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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIAUNITED STATES OF AMERICA))CR. NO 05-394 (RBW)v.))I. LEWIS LIBBY,)also known as “Scooter Libby”)
GOVERNMENT’S RESPONSE TO DEFENDANT’STHIRD MOTION TO COMPEL DISCOVERY
The UNITED STATES OF AMERICA, by PATRICK J. FITZGERALD, SPECIALCOUNSEL, respectfully submits the following response to the “Third Motion of I. Lewis Libby toCompel Discovery Under Rule 16 and
 Brady
.”
INTRODUCTION
On October 28, 2005, a federal grand jury returned a five-count indictment chargingdefendant I. Lewis “Scooter” Libby with obstruction of justice, perjury, and making false statementsto federal investigators, in violation of 18 U.S.C. §§ 1503, 1623 and 1001, in connection with aninvestigation concerning leaks to reporters of classified information regarding the employment of Valerie Plame Wilson.To date, the government has provided defendant with approximately 12,300 pages of classified and unclassified discovery, including the entire set of documents produced to the Officeof Special Counsel by the Office of the Vice President, a large quantity of classified and unclassifieddocuments from several other government agencies, and certain grand jury testimony and documents provided by reporters. The government currently is in the process of obtaining from the Office of the Vice President and producing to defendant an estimated 1,400 pages of additional handwrittennotes prepared during the period May 6, 2003 through March 24, 2004, pursuant to the Court’s
Case 1:05-cr-00394-RBW Document 80 Filed 04/05/2006 Page 1 of 39
 
2ruling from the bench on February 24, 2006. The government also is currently in the process of  providing defendant with additional discovery concerning his morning intelligence briefings duringthe periods of June 7-14, 2003, October 12-16, 2003, November 24-28, 2003, March 3-7, 2003, andMarch 22-26, 2003, pursuant to the Court’s Order of March 10, 2006.
ARGUMENT
Defendant’s third discovery motion seeks expansive additional discovery, principally on theground that the documents sought are “material to the preparation of the defense,” as that phrase isused in Fed. R. Evid. 16(a)(1)(E)(i). Defendant asserts that the documents he seeks, which amongother things include nearly every document generated by four large executive branch entities relatingto Ambassador Joseph Wilson’s trip to Niger, are discoverable under Rule 16 because they willassist in the preparation of witness examinations, provide context for the government’s allegations,and demonstrate his lack of a motive to commit the perjury and false statement offenses charged inthe indictment.Defendant’s motion is flawed in two fundamental respects. First, it rests on an unsupportablereading of Rule 16 which, if adopted by the Court, would to a large extent substitute open filediscovery for Rule 16, a proposition that has been repeatedly rejected by the courts. Second, it is premised on relevance arguments which overlook the fact that defendant is charged with perjury, nota conspiracy to commit various other crimes. When viewed against the correct legal standards for discovery and in the context of the crimes charged in the indictment, defendant’s motion for miscellaneous additional discovery should be denied for the reasons set forth more fully below.
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3
I.
 
Applicable Legal Standards
The Supreme Court long ago established, and has continued to hold, that discovery incriminal cases is not unlimited and does not sweep in everything known to the government anduncovered during the investigation.
United States v. Agurs
, 427 U.S. 97, 109 (1975) (noconstitutional duty to “allow complete discovery of . . . files as a matter of routine practice”);
United States v. Bagley
, 473 U.S. 667, 675 (1985) (“the prosecutor is not required to deliver his entire fileto defense counsel”);
Weatherford v. Bursey
, 429 U.S. 545, 559 (1997);
United States v. Ruiz 
, 536U. S. 622, 630 (2002);
 see also
 
United States v. Jordan
, 316 F.3d 1215, 1251 (11th Cir. 2003) (noright to unsupervised search through the government’s files). Nor does Federal Rule of CriminalProcedure 16 authorize general access to the government’s investigation file; rather, Rule 16(a)(1)(E)is limited to discovery of records “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E).Rule 16 requires disclosure only of evidence that “enables the defendant significantly to alter thequantum of proof in his favor.” 3/10/06 Mem. Op. at 8 (citing
United States v. Marshall 
, 132 F.3d63, 68 (D.C. Cir. 1998)). An “abstract logical relationship to the issues in the case” is insufficient.3/10/06 Mem. Op. at 8;
 Jordan
, 316 F.3d at 1251 (citing
United States v. Buckley
, 586 F.2d 498, 506(5th Cir. 1978)). And where classified information is sought, the defendant must also show that theclassified information “is at least helpful to the defense.” 3/10/06 Mem. Op. at 9 (citing
United States v. Yunis
, 867 F.2d 617, 623 (D.C. Cir. 1989)).In
United States v. Armstrong 
, 517 U.S. 456 (1996), the Supreme Court provided specificinstruction as to what records are “material to preparing the defense” – that term means “thedefendant’s response to the Government’s case in chief.”
 Id.
at 462. Thus, the parameters of Rule16 discovery are set by the indictment.
United States v. George
, 786 F. Supp. 11, 13 (D.D.C. 1991)
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03 / 14 / 2011<span class="translation_missing">en_US, this_document_made_it_onto_the</span>Rising List!
YourLeaders.org

I'm outraged. But what can we do?

reply07 / 04 / 2007
socialista

I can not begin to imagine what this woman and her family have gone through. Ms. Plame and her husband had twin infants when all of this initially exploded. She must fear for her life every day. This makes me so furious and nauseous that i could puke.

reply07 / 02 / 2007
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