Full opinion text
MEMORANDUM OPINION WALTON, District Judge. Throughout the trial in this matter, which commenced on January 16, 2007, the parties have raised a number of evidentia-ry disputes. During the course of the trial, the Court resolved those disputes from the bench. Nonetheless, the Court concludes that it is appropriate to memorialize some of those rulings in a written opinion. Accordingly, this Memorandum Opinion sets forth the Court’s ruling on the following motions: (1) the Government’s Motion in Limine to Preclude Testimony of Andrea Mitchell; (2) the Brief of I. Lewis Libby on Admissibility of State of Mind Evidence Without Defendant’s Testimony; and (3) the defendant’s Memorandum of Law in Support of Introducing Additional Evidence to Impeach Government Witness Tim Russert (“Def.’s Rus-sert Mot”)- Because this Court has, on several occasions, set forth the facts underlying the charges lodged against the defendant, see, e.g., United States v. Libby, 432 F.Supp.2d 81, 82-83 (D.D.C.2006); United States v. Libby, 432 F.Supp.2d 26, 28-29 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 27, 28-29 (D.D.C.2006); United States v. Libby, 429 F.Supp.2d 1, 4 (D.D.C.2006), it need not repeat them here, but will turn immediately to the evi-dentiary disputes. I. Government’s Motion In Limine to Preclude Testimony of Andrea Mitchell The defendant sought to elicit testimony from Andrea Mitchell, a reporter with NBC News, regarding her knowledge of Valerie Píame Wilson’s employment with the Central Intelligence Agency (“CIA”) for the purpose of undermining NBC News Washington Bureau Chief Tim Rus-sert’s direct examination trial testimony that it would not have been possible for Russert to have broached the topic of Ms. Wilson with the defendant because he did not know anything about her when the conversation occurred. Mitchell Mot. at 2; Trial Transcript (“Tr.”) 2/7/07 p.m. at 12, 34-35, 38. Russert further testified that Mitchell, as one of the members of the NBC news team, would have disclosed important news information to him. Tr. 2/8/07 a.m. at 42. To attack Russert’s credibility, the defendant sought to introduce evidence that on October 3, 2003, Mitchell made a statement to CNBC’s Allen Murray indicating that there was a rumor among Washington reporters regarding Ms. Wilson’s CIA employment before Russert spoke to the defendant. However, shortly thereafter, Mitchell recanted this exchange, repeatedly asserting that she did not know Ms. Wilson worked at the CIA prior to the publication of the Robert Novak article, from which Russert testified he first learned about Ms. Wilson’s employment, and that she had “misunderstood Allen’s question and screwed it up.” Mitchell Mot. at 4. And, counsel for Mitchell proffered to the Court that if called as a witness, Mitchell would testify that she had no knowledge of Ms. Wilson’s CIA employment prior to the publication of the Novak article. Tr. 2/8/07 p.m. at 101-02; Mitchell Mot. at 4. Nonetheless, the defendant opined that by demonstrating that Mitchell may have had some knowledge of Ms. Wilson’s affiliation with the CIA, it is reasonably inferred that she would have shared this information with Russert before he had his conversation with the defendant, and thus, the jury should not credit Russert’s testimony that he did not know of Ms. Wilson’s affiliation with the CIA until the Novak article was published. Moreover, the defense asserted that it should be able to introduce this evidence to challenge Mitchell’s credibility. The defendant advanced four legal theories as support for the introduction of this evidence. First, the defendant contended that he should be entitled to establish a “factual record that the possibility of Mitchell’s hearing such a rumor cannot be ruled out.” Def.’s Mitchell Mot. at 1. Second, that if Mitchell denied hearing such a rumor, the defense could use her statement to Murray to impeach her credibility. Id. Third, that under Chambers v. Mississippi 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the defense could use the October 2003 statement to impeach Russert’s credibility because he testified that had Mitchell heard such a rumor she would have reported that information to him and therefore it was possible for him to bring the topic to the defendant’s attention. Id. at 2. And finally, that the October 2003 statement was admissible as substantive evidence under Federal Rule of Evidence 807, the residual hearsay exception. Id. at 2. The Court will first address the latter two arguments. A. Mitchell’s October 2003 Statement Could Not be Introduced as Substantive Evidence. The defendant argued that he should be permitted to utilize Mitchell’s October 2003 exchange to impeach Russert’s credibility. Def.’s Mitchell Mot. at 17. As this Court noted during the trial, the October 2003 exchange would only impeach Russert’s credibility if it could be admitted as substantive evidence for the truth of the matter asserted — i.e., that Mitchell had actually heard rumors regarding Ms. Wilson’s employment status with the CIA. If admitted for its truth, the defendant could ask the jury to infer, consistent with Russert’s testimony, that Mitchell would have reported this information to him as her “boss,” and that Russert would have had a factual basis for asking the defendant about it during their telephone conversation on July 10 or 11, 2003. However, there was simply no basis for the October 2003 interview being introduced as substantive evidence under either the Supreme Court’s pronouncement in Chambers or Federal Rule of Evidence 807, as suggested by the defendant. In Chambers, the Supreme Court concluded that Chambers had been denied a fair trial: (1) when he was not afforded the opportunity on re-direct examination to question his own witness regarding the witness’s confession that he had committed the offense for which Chambers was on trial and that had been introduced during the witness’s direct examination but repudiated by him during the State’s cross-examination, and (2) when the trial court prevented Chambers from impeaching this witness’s testimony denying guilt with prior confessions made to third parties. See Chambers, 410 U.S. at 298, 93 S.Ct. 1038. Concluding that the trial court’s evidentiary rulings deprived Chambers of a fair trial, Justice Powell noted that the “right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Id. at 294, 93 S.Ct. 1038. Further, the Court noted that “[t]he rights to confront and call witnesses in one’s own behalf have long been recognized as essential to due process.” Id. While recognizing that the prohibition on hearsay was well established in American law, the Court held that where the testimony was “critical to Chambers’ defense,” and “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id. at 302, 93 S.Ct. 1038. The Court reached this conclusion reasoning that the hearsay in question “bore persuasive assurances of trustworthiness and ... was well within the basic rationale of the exception for declarations against interest.” Id. Specifically, the Court noted that the confessions (1) were made spontaneously to friends, (2) were corroborated by evidence already in the case, and (3) were clearly