Court in Scooter Libby Prosecution Orders Some Journalists’ Records Revealed
 
July 10, 2006
 

A federal judge has ordered Time to produce documents after finding that the magazine’s contents constituted key evidence of the events leading to the indictment of a White House aide for allegedly lying to a grand jury. Judge Reggie B. Walton of the United States District Court for the District of Columbia held that the First Amendment does not shield the documents when the involvement of the reporters themselves is crucial to the prosecution and the defense of alleged criminal activity.

In U.S. v. Libby, I. Lewis “Scooter” Libby, the former chief of staff to Vice President Dick Cheney, is accused of obstruction of justice, making false statements and perjury stemming from his testimony about the leak of a covert CIA agent’s name to the media. The case centers on statements Libby made to a grand jury and the FBI regarding his conversations with reporters in the summer of 2003. The agent, Valerie Plame Wilson, is the wife of former United States Ambassador Joseph C. Wilson, an open critic of the administration’s justifications for the invasion of Iraq. Special Prosecutor Patrick J. Fitzgerald has charged that the leak of Plame’s name was in retaliation for a New York Times editorial in which Ambassador Wilson challenged the administration’s justifications for the invasion. Libby was later identified as the source of the leak by former New York Times reporter Judith Miller.

In this criminal action, the Libby defense team issued subpoenas to a number of news agencies, seeking all documents prepared or received by any employee that referred to Plame and her husband before news of Plame’s employment was first published. NBC, the New York Times and Time filed motions to quash the subpoenas. The court reviewed all challenged documents identified by the subpoenas in camera before ruling.

The court disagreed with the news agencies’ assertions of a First Amendment and common law reporters’ privilege under these facts. The court applied Branzburg v. Hayes, the 1972 case in which the United States Supreme Court, by a 5-4 vote, required reporters to testify before grand juries. In accordance with the principles of Branzburg, the district court held that it would be “absurd” if the First Amendment permitted the news agencies to “stonewall a criminal indicted by a grand jury,” especially since evidence about Libby’s discussions with journalists is at the heart of the prosecution.

Finding that no privilege exists in this context, the court then examined each subpoena under the court rules applicable to all parties subpoenaed in a criminal case. The court:

• granted Judith Miller’s motion to quash on procedural grounds, finding that her reporter’s notebooks, telephone records and other documents were not relevant to Libby’s defense. The court said it would not allow Libby to conduct what appears to be little more than a “fishing expedition.”

• essentially held the New York Times subpoena in abeyance after finding that, depending on the testimony that comes out at trial, the notes disclosed to the judge revealed information that may be relevant for impeachment purposes. The court said it would not rule on the document production from the New York Times unless and until statements contrary to the notes are made in the courtroom.

• reached the same conclusion with respect to the NBC subpoena, finding that the documents would only be relevant to the impeachment of reporter Andrea Mitchell and should only be disclosed if Mitchell testifies inconsistently with the documents.

• compelled production of the Time documents, finding that there was a slight alteration between several drafts of the magazine articles relating to the Plame incident, and that Time journalist Matthew Cooper (who testified to the grand jury that indicted Libby) can be impeached on the basis of the perceived inconsistencies. Libby is therefore entitled to the documents in the preparation of his defense.

NBC, the New York Times and Time have stated that it is unlikely that they will challenge this ruling.

For more information, e-mail Amy Mushahwar at amy.mushahwar@hklaw.com or call toll free, 1-888-688-8500.