NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · May 17, 2006
Libby to attack journalists’ credibility
May 17, 2006 · A lawyer for I. Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, told a federal judge yesterday that as part of Libby’s defense on perjury and other charges, he plans to attack the credibility of Time magazine’s Matt Cooper and other journalists who say that Libby told them the identity of CIA agent Valerie Plame in 2003.
The defense tactic was revealed in a hearing Tuesday in which lawyers for several media outlets agreed to turn over journalists’ notes, transcripts and other documents to U.S. District Judge Reggie B. Walton who will review the material and decide as early as next week whether to quash reporters’ subpoenas from Libby.
At issue is the balance between Libby’s trial rights and the reporter’s privilege to keep notes and other material confidential.
“I do respect the important role that the press plays in our society but want to give Mr. Libby the information he needs for a fair trial,” Walton said during the three-hour hearing.
Libby is charged with perjury, obstruction of justice and lying to the FBI in regard to his testimony to a grand jury. Special Counsel Patrick Fitzgerald is investigating the June 2003 outing of Plame’s identity as a CIA agent — supposedly in retaliation for articles and comments by Plame’s husband, Ambassador Joseph Wilson, who criticized the administration’s evidence for going to war in Iraq in The New York Times.
William Jeffress, Libby’s lawyer, told Walton that Libby needs former Times reporter Judith Miller’s unredacted notes in two notebooks along with a transcript of the interview she gave to Times reporters for an October article about her case. Jeffress said Libby also needs documents from NBC News and Time magazine.
The information is crucial, Jeffress said, to show that the journalists, not Libby, lied to a grand jury. Jeffress said that information already turned over by Time magazine shows that Cooper did not mention Wilson’s wife in his notes or in an e-mail message to his editor following his conversations with Libby and presidential adviser Karl Rove — omissions which Jeffress contends show that Cooper, not Libby, lied.
Libby wants to find out who else Cooper had talked to who might have given him Plame’s name and identity.
“We should be entitled to anything that Cooper has said,” Jeffress told Walton. Libby’s defense, Jeffress said, “is going to be that as he talked to the FBI and the grand jury, he believed that if he told the truth and everybody else told the truth, he would be OK.”
Robert Bennett, Miller’s lawyer, called Libby’s efforts “a massive fishing expedition.”
“They just want to romp through her records,” said Bennett, who argued that Libby already has all relevant information since Miller provided redacted versions of her notebooks, with only names and notes completely unrelated to the case removed. Miller testified before the grand jury in October after spending 85 days in jail for refusing to reveal her source.
“The only thing that has not been produced are things that they are not entitled to” under federal rules of evidence, such as “records of people unrelated to the case and other sources about other subjects. They have everything relevant to this case,” Bennett said.
But Jeffress argued that seeing the unredacted version of Miller’s notebooks would allow Libby to see who else Miller talked to around the time that Plame’s identity was released. Even if there is no mention of “Plame” or “Wilson” or anything related to the case, Jeffress argued, if she had talked to another reporter or government agent who knew Plame worked at the CIA, that could allow Libby to connect the dots and determine where Miller learned that information.
“What she learned and where she learned it about Wilson’s wife goes right to the heart of this case,” Jeffress argued. “These notes are vital to the case. If we can look at the original notes and put that together with people who know what Wilson’s wife did, we can find out where that information came from.”
Judge Walton took a narrow view of Jeffress’ speculation that the transcript of Miller’s Times interview may show that others at the Times may have known about Plame.
“If we can show a reporter knew about the wife, does it make it more likely that Ms. Miller learned about Mr. Wilson’s wife from that reporter? Of course it does,” Jeffress said.
“If anything is possible, than anything is relevant,” Walton responded. “We’re talking about needing something a little stronger than a possibility.”
Walton said that “out of an abundance of caution,” he would personally review the material from Miller, The New York Times, NBC and Time magazine to determine if it should be turned over to Libby. The journalists have until Thursday afternoon to submit the material to Walton, who said he would rule by the end of next week.
(U.S. v. Libby; Media Counsel:) — CM