May 26, 2006: Judge Dismisses Most of Defense Requests for News Organizations, Reporters’ Notes and Documents

Judge Reggie Walton orders the Lewis Libby defense team’s subpoena for former New York Times reporter Judith Miller’s notes and documents to be quashed (see May 16, 2006 and After), a ruling that the Washington Post terms “the latest in a string of court defeats for media efforts to shield news-gathering activities from the legal process.” “The First Amendment does not protect news reporters or news organizations from producing documents when the news reporters are themselves critical to both the indictment and prosecution of criminal activity,” Walton writes. But, he continues, “all other motions [referring to other journalists’ and news organizations’ attempts to quash similar subpoenas] are granted in part and denied in part.” Miller’s notes and records not already in evidence “are simply not relevant” to the case at hand, Walton rules, and chides the Libby defense lawyers for trying to seek unspecified evidence—in essence, demanding materials be turned over in the hopes of finding something useful. “This is not the proper role [such] subpoenas are intended to play in the criminal arena,” Walton writes. “Rather they may be used solely to secure specifically identified evidence for trial that is relevant and admissible.” He agrees with the quash motions that many of the defense’s subpoenas are “fishing expeditions.” Walton withholds final judgment on the relevance of some of the New York Times’s records, though he writes that he doubts the materials will ever prove relevant. He does not approve the subpoenas for records from NBC News and its reporter Andrea Mitchell. Walton does, however, order Time magazine to turn over some documents pertaining to an article written by its reporter Matthew Cooper (see July 13, 2005), saying that “a slight alteration” between information in the drafts could be relevant in Libby’s stated intention to paint Cooper as dishonest. [Bloomberg, 5/26/2006; Washington Post, 5/26/2006; US District Court for the District of Columbia, 5/26/2009 ; US District Court for the District of Columbia, 5/26/2009 ]