NEWS MEDIA UPDATE · WASHINGTON, D.C. · Secret Courts · Nov. 15, 2005
Dow Jones fights sweeping protective order in Libby case
Nov. 15, 2005 · Dow Jones & Co. Inc., publisher of The Wall Street Journal, argued in U.S. District Court in Washington, D.C., yesterday against a proposed protective order that would prevent I. Lewis “Scooter” Libby and his lawyers from publicly disclosing materials they will receive from the prosecution.
A grand jury indicted Libby on Oct. 28 for perjury and obstruction of justice arising out of Special Prosecutor Patrick Fitzgerald’s investigation into the outing of the identity of CIA operative Valerie Plame. Fitzgerald filed a motion Thursday for a broad protective order, which Libby did not contest. The order seeks to shroud all “material produced by the government in preparation for or in conjunction with any stage of the proceedings in this case” and would prevent the public disclosure of this information under penalty of civil or criminal actions. The order would cover grand jury transcripts and witness statements among numerous other documents.
Dow Jones objected to Fitzgerald’s proposed order on several grounds, including that Fitzgerald apparently did not follow the proper rules of criminal procedure. Federal Rule 16(d)(1) “requires that protective orders in criminal cases be supported by ‘good cause,'” Theodore J. Boutrous Jr. of Gibson, Dunn & Crutcher wrote in the motion.
“The Special Counsel’s motion does not even allege the existence of good cause, let alone identify any facts that would justify a blanket protective order of the type it seeks,” the motion said. Good cause exists only when “a party shows that disclosure will result in a clearly defined, specific and serious injury.”
In this case, “the Special Counsel has identified no justification for secrecy, but has simply presented this Court with a proposed order of sweeping scope and asked that it be entered, no questions asked,” Boutrous wrote.
Boutrous also argued that in criminal cases there is a heightened interest in openness, especially in a case as sensitive and well-covered as Libby’s has been. “Any asserted need for secrecy in this case is further undercut by the fact that the Special Counsel himself has convened a press conference to discuss the facts of the case, many of which had already been revealed in the indictment,” Boutrous wrote. “Moreover, many of the likely witnesses in the case have already disclosed the substance of their grand jury testimony to the public.”
Finally, the motion offered that if certain information must be kept from the public, Fitzgerald should protect it not through a blanket order, but through specific motions protecting only those documents which have a legitimate need for secrecy.
“Indeed, if the Special Counsel has specific concerns about public disclosure of particular documents produced to the defense, the proper approach is to seek a more narrowly-tailored protective order,” Boutrous wrote.
(In re United States v. Libby; Media Counsel: Theodore J. Boutrous Jr., Washington, D.C.) — CM