against McDonald’s interest. See id. at 300, 93 S.Ct. 1038. Therefore, the confessions were deemed reliable and were “well within the basic rationale of the exception for declarations against interest.” Id. at 302, 93 S.Ct. 1038. Thus, the Court concluded that Chambers should have been permitted to not only use the confessions to undermine McDonald’s credibility, see id. at 295-98, 93 S.Ct. 1038, but also as substantive evidence for their truth, see id. at 302, 93 S.Ct. 1038. The Supreme Court’s holding in Chambers does not provide a legal basis for the admission of an otherwise inadmissible hearsay statement. See id. at 302, 93 S.Ct. 1038. First, the statement in Chambers was a hearsay statement that was against the witness’s penal interest. Federal Rule of Evidence 804(b)(3) now formally recognizes statements tending to expose the declarant to criminal liability as an exception to the hearsay rule so long as the declarant is unavailable within the meaning of the rule. In the case at bar, Mitchell’s October 2003 statement did not fall within any of the recognized hearsay exceptions, including, as discussed below, Rule 807. Second, the Supreme Court in Chambers concluded that the introduction of the confession was proper because it was critical to the defendant’s case and was reliable. See Chambers, 410 U.S. at 302, 93 S.Ct. 1038. Such was not the case here. The defense offered no evidence from which the Court could attach a level of trustworthiness to Mitchell’s October 2003 exchange, which would have permitted the exchange to be admitted as substantive evidence. Moreover, the introduction of Mitchell’s October 2003 exchange was not critical to the defendant’s ease. As already noted, there were a number of inferences and leaps in the logic the jury would have to make to conclude that the October 2003 statement had any bearing on the defendant’s innocence. Thus, unlike the third-party confession in Chambers, Mitchell’s statement did not go to the heart of Libby’s defense. Rather, even if there was a basis for admitting the statement for its truth, as noted above, the jury would still have to draw a number of inferences leading to transgression into the realm of speculation before being able to reach the conclusion that Russert raised Ms. Wilson’s CIA employment with the defendant during their telephone conversation. Additionally, there was no corroborative evidence to support the reliability of Mitchell’s October 2003 statement. Indeed, Mitchell and NBC repeatedly repudiated the exchange as false and misleading. And this Court’s own assessment of the statement led it to the conclusion that while it certainly can be read consistent with the defendant’s interpretation, ambiguity nonetheless exists, especially in light of Mitchell’s recantation. Finally, it is important to recognize that the Supreme Court in Chambers limited its holding to the unique facts of that case. Indeed, Justice Powell noted, “[i]n reaching this judgment, we establish no new principles of constitutional law.... Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.” Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038; see Grochulski v. Henderson, 637 F.2d 50, 55-56 (2d Cir.1980) (distinguishing Chambers and noting that it was a narrow holding limited to the unique facts where the witness had confessed to the charged crime and there was corroborating evidence indicating the trustworthiness of the hearsay confessions). Accordingly, contrary to the defendant’s position, Chambers simply does not provide a vehicle for the introduction of the Mitchell statement. The defense also contended that Mitchell’s statement should be admitted for its truth under Federal Rule of Evidence 807, the residual exception to the ban on hearsay. Def. Mitchell Mot. at 18. Rule 807 provides that a statement not specifically covered by Rule 803 or 804 but having equivalent guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. Fed.R.Evid. 807. The second requirement — that the evidence be more probative than any other available evidence— goes beyond the evidence’s mere reliability and trustworthiness. Rather, it must be “very important and very reliable” such that it is the best evidence to prove the defense’s point and there is no other evidence available that would have the same influence. See, e.g., United States v. Washington, 106 F.3d 983, 1001 (D.C.Cir.1997) (quoting U.S. v. Kim, 595 F.2d 755, 766 (D.C.Cir.1979)) (construing the residual hearsay exception previously codified as Rules 804(24) and 804(b)(5)). The District of Columbia Circuit has declined to construe admission under Rule 807 liberally. Rather, the Circuit Court has held that the residual exception is to be narrowly construed, see Washington, 106 F.3d at 1001, and its application “is appropriate only in exceptional circumstances,” Kim, 595 F.2d at 765-66; see also Barry v. Trs. of Int’l Ass’n Full-Time Salaried Officers & Employees of Outside Local Unions & District Counsel’s (Iron Workers) Pension Plan, 467 F.Supp.2d 91, 102-03 (D.D.C.2006). It is through this narrow lens that the Court considered the defendant’s Rule 807 argument. The defense argued that Mitchell’s October 2003 statement satisfied Rule 807’s three criteria. Def.’s Mitchell Mot. at 19-22. This Court could not agree. The October 2003 exchange was not sufficiently trustworthy or reliable to render it admissible under Rule 807. Indeed, Mitchell represented to the Court through counsel and stated publicly that she was mistaken when she had spoken these words on the Capitol Report. Mitchell Mot. at 4; Tr. 2/8/07 p.m. at 101-03. And as previously noted, this Court’s own review of the statement showed that the way it is worded makes it somewhat ambiguous as to when Mitchell was saying she first heard about Ms. Wilson’s affiliation with the CIA. The Court simply could not find any indication that this statement had the requisite level of trustworthiness to qualify as an exception to the hearsay rule under this Circuit’s construction of the residual hearsay exception. Because the District of Columbia Circuit commands this Court to strictly construe Rule 807 narrowly, and because Mitchell’s October 2003 statement lacks sufficient indicia of reliability, admitting this statement under the residual hearsay exception would have perverted the limitation on the admissibility of hearsay statements. For the reasons set forth above and expressed by this Court during the trial, there is simply no basis for admitting Andrea Mitchell’s October 2003 statement as substantive evidence. B. Mitchell’s October 2003 Statement is Not Admissible as Impeachment Evidence under Federal Rule of Evidence 607 Federal Rule of Evidence 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Fed.R.Evid. 607. This rule was amended in 1987 to codify a growing trend in the circuit courts abandoning the traditional “voucher” doctrine whereby a party could not impeach its own witness because a party assured its own witness’s veracity. 