Lawyers for I. Lewis “Scooter” Libby said Friday that they soon planned to subpoena reporters and news organizations, and a federal judge set the stage for a showdown in late April on whether the media would have to comply with the subpoenas in order to afford the former White House aide a fair trial.
U.S. District Judge Reggie B. Walton also said a special prosecutor would have to turn over hundreds of pages of notes compiled by Libby while he was chief of staff to Vice President Dick Cheney. But Walton put off a defense request that the prosecutor turn over highly classified presidential daily briefs that Libby received while in the White House.
His lawyers have said the daily briefs were crucial to showing that Libby was immersed in matters of state and didn’t intentionally mislead investigators and a grand jury, as the government has alleged.
Libby, 55, was indicted in October on perjury and obstruction charges. Prosecutors contend he lied to authorities about his role in the July 2003 unmasking of CIA operative Valerie Plame. Libby told authorities that he first learned the identity of Plame from a television journalist; the government contends that he in fact deliberately acquired and disseminated information about Plame and her husband, Joseph C. Wilson IV, a former U.S. envoy who had criticized the Bush administration over the Iraq war.
Lawyers for Libby say they have reason to question the accuracy of statements that journalists have made about him to special prosecutor Patrick J. Fitzgerald. They are also seeking to prove that information about Plame was widely known among reporters at the time, and that Libby therefore would have no incentive to lie about his knowledge of her.
Walton set an April 7 deadline for recipients of the subpoenas to respond to whether they intended to comply with them, and a date of April 21 for a hearing to consider objections.
“We want the issue to be joined as quickly as possible,” Theodore V. Wells Jr., one of Libby’s lawyers, said Friday at a hearing in federal court in Washington. He did not indicate how many reporters or news organizations would be subpoenaed, although he and the rest of the Libby legal team have indicated they would cast a wide net.
Fitzgerald, the U.S. attorney in Chicago who was appointed more than two years ago to investigate whether Plame’s identity was disclosed in violation of a federal law protecting covert agents, previously subpoenaed reporters from news organizations including Time magazine and the New York Times.
Those moves triggered a 1st Amendment battle that went to the Supreme Court, and resulted in one journalist who initially refused to comply, former New York Times correspondent Judith Miller, spending 85 days in jail.
The subpoenas in Libby’s case are also likely to touch off a legal battle over competing considerations -- the rights of journalists to protect conversations with confidential sources, and the right of defendants to a fair trial. Depending on the scope of the subpoenas, lawyers for Libby might also seek information about individual reporters and their reputation for honesty and accuracy, some media experts have said.
The battles over journalists and classified information have left Walton struggling to keep Libby’s trial on track for January 2007.
A major stumbling block, which Walton left unsettled Friday, was a request from Libby’s lawyers to see dozens of presidential briefing papers that he received while working for Cheney and which are considered some of the most sensitive information in government. Cheney has called those documents “the family jewels” of the government.
Wells said those documents were essential to show the detail and level of immersion that Libby found himself in as a senior official. Wells also signaled that the defense might call an expert witness to testify about memory and recall, presumably to buttress claims that any lapses were not unusual for a person of his stature.
“The very heart of our defense is about the family jewels,” Wells said. “We need the notes and the PDBs to put together a story to make the jury believe that his defense is not concocted.”
Walton reserved judgment on the request but expressed concern because he said the Bush White House probably would invoke executive privilege and refuse to turn over the classified reports.
“Isn’t this going to sabotage the ability of this case to go forward?” he asked. “If the executive branch says, ‘this is too important to the welfare of the nation and we’re not going to comply,’ the criminal prosecution goes away.”
Walton said he would decide the issue within a few weeks. He ordered Fitzgerald to have the CIA prepare a filing on how difficult it would be to find and collect the information.
Walton also said Fitzgerald could keep secret the identity of another government official who allegedly revealed the identity of Plame to journalists before Robert Novak first disclosed it July 14, 2003, in a syndicated column.
One government official who has acknowledged speaking with reporters around that time was White House political aide Karl Rove, who remains under investigation.
But Libby’s lawyers apparently were targeting a third official who talked with reporters during that period, including Washington Post reporter and editor Bob Woodward. The identity of that official has not been revealed.
William Jeffress, another lawyer for Libby, said at the hearing that the defense needed the information to show that other reporters were discussing Plame. Jeffress indicated the official did not work in the White House but elsewhere in government.