jury appearances are also released.

On May 16, 2006, a transcript of court proceedings before Judge Reggie B. Walton was released. Libby's lawyers sought communications between Matthew Cooper and Massimo Calabresi, authors of an article published by Time magazine on July 17, 2003, and titled, "A War on Wilson?" Libby's lawyers contend that Massimo called Joe Wilson after Cooper learned from Karl Rove that Wilson's wife worked at the CIA. Libby's lawyers also told the judge they have an email Cooper sent to his editor describing a July 12, 2003, conversation with Libby in which there is no mention of Plame or her CIA status. An email was sent to Cooper's editor on July 16, 2003, "four days after his conversation with Mr. Libby and 5 days after his conversation with Mr. Rove, about the article they are planning to write in which they are going to mention the wife. And the e-mail says — talks about him having an administration source for the information about Ms. Wilson." Libby's lawyers, thus, sought communications between Massimo and Cooper to determine if Cooper conveyed to Massimo that Libby was a source as well for the information on Wilson's wife:

AND I SUBMIT TO YOUR HONOR THERE IS — AS YOU CAN SEE, THE CREDIBILITY OF MR. COOPER WITH RESPECT TO HIS DESCRIPTION THAT MR. LIBBY CONFIRMED MR. PLAME'S EMPLOYMENT BY THE C.I.A. IS GOING TO BE VERY MUCH AT ISSUE IN THIS CASE. AND THAT IS WHAT CASES ARE ALL ABOUT. AND WE SHOULD BE ENTITLED TO ANYTHING THAT MR. COOPER HAS SAID OR THAT OTHERS HAVE SAID OR DONE, SUCH AS MR. MASSIMO TALKING TO MR. WILSON ON THE BASIS OF WHAT COOPER SAID. AND THAT KIND OF INFORMATION IS DIRECTLY RELEVANT TO THE CROSS-EXAMINATION, AND WE SUBMIT THAT IT SHOULD BE ENFORCED. AND CERTAINLY WE HAVE ESTABLISHED SPECIFICITY WITH RESPECT TO THAT. THE OTHER THING I WOULD SAY IS THIS IS THE FIRST I HAVE HEARD THAT TIME HAS A DOCUMENT THAT REFERS TO MS. PLAME. NOW, PERHAPS, THAT'S MR. COOPER'S COMMUNICATION WITH MR. MASSIMO, OR PERHAPS IT IS MR. MASSIMO'S NOTES WITH MR. WILSON. I DON'T KNOW, BUT CERTAINLY IF THERE IS A DOCUMENT THAT DOES REFER TO MS. PLAME PRIOR TO JULY 14, WE SUBMIT THAT THAT'S RELEVANT AND SHOULD BE PRODUCED AS WELL. THAT'S ALL I HAVE ON TIME AND COOPER, YOUR HONOR.

On May 26, 2006, Judge Walton ruled on the motion:

However, upon reviewing the documents presented to it, the Court discerns a slight alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper. This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions. Thus, unlike Miller, whose documents appear internally consistent and thus will only be admissible if she testifies inconsistently with these documents, Cooper’s documents will undoubtedly be admissible. Because of the inevitability that Cooper will be a government witness at trial, this Court can fathom no reason to delay the production of these documents to the defendant, as they will undoubtedly be admissible for impeachment.

For the reasons discussed above, this Court will grant reporter Judith Miller’s motion to quash, and grant in part and deny in part the remaining motions. Therefore, at the appropriate times as designated in this opinion, those documents subject to production must be produced to the defendant so that they can be used as impeachment or contradiction evidence during the trial. In addition, based on the facts of this case, this Court declines to recognize a First Amendment reporters’ privilege. And, the Court concludes that any common law reporters’ privilege that may exist has been overcome by the defendant.