1 Kenneth S. Broun, McCormick On Evidence § 38 (6th ed.2006). The amendment reflected the drafters’ notion that because a party often does not have a “free choice in selecting [a witness],” preventing a party from impeaching his own witness “leaves the party at the mercy of the witness and the adversary.” Fed.R.Evid. 607, advisory committee’s notes. But, if a party attempts to undermine a witness’s credibility with a prior inconsistent hearsay statement, such a statement is admissible only for impeachment purposes and may not be utilized as substantive evidence. See, e.g., United States v. Carter, 973 F.2d 1509, 1512 (10th Cir.1992); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984); United States v. Miller, 664 F.2d 94, 97 (5th Cir.1981) (noting that the prosecution may not utilize prior inconsistent statements for the primary purpose of exposing the jury to otherwise inadmissible evidence). Despite Rule 607’s broad language, courts, including the District of Columbia Circuit, have limited a party’s ability to impeach its own witness. In United States v. Johnson, 802 F.2d 1459 (D.C.Cir.1986) the District of Columbia Circuit concluded that “[i]mpeachment evidence is to be used solely for the purpose of impeachment, and it may not be ‘employed as a mere subterfuge to get before the jury evidence not otherwise admissible,’ ” id. at 1466 (quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975)). In that case, Johnson was charged and convicted of possessing cocaine with an intent to distribute. See id. at 1461. During the government’s rebuttal case, the prosecution called David Halmon as its witness. See id. at 1463. Halmon had previously given the police a signed statement indicating he had sold drugs for the defendant in the past. See id. During a hearing outside of the jury’s presence, Halmon refused to implicate Johnson. See id. Thus, the prosecution knew that Halmon’s testimony would contradict his earlier statement to the police. Over Johnson’s objection, the trial court permitted the government to question Halmon in the jury’s presence. See id. When he testified consistent with his previous testimony, the government impeached its own witness with his prior inconsistent statement made to the police. See id. After his conviction, Johnson appealed, contending that Halmon’s statement to the police was “improperly bootstrapped into the record as a prior inconsistent statement.” Id. The District of Columbia Circuit concluded that the prosecution inappropriately called Halmon to the stand not for the testimony he was expected to give, “but for the sole purpose of bringing about the admission of a post-arrest statement that, as the prosecution well knew or should have known, was not independently admissible.” Id. at 1466. The Circuit Court condemned the government having called Halmon as a witness knowing that he would offer testimony favorable to the defendant as a means to undermine its own witness’s testimony with otherwise inadmissible hearsay. See id. Compare Webster, 734 F.2d at 1192 (concluding that the prosecution “abuses” Rule 607 when it calls a witness that it “knew would not give useful evidence” against the defendant for the purpose of putting before the jury hearsay evidence incriminating the defendant), with United States v. Eisen, 974 F.2d 246, 262-63 (2d Cir.1992) (permitting the government to impeach its own witness where the witness was called to corroborate portions of the government’s case and not solely for impeachment purposes), and Walker v. Lockhart, 763 F.2d 942, 952 (8th Cir.1985) (concluding that the trial court improperly prevented defendant from calling witness because he sought to do so for a permissible purpose and not just for impeachment, and the impeachment would have occurred only during redirect examination after the government’s cross-examination was completed). In assessing whether a party is simply calling a witness solely to impeach the witness, many courts attempt to discern the primary purpose for the witness’s testimony. United States v. Gilbert, 57 F.3d 709, 711-12 (9th Cir.1995); United States v. Patterson, 23 F.3d 1239 (7th Cir.1994). Cf. Johnson, 802 F.2d at 1466 (“[impeachment evidence is to be used solely for the purpose of impeachment ... ”) (emphasis added). But see Carter, 973 F.2d at 1513 (noting that courts hesitate to rule that a party called a witness for an improper purpose because “[evaluating the purpose of counsel’s decision to call a witness is akin to pushing a string — neither is easy”). In United States v. Ince, 21 F.3d 576 (4th Cir.1994), however, the Seventh Circuit concluded that the Court’s inquiry into the prosecution’s purpose “does not ask the judge, either at trial or upon appellate review, to crawl inside the prosecution’s head to divine his or her true motivation.” Id. at 580 (emphasis in original); see United States v. Buffalo, 358 F.3d 519, 523 (8th Cir.2004) (noting that in determining “whether testimony of a prior inconsistent statement is a ‘mere subterfuge’ to get before the jury otherwise inadmissible hearsay, the proper inquiry is whether, as an objective matter and irrespective of the [calling party’s] motive, the probative value of a statement for impeaching the credibility of a witness is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury” (internal quotation marks and citation omitted) (alteration in original)). Rather than evaluating whether the prosecutor’s motivation was primarily to circumvent the hearsay rules, the Seventh Circuit held that courts should engage in a 403 analysis, weighing the “testimony’s impeachment value against its tendency to prejudice the defendant unfairly or to confuse the jury.” Ince, 21 F.3d at 580. The court went on to note that if the testimony does not “affirmatively damage” the case of the party calling the witness, the impeachment evidence has “no probative value for impeachment purposes.” Id. at 581-82 (emphasis in original). Admittedly, the vast majority of cases addressing this issue involve attempts by the government to circumvent the hearsay rules. And there are few cases that address whether a different standard should be applied when the defendant is attempting to impeach his own witness. Undoubtedly, the risk of unfair prejudice and of the jury convicting the defendant on hearsay evidence is not as pronounced when it is the defense seeking to impeach its own witness with a prior inconsistent statement. In fact, the Fourth and Eighth Circuits have recognized that the risk that a jury will, despite a limiting instruction, consider evidence for its truth as opposed to merely for impeachment, is multiplied when the impeachment testimony contains an admission of the defendant’s guilt. See Ince, 21 F.3d at 581; Buffalo, 358 F.3d at 525. “Thus, a trial judge should rarely, if ever, permit the [gjovernment to ‘impeach’ its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime.” Buffalo, 358 F.3d at 525. And because most courts emphasize the potential prejudicial impact to the defendant when excluding the government’s attempts to impeach its own witness, at least one Circuit Court — the Eighth Circuit in Buffalo — has held that under Rule 403, the balance weighs in favor of permitting the defense to impeachment its own witness. See id. at 525-26. The Buffalo Court noted that when the defendant moves to introduce prior inconsistent statements for the purpose of impeachment, the above noted concerns are inapplicable because “the prejudicial impact of the statement does not endanger the defendant’s liberty by risking conviction based on out-of-court statements that are not subject to confrontation by way of cross-examination.” Id. at 525. While this Court strived to afford the defendant every opportunity to present his defense, and to challenge the credibility of the government’s witnesses, the law simply did not support the introduction of Mitchell’s October 2003 statement when the sole purpose of calling her was for impeachment. Johnson points out that a witness cannot be called for the primary purpose of impeaching that witness. See Johnson, 802 F.2d at 1466. Mitchell’s testimony only added value to the defense if the jury could consider her October 2003 statement for its truth and then inferred that Mitchell’s knowledge of the rumor about Ms. Wilson’s employment could be imputed to Russert. If so, then as the defendant testified at the grand jury and as he told the FBI agents, the jury could infer that it would have been possible for Russert to disclose Ms. Wilson’s identity and a rumor that she was employed by the CIA to the defendant during the disputed phone conversation between the two. Because Mitchell’s prior inconsistent statement could not be used by the jury for that purpose, the distinct possibility that the jury would have inappropriately used the October 2003 statement for its truth, the Court ruled that Mitchell could not be called as a witness by the defendant pursuant to the teaching in Johnson. And employing the balancing test of Rule 403 led to the same conclusion because the impeachment of Mitchell with her prior statement alone had no probative value, whereas, the risk of the jury misusing the statement was significant, and such misuse would have been unduly prejudicial to the government. For all the reasons set forth during the trial in this matter and expanded upon in this opinion, the Court granted the Government’s Motion in limine to Preclude Testimony of Andrea Mitchell. II. The Admissibility of State of Mind Evidence Without Defendant’s Testimony During the course of the trial, this Court was called upon to determine the extent to which the defendant could introduce evidence concerning his “memory defense” without the defendant actually testifying. Specifically, the defendant sought to introduce (1) the “Statement Admitting Relevant Facts” (“Statement”) agreed to by the parties during the proceedings conducted pursuant to the Classified Information Procedures Act, 18 U.S.C. app. III (2000) (“CIPA”), (2) the testimony of several of the defendant’s colleagues in the Office of the Vice President (“OVP”) about the matters that consumed his time and attention during several periods in 2003 at issue in this case, and (3) materials from his morning intelligence briefings that the defendant received from several CIA briefers during the relevant time periods. As set forth during the trial, much of the evidence the defendant sought to introduce was not relevant without his testimony and was therefore excluded. The Court will discuss each category of evidence in turn. A. The Statement Admitting Relevant Facts The first item of evidence upon which the Court had to rule concerned the Statement agreed to by the parties as a substitution for various classified information the defendant wished to introduce. The Statement itself is a one-page document containing five paragraphs that describe the nature of the defendant’s job as a senior official in the Office of the Vice President (“OVP”) and identifies his duties with respect to a number of issue areas relating to national security, noting three specific matters about which the defendant was “concerned” during periods surrounding the key events in this case. The defendant argued that the document should be admitted in its entirety, whether or not he chose to testify. See generally Def.’s State of Mind Brief. Pointing to the title of the document — a “Statement Admitting Relevant Facts” — the defendant asserted that it constitutes an “unequivocal and unconditional admission” of fact by the government that independently establishes the truth of the statements it sets forth. Def.’s State of Mind Reply at 3-5. With respect to relevance, the defendant argued that the first two paragraphs were relevant because they describe the nature and areas- of the defendant’s responsibilities, facts that would bear on the jury’s determination of the defendant’s ability to remember certain facts during the periods at issue. Def.’s State of Mind Reply at 3-4. The last three paragraphs, which specify three issues that concerned the defendant at times pertinent to this case, were relevant in his view because they establish by their terms that the defendant’s focus was trained, inter alia, upon these three particular issues. Def.’s State of Mind Reply at 3. This Court did not agree. After thorough consideration of the parties’ arguments, the Court concluded that the Statement was inadmissible in the absence of the defendant’s testimony. During the course of the CIPA hearings, this Court concluded that certain pieces of evidence were relevant to assist in establishing the defendant’s “memory defense” based upon the expectation that the defendant’s own testimony would establish that his attention was consumed by various matters other than the key events outlined in the indictment. See, e.g., Libby I, 467 F.Supp.2d at 3-4 (noting that because “the defense has affirmatively stated that the defendant intends to testify on his own behalf[, i]t will therefore be the defendant’s testimony about what he was focused on and that his workday was consumed by” specific information the defendant sought to offer as evidence that lays the foundation for much of the classified evidence the defense sought to admit). Without the defendant’s testimony, however, much of the classified evidence that this Court concluded was relevant no longer satisfied this evidentiary predicate for admissibility. Thus, substitutions for evidence that this Court concluded would be relevant if the defendant testified became irrelevant once the defendant exercised his right not to testify. It is of no moment that one of those substitutions was a statement admitting relevant facts as permitted under CIPA. In no way can the Statement reasonably be construed as an unqualified admission of fact that was intended to bind the government (or this Court which approved the substitution) even if the defendant chose not to testify. To be sure, neither the defense’s representations nor the Court’s assumption that the defendant would testify provide a basis for deeming the defendant to have waived his Fifth Amendment privilege. Under the Supreme Court’s decision in Brooks v. Tennessee, 406 U.S. 605, 610, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), the defendant retains a constitutional right to reserve decision on whether to take the stand until the end of his trial. But as the Court observed when issuing its § 6(a) rulings, the CIPA requires courts to issue rulings on the basis of assumptions about how the trial will unfold, assumptions informed primarily through the representations of the parties. Rather than abdicate its