May 16, 2006 and After: Judge Reviews Journalists’ Notes and Records in Libby Proceedings

At a pretrial hearing on a motion to quash the Libby defense team’s subpoenas of journalists and media organizations (see May 8, 2006), lawyers for the New York Times, Time magazine, and NBC News agree to turn over notes, memos, and documents pertaining to their journalists’ involvement in the Valerie Plame Wilson identity leak. The Washington Post and CNN have already turned over materials requested by the defense. During the hearing, Lewis Libby’s lawyers indicate that their trial strategy will be to attack the credibility of those journalists, and claim that it was the journalists, not Libby, who lied to special counsel Patrick Fitzgerald’s investigators and the FBI. “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,” Judge Reggie Walton says during the hearing. Robert Bennett, the lawyer representing former Times reporter Judith Miller, says during the hearing that the defense’s efforts amount to nothing more than “a massive fishing expedition.” He adds, “They just want to romp through her records,” and argues that Libby’s lawyers already have all the relevant information, since Miller has already provided some information from her notebooks. “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 says. For their side, Libby’s lawyers argue that Libby’s right to a fair trial outweighs any considerations that might be given to journalists’ right to protect their sources. One of Libby’s lawyers, William Jeffress, says his job isn’t to prove anything from either the reporters’ statements or his client’s, but merely to raise “reasonable doubt” in the minds of jurors. In the days after the hearing, Walton looks over notes, drafts, and records from those journalists turned over to him by the Times, Time magazine, and NBC News, in order to find any information related to Libby’s perjury and obstruction case. Walton orders Time to turn over drafts of reporter Matthew Cooper’s first-person account of his grand jury testimony (see May 26, 2006). [Associated Press, 5/13/2006; Reporters Committee for Freedom of the Press, 5/17/2006; Washington Post, 5/17/2006; Reporters Committee for Freedom of the Press, 11/19/2009]