NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · May 26, 2006
Court limits evidence Libby can obtain from journalists
May 26, 2006 · Time magazine’s Matt Cooper must turn over drafts of a first-person account of his grand jury testimony last year, U.S. District Judge Reggie B. Walton ruled today, quashing most of the subpoenas Vice President Dick Cheney’s former chief of staff issued to journalists as part of his defense on perjury and other charges.
After reviewing reporters’ notes and other material from three news organizations, Walton ruled that I. Lewis “Scooter” Libby can have access to drafts of Cooper’s July 25 account in Time magazine, “What I Told the Grand Jury,” because there are differences between the draft and final versions.
“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,” Walton wrote.
Cooper, who narrowly escaped going to jail last summer for refusing to reveal a source after his source voluntarily waived confidentiality, testified last summer before a federal grand jury investigating who leaked the identity of CIA agent Valerie Plame to the media.
Libby, who faces charges of perjury, obstruction of justice and lying to the F.B.I. in the investigation, cannot see similar working documents from former New York Times reporter Judith Miller and other journalists because doing so would be a “fishing expedition” for any possible relevant information the media might have, Walton ruled.
Libby subpoenaed Cooper, Time Inc., Miller, the Times, NBC News and reporter Andrea Mitchell seeking information which would support his defense — that he did not reveal to journalists Plame’s identity and that the reporters are lying about where they found that information.
Walton ruled that under federal rules of evidence, Libby is entitled only to materials that are relevant to his case and admissible at trial, and that he can request with specificity, rather than generally demanding all materials. Libby cannot comb through every note from reporters in search of any possible information.
Libby’s subpoena requests to Miller “appear to be nothing more than a fishing expedition” because they sought her unredacted notebooks, appointment calendars, telephone logs, any document that referred to Ambassador Joseph Wilson — Plame’s husband — and all documents relating to Miller’s conversations with Libby, including a draft of her Oct. 16 first-person account of her testimony.
“In essence, the defendant is simply seeking to examine general categories of documents with the hope that they contain information that may be helpful to his defense,” Walton wrote.
Walton found that some Times documents sought by Libby could be admissible as “impeachment evidence,” usable at trial by Libby only if Miller’s testimony varies from the documents.
“There can be no doubt that documents that would tend to show that the defendant accurately relayed to the grand jury and the FBI agents his conversation with Miller, Cooper, and [NBC News’ Tim] Russert are relevant to the defendant’s effort to defeat the successful prosecution of this action,” Walton wrote.
Walton also ruled that Libby cannot seek any information from the journalists regarding Wilson’s trip to Africa, which he wrote about in a New York Times column criticizing the reasons for the U.S. invasion of Iraq. Some think that the outing of Plame, Wilson’s wife, was in retaliation for Wilson’s outspoken views on the issue.
Walton ruled that “the only possible way documents responsive to this request could be relevant is if the defendant . . . is permitted to inquire into whether [Miller] sought to pursue a story on Ambassador Wilson and his trip to Niger. However . . . it is virtually inconceivable that this line of inquiry will be permitted.”
Walton also ruled that the subpoenas on Mitchell and NBC News either sought information as a fishing expedition or would not be relevant to Mitchell’s or Russert’s testimony.
In quashing most of the subpoenas, Walton ruled that the media, in this case, was not protected by a reporter’s privilege under the First Amendment. And although media lawyers asked the court also to consider whether they had a privilege under federal common law, the court did not answer that question because it ruled that even if a common law privilege existed, Libby had overcome it.
During a May 16 hearing on motions from the journalists and media companies to quash the subpoenas, Miller, The New York Times, NBC and Time magazine agreed to turn over the subpoenaed material for Walton to review privately before ruling.
(U.S. v. Libby) — CM