responsibility under the CIPA to make such predictions in the face of uncertainty, however, the Court made provisional determinations of relevance, use, and admissibility — erring on the side of admitting the classified evidence when in doubt — in light of the expressed expectations of the parties. More important to the present issue, the CIPA also forced the parties to prepare for trial in reliance on similar shared assumptions and within the constraints set by the Court’s rulings based on those same assumptions. In this case, as counsel for the government represented — and the Court credits its representations as officers of the Court — the compromise that resulted in the Statement was predicated upon the assumption that the defendant would testify, which would both provide a foundation for the information contained in the Statement and provide the government an opportunity to cross-examine the defendant about the extent to which the issues described did in fact consume his time and attention. Permitting the defendant to put the Statement before the jury without testifying himself, both would have relieved him of the burden of laying a sufficient foundation for the Statement’s listing of matters that purportedly concerned him and would have insulated him from cross-examination on this point. The Court simply could not accept that this accurately reflected the parties’ understanding (and surely not the government’s) when they agreed to the use and admissibility of the Statement. Accordingly, just as the Court refused to cast its § 6(a) rulings in stone because of the unforeseeable path the trial might take, see Libby I, 467 F.Supp.2d at 9-10, it could not require the government to stand by a substitution of evidence that it agreed to with the understanding — and in light of this Court’s rulings, based on the same understanding — that the defendant himself would testify. Consequently, the Court concluded from the bench that it would not construe the Statement as an unqualified admission of fact that binds the government now that the defendant has elected not to testify. The conclusion that the Statement did not constitute an unqualified admission of fact yielded several important consequences for its admissibility. With respect to the final three paragraphs, because the Statement could not be treated as independently establishing that the defendant was concerned with the matters described, the relevance of those paragraphs vanished. Without a showing through his own testimony, or other evidence, that these three subjects were in. fact of concern to the defendant during the pertinent time periods, the matters described had no relevance to this case, and thus were inadmissible under Rule 401. Moreover, whatever evidentiary value the description of these matters still possessed once the defendant exercised his right not to testify,. it was far outweighed by the potential prejudice and confusion their presentation would occasion. Admitting these paragraphs in the absence of the defendant’s own testimony would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant’s state of mind with respect to these issues. Neither Rule 403 nor the basic principles of fairness underlying the Federal Rules of Evidence, see Fed.R.Evid. 102, would permit the defendant to put the final three paragraphs of the Statement before the jury in such manner. Therefore, this Court concluded that the final three paragraphs could not be admitted into evidence. Similarly, the Court concluded that the first two paragraphs also were inadmissible. Because the Statement was not an unconditional admission of fact by the government, it was not admissible to establish the defendant’s work responsibilities and job duties. Moreover, what little probative value the first two paragraphs might have, is outweighed by their cumulative character, as the defense had already presented evidence, through the testimony of John Hannah, that described the responsibilities and duties described in the first two paragraphs of the Statement. For these reasons, the Court concluded that no part of the Statement was admissible in the absence of the defendant’s own testimony. B. The Testimony of the Defendant’s Intelligence Briefers The same fundamental issues framed the parties’ dispute with regard to the second category of evidence regarding the defendant’s state of mind or memory defense. The defendant sought to offer the testimony of three government officials who were collectively responsible for briefing the defendant six days per week on various issues of national security and providing him up-to-date intelligence on those issues. Through that testimony, the defendant desired to present to the jury, in varying degrees of detail, the issues about which he was briefed — and which he therefore asserted occupied his attention — during the days and weeks surrounding the events that formed the basis for the charged offenses. The first question the Court addressed was whether and how such testimony would be relevant. As the Court made clear on earlier occasions, the content of the briefings “themselves are not relevant, as they do not show what the defendant believed was important or what matter the defendant devoted his efforts to on a given day,” Libby I, 467 F.Supp.2d at 3-4, but for the actual time when the briefings were being conducted. Rather, as the Court explained, what made the briefings relevant was the “defendant’s testimony about what he was focused on and that his workday was consumed by the information” contained in them. Id. The Court, as discussed above, was operating under the assumption that the defendant would in fact testify to this effect, an assumption which was removed from the equation. In the absence of the defendant’s testimony, or other evidence that could be substituted for the defendant’s testimony, allowing -the briefers’ testimony to convey to the jury that the defendant was more concerned about the issues on which they briefed him than about the events at issue in this case would have left the government with no avenue to challenge that suggestion through cross-examination. The defendant argued that such testimony was relevant nonetheless because the jury reasonably could infer from fact that the issues were part of the constant flow of information the defendant received that they, along with many other things, were among the matters that concerned the defendant on key dates. In other words, the defendant opined that the length of time he spent each day receiving the briefers’ reports, as well as the fact that on occasion he requested to keep the briefing materials throughout the day or overnight, suggested at the very least that the defendant spent some amount of time focused on these issues. In short, the defendant argued that even if he cannot portray through the briefers’ testimony the relative importance he ascribed to various national security issues, he should at least be permitted to show that he was concerned to some extent by the information he received about those issues. In the government’s view, however, the distinction the defense drew between the inference the jury could draw from the briefers’ testimony that the defendant was more concerned with national security matters than the Píame affair, on the one hand, and testimony that the defendant simply was concerned, at least to some degree, about these matters of national security, on the other hand, was a semantic illusion. From the government’s perspective, even if the briefers did not explicitly suggest the relative importance the defendant attributed to the national security matters on which he was briefed, the briefers’ testimony concerning those matters would invite the jury to speculate about the relative significance the defendant attached to them. The government argued that testimony about the briefings should be precluded in its entirety because the Court’s CIPA rulings on the admissibility of the briefings was premised on the defendant presenting testimony on the briefing subjects. The government was correct that, as was true of the Statement Admitting Relevant Facts, the Court’s § 6(a) rulings pertaining to the defendant’s intelligence briefings, and the level of detail the Court deemed admissible, hinged on its assumption that the defendant himself would lay a foundation establishing their relevance. Likewise, as with the Statement, the Court was cognizant of the potential for prejudice that would have arisen if the defendant had been permitted to portray his own state of mind without allowing the government any effective means of challenging it through cross-examination. And there was indeed a significant danger that if presented with details of national security issues and suggestions by those who worked with him that the defendant himself was personally concerned about those issues, the jury would have been unable to resist speculating about the relative import of those matters to the defendant. By the same token, excluding any reference to the briefings or the topics they covered would have overly inhibited the defendant’s ability to present his memory defense. The defendant’s decision not to testify did not preclude him entirely from presenting his memory defense to the jury. Rather, it simply limited the scope of that defense and what he could argue. Without the defendant’s own testimony, he could not present through the briefers evidence suggesting what matters were allegedly consuming his time or attention beyond when the briefings were conducted, or the relative importance of those matters he was tasked to address at a particular time. However, the defendant still had the ability to present evidence through the briefers of the nature of the information they presented to him to show what was occupying his attention during the briefings. Although the details of the matters covered during the briefings were not relevant without the defendant’s testimony and would have created a risk of prejudice and confusion because the jury may have im-permissibly speculated on the relative importance of those details as compared to the matters that are the subject of this prosecution, it would impair the defendant’s right to a fair trial to prohibit him from providing the jury with at least a general perspective on the matters he was advised about by the briefers. Accordingly, the Court concluded that the defendant could present to the jury, through the briefers’ testimony or otherwise, the topic areas he was briefed on during the dates in question as a means of giving the jury a general appreciation of the matters he was responsible for addressing on those dates. C. The Defendant’s Fifth and Sixth Amendment Rights Notwithstanding the Court’s conclusion about the admissibility of the Statement and the briefers’ testimony, the defendant argued that excluding that evidence to any degree would violate several of his constitutional rights under the Fifth and Sixth Amendments. First, he argued in general terms that excluding evidence of his state of mind because he chose not to testify would violate his right to present a defense under the Fifth and Sixth Amendments. Def.’s State of Mind Br. at 1-2; Tr. 02/14/07 a.m. at 48. Second, he asserted that such a ruling making the admissibility of the disputed evidence conditioned upon his willingness to testify in his own behalf would impermissibly burden his Fifth Amendment right to remain silent. Def.’s State of Mind Br. at 10-12; Tr. 02/14/07 a.m. at 47. Third, along similar lines, he contended that the ruling would infringe his Sixth Amendment right to have the benefit of counsel in making his decision regarding whether and when to testify. Def.’s State of Mind Br. at 10-12; Tr. 02/14/07 a.m. at 47. Finally, with respect to the Statement, the defendant contended that because he relied upon its admissibility when reading it to the jury during his opening statement, excluding the Statement as inadmissible thereafter would violate his Fifth Amendment right to due process. Def.’s State of Mind Reply at 5; Tr. 02/14/07 a.m. at 48. Upon careful consideration, the Court could not accept any of the defendant’s constitutional arguments. 1. Fifth and Sixth Amendment Right to Present a Defense Among the fundamental guarantees ensured to a criminal defendant by the Constitution is the right to present a defense to the charges he is facing. See Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). As the Supreme Court recognized in Washington, this right finds its roots in the accused’s Sixth Amendment right to compulsory process to obtain the testimony of witnesses. See 388 U.S. at 19, 87 S.Ct. 1920 (observing that “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense”). An accused’s entitlement to “a meaningful opportunity to present a complete defense[,]” Holmes v. South Carolina, 547 U.S. 319, -, 126 S.Ct. 1727, 1731, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), however, is neither unlimited nor absolute). United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). First, although the Constitution entitles a defendant an opportunity “to present [his] version of the facts ... to the jury so it may decide where the truth lies,” Washington, 388 U.S. at 19, 87 S.Ct. 1920, that guarantee extends only to relevant evidence, see Scheffer, 523 U.S. at 308, 118 S.Ct. 1261; United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005) (“Simply stated, a criminal defendant does not have a constitutional right to present evidence that is not relevant and not material to his defense.”); United States, v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir.2003) (holding that “criminal defendants do not have a right to present evidence that the district court, in its discretion, deems irrelevant or immaterial”); United States v. Munoz, 233 F.3d 1117, 1134 (9th Cir.2000) (holding that exclusion of irrelevant evidence does not violate defendant’s Sixth Amendment rights). Second, even “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions,” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261, including restrictions imposed by the other rules of evidence such as Rule 403. Cf. Taylor, 484 U.S. at 410, 108 S.Ct. 646 (holding that the Sixth Amendment does not confer on defendants “an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence”). Here, the defendant argued that his right to present a defense would be impermissibly impaired by the Court’s ruling excluding evidence concerning the specific national security matters on which he worked and about which he continuously received information. Def.’s State of Mind Br. at 1. As indicated above, however, the evidence the Court has excluded was not admissible standing alone. While the general topics of the briefing materials had some relevance to his memory defense— and were therefore admissible regardless of whether the defendant testified — the Statement that the Court has excluded and the level of detail he sought to introduce through the briefers’ testimony had no basis for their admissibility, absent a showing, through the defendant’s testimony or otherwise, that these matters were in fact of specific concern to him. Moreover, as explained above, even if relevant, these items of evidence were inadmissible under Rule 403 because of their potential for prejudice to the government in the absence of an opportunity to challenge the extent of their importance to the defendant through cross-examination. Although the Court remained, as it did throughout the trial, deeply concerned with ensuring that the defendant is provided a meaningful opportunity to present his chosen defense, it could not agree with the defendant that the Constitution entitled him the unfettered right to present evidence the Court found irrelevant or otherwise inadmissible. 2. Fifth Amendment Right to Remain Silent The defendant alleged that this case does not present the straightforward, uncomplicated scenario where the Court’s ruling that particular evidence is inadmissible merely precludes him from introducing that specific evidence. Instead, he argued, the Court’s ruling that the disputed evidence is inadmissible is predicated upon his decision not to testify — a decision reserved to him by the Fifth Amendment’s proscription on compelled self-incrimination. Def.’s State of Mind Br. at 10; Tr. 02/14/07 a.m. at 47. Thus, by effectively conditioning the admissibility of such evidence on his willingness to take the witness stand, the defendant argued that the Court imposed an impermissible burden on the exercise of his Fifth Amendment right to remain silent. The Court could not agree with the defendant’s position. The Fifth Amendment entitles an accused “to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Accordingly, neither a state by enacting a statute, nor a court through its actions, may “exact[ ] a price for [the defendant’s] silence,” Brooks, 406 U.S. at 610, 92 S.Ct. 1891, in a way that hinders the exercise of his Fifth Amendment rights. In Brooks, for instance, the Supreme Court invalidated a state law requiring that criminal defendants electing to testify on their own behalf do so before any other defense witness testified. See id. at 611, 92 S.Ct. 1891. Although recognizing the ancient origins of the rule underlying the statute at issue, see id. at 607, 92 S.Ct. 1891, the Court held that Tennessee’s law violated the defendant’s Fifth Amendment rights because it forced the defendant to decide whether to exercise that right without first hearing the testimony of his own witnesses, see id. at 612, 92 S.Ct. 1891. While an accused “will usually have some idea of the strength of his evidence,” id. at 609, 92 S.Ct. 1891, the Court recognized that a criminal defendant “cannot be absolutely certain that his witnesses will testify as expected or that they will be effective on the stand[,]” id. As a result, “a defendant may not know at the close of the [prosecution’s] case whether his own testimony will be necessary or even helpful to his cause.” Id. at 610, 92 S.Ct. 1891. By “pressuring the defendant to take the stand [and] foreclosing later testimony if he refuses,” id. at 611, 92 S.Ct. 1891, effectively making the defendant’s choice to testify a ‘now or never’ decision, the Tennessee law “casts a heavy burden on a defendant’s otherwise unconditional right not to take the stand,” id. at 610-11, 92 S.Ct. 1891. Accordingly, the Court concluded that the statute violated the Fifth Amendment. See id. at 612, 92 S.Ct. 1891. Likewise, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that comments by the court or by the prosecution to the jury concerning the defendant’s refusal to testify, and the significance the jury should attach to that refusal, imposes an impermissible burden on the defendant’s exercise of his right to remain silent. See id. at 614, 85 S.Ct. 1229. At issue in Griffin was the trial court’s jury instruction indicating that the jurors could “take [the accused’s] failure [to testify] into consideration as tending to indicate the truth” of “any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge.” Id. at 610, 85 S.Ct. 1229. Such comments, the Supreme Court held, amount to “a penalty imposed by the courts for exercising a constitutional privilege,” effectively “cut[ting] down on the privilege by making its assertion costly.” Id. at 614, 85 S.Ct. 1229. Notably, the Court distinguished the burden such an instruction would impose from the inevitable cost a defendant faces in refusing to testify and thus leaving it to the jury to consider for itself the import of that refusal. See id. (“What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another”). In light of these decisions, the defendant was quite correct that the Court could not, consistent with his constitutional rights under the Fifth Amendment, impose artificial strictures on his decision of whether and when to testify. The defendant was wrong, however, to suggest that the Fifth Amendment prohibits the Court from excluding evidence that is not otherwise relevant unless and until the defendant lays an adequate foundation for its admissibility, even if that foundation can only be laid through his own testimony. Although Brooks, Griffin, and other cases cited by the defendant preclude the Court from imposing penalties on the defendant’s exercise of his right to remain silent, the Supreme Court has never held that the Fifth Amendment is infringed whenever a defendant faces any cost in the exercise of that privilege. On the contrary, the Court has long recognized that the defendant’s decision to testify or to remain silent always imposes costs. As Brooks itself makes clear, a defendant’s choice to testify inevitably presents the possibility of a devastating cross-examination, while declining to testify may mean that the accused gives up the chance to put the most probative evidence in his favor before the jury. See Brooks, 406 U.S. at 609, 92 S.Ct. 1891. The costs a defendant must assess, include, not merely the benefit or damage his own testimony might generate, but also the consequences his decision whether to take the stand may have on the admissibility of other evidence. See id. (noting that “a defendant’s choice to take the stand ... ‘may open the door to otherwise inadmissible evidence which is damaging to his case’ ”) (quoting McGautha v. California, 402 U.S. 188, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972)). Yet, despite these costs and the potential effect they may have on the defendant’s decision to testify, “ ‘it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.’ ” Id. (quoting McGautha, 402 U.S. at 215, 91 S.Ct. 1454). Indeed, the Court’s primary concern in Brooks was ensuring that the defendant had an opportunity to evaluate all of these costs before choosing, once and for all, whether to testify in his own defense or instead to remain silent. See id. at 610-11, 92 S.Ct. 1891. The central teaching of the Supreme Court’s holdings in this area of the law is that the Fifth Amendment does not command courts to equalize the costs and benefits defendants face in deciding whether to testify. Instead, it merely precludes a court from imposing additional, artificial costs upon the defendant or from disabling the defendant from evaluating these costs before making a final decision whether to testify. What is therefore of ultimate concern is the character and source of the costs a defendant faces when choosing whether to testify, not whether there are any costs whatsoever to assess. Thus, the costs that naturally follow from a defendant’s decision to testify — or alternatively, to remain silent — do not violate the Fifth Amendment. As noted above, the Supreme Court in Brooks expressly acknowledged the consequences a defendant’s decision to take the stand might have on the admissibility of other evidence, noting that doing so may “open the door to otherwise inadmissible evidence.” 406 U.S. at 609, 92 S.Ct. 1891 (quoting McGautha); cf. McGautha, 402 U.S. at 213, 91 S.Ct. 1454 (rejecting the proposition “that the mere force of evidence is compulsion of the sort forbidden by the [Fifth Amendment] privilege”). Likewise, in Griffin, the natural inferences a jury might draw from a defendant’s silence in the absence of a jury instruction— as distinct from those it would be directed to reach by the court’s instruction — do not constitute costs that the Fifth Amendment prohibits. See Griffin, 380 U.S. at 614, 85 S.Ct. 1229; see also United States v. Lindo, 18 F.3d 353, 356-57 (6th Cir.1994) (holding that where a defendant declined to testify and failed to offer any other evidence satisfying the threshold requirements of a good faith defense to securities charges, the district court’s refusal to instruct the jury on good faith defense did not impermissibly burden the defendant’s Fifth Amendment privilege against self-incrimination), cited with approval by United States v. DeFries, 129 F.3d 1293, 1308 (D.C.Cir.1997). On the other hand, burdens imposed by statute or by a court that penalize the exercise of a defendant’s Fifth Amendment rights by levying some additional, artificial cost upon the invocation of that right do run afoul of that Amendment’s guarantees. Thus, the requirement of the state statute in Brooks that the defendant testify first in his case in chief or not at all infringed his Fifth Amendment rights because it imposed an additional and artificial price on his exercise of the privilege. See 406 U.S. at 609, 92 S.Ct. 1891. Similarly, the Court’s comments to the jury in Griffin, which “solemnize[d] the silence of the accused into evidence against him”, also infringed Griffin’s right not to testify. See 380 U.S. at 614, 85 S.Ct. 1229. An evidentiary ruling barring certain defense evidence when a defendant decides not to testify falls squarely into the first category. It is true, of course, that whether such evidence will be admitted could have an effect on the defendant’s decision whether to waive his Fifth Amendment privilege, as what evidence he may introduce is predicated upon his own testimony laying the foundation for 'the evidence’s admissibility may affect his calculus of whether to testify. But this simply is not the sort of impermissible cost the Supreme Court foreclosed in Brooks and Griffin. Thus, in this case, by excluding the evidence the defense seeks to offer because it is not independently relevant, and would be unduly prejudicial, the Court did not preclude the defendant from exercising his choice of whether and when to testify. Indeed, the defendant was entitled to adopt a different course until the very close of his case, consistent with the dictate of Brooks, 406 U.S. at 609, 92 S.Ct. 1891. Rather, this Court’s ruling excluding such evidence absent adequate foundation simply reflected the reality — implicitly acknowledged by the Supreme Court in Brooks, id., and McGautha, 402 U.S. at 213, 91 S.Ct. 1454 — that declining to testify comes at the unavoidable cost of forfeiting the opportunity to introduce evidence that is irrelevant or not otherwise independently admissible. Just as a defendant who invokes the Fifth Amendment privilege to refrain from testifying, thereby abandoning the opportunity to present what may be the best evidence available to him, the defendant here elected to sacrifice the benefit the disputed evidence might have afforded him. Cf. United States v. Stanfa, 685 F.2d 85, 89 (3d Cir.1982) (affirming district court’s exclusion [in prosecution for making false declarations to grand jury] of evidence of “gángland-style slayings” of defendant’s associates, offered in support of duress defense to show defendant’s fear of reprisals at time of grand jury testimony, because defendant failed to establish through his own testimony or otherwise that he feared such reprisals at the time of his testimony); United States v. Scott, 660 F.2d 1145, 1166 (7th Cir.1981) (upholding district court’s exclusion of defense witnesses’ testimony offered to show defendant’s state of mind where defendant failed to lay foundation through his own testimony or otherwise). Accordingly, the Court concluded that excluding the challenged evidence in light of the defendant’s decision not to testify does not violate the defendant’s Fifth Amendment right to remain silent. 3. Sixth Amendment Right to Assistance of Counsel Along similar lines as his Fifth Amendment claim, again relying on Brooks, the defendant also argued that the Court’s ruling making the admissibility of the disputed state of mind evidence conditional upon his testimony violates his Sixth Amendment right to the assistance of counsel in his determination of whether to exercise his Fifth Amendment right to remain silent. Def.’s State of Mind Br. at 10-11; Tr. 02/14/07 a.m. at 47. In Brooks, the Supreme Court held that beyond violating the Fifth Amendment, requiring a defendant to testify at the outset of his case also denies the accused and his attorney “an opportunity to evaluate the actual worth of their evidence ... restricts the defense — particularly counsel — in the planning of its case[,]” thereby withholding from the defendant “the guiding hand of counsel” guaranteed to the accused by the Sixth Amendment. 406 U.S. at 612, 92 S.Ct. 1891. Relying on Brooks, the defendant argued that making the admissibility of the disputed evidence depend upon his decision to testify effectively precludes him from reserving his decision whether to testify until the end of his case. Although he did not explicate this argument in any detail in his Brief or during oral argument, the defendant’s core contention seemed to be that excluding such evidence without his testimony .would make it impossible to wait until the end of his case-in-chief to choose whether to take the stand, as he would not be able to introduce the other evidence he deems essential to his case unless he first testifies to lay