[Mb-civic] Libby Team to Subpoena Media - Washington Post

[William Swiggard]

Libby Team to Subpoena Media
Defense Plans to Go After Journalists' Notes in CIA Leak Case

By Carol D. Leonnig
Washington Post Staff Writer
Saturday, January 21, 2006; A07

Attorneys for Vice President Cheney's former chief of staff told a 
federal court yesterday that they plan to subpoena several journalists 
and news organizations to obtain their notes and other information they 
consider useful in defending their client from perjury charges.

The plan for defending I. Lewis "Scooter" Libby is likely to 
substantially delay his trial and create another round of tense First 
Amendment battles over whether a court can compel reporters to turn over 
information about the confidential sources in Libby's criminal case.

Libby's attorneys acknowledged their intentions and the possible results 
in a status report that federal prosecutors and defense counsel jointly 
filed yesterday with U.S. District Court Judge Reggie B. Walton in 
anticipation of a Feb. 3 court hearing.

Special Counsel Patrick J. Fitzgerald's two-year investigation into 
whether administration officials knowingly disclosed the identity of CIA 
operative Valerie Plame led to Libby's indictment in October on charges 
that he lied to investigators and obstructed the probe. A crucial 
evidence-gathering tool in the case was Fitzgerald's successful effort 
to force a handful of journalists -- under threat of incarceration -- to 
testify under oath about their confidential conversations with Libby and 
other sources. Former New York Times reporter Judith Miller spent 85 
days in jail before she agreed to comply.

Libby's two lead attorneys, William Jeffress Jr. and Theodore V. Wells 
Jr., declined to comment yesterday. A spokesman for Fitzgerald also 
declined to comment.

The papers filed yesterday do not spell out which reporters might be 
subpoenaed. But at least three -- Miller, NBC News Washington bureau 
chief Tim Russert and Time magazine's Matthew Cooper -- are expected to 
be key witnesses for the government. Fitzgerald is seeking to prove that 
Libby lied to the FBI and a grand jury about his confidential 
conversations with the journalists in the spring and summer of 2003.

Libby testified that he believed he first learned of Plame's role at the 
CIA from Russert in a July conversation, and later passed on the 
information to Miller and Cooper as unverified chatter from reporters.

Russert testified that he and Libby never discussed Plame in that 
conversation. Fitzgerald asserted that Libby first learned about Plame 
from administration officials, including Cheney, a month before talking 
to Russert. Miller and Cooper testified that Libby told them about 
Plame's CIA role but never mentioned learning the information from a 
reporter.

In yesterday's court papers, Libby's attorneys hinted at two key 
elements of their defense strategy. First, they signaled plans to 
independently investigate journalists involved in the case -- a move 
that legal experts said would seek to raise doubts about the accuracy of 
the reporters' memories and methods.

Second, defense attorneys are expected to delve into whether other 
administration officials mentioned Plame to reporters before Libby did, 
which would allow them to cast doubt on the prosecutor's assertions. 
Defense lawyers have said that Bob Woodward, a reporter and assistant 
managing editor at The Washington Post, helped their case when he 
revealed in November that another administration source, not Libby, told 
him about Plame's CIA role before Libby is believed to have first 
mentioned her to a reporter.

Charles Tobin, a longtime media lawyer, said he is not sure about the 
advantage Libby would gain by forcing reporters to testify again. But he 
said the move would continue to hurt journalists' ability to dig out 
information and educate the public.

"Sounds to me like deja vu all over again," he said. "We just finished 
with one fishing expedition, and we're about to launch into another one. 
When is this going to stop? At some point, the court needs to let the 
reporters get back to their work, and the lawyers need to focus on the 
facts in their case."

The court filings also make clear what several sources close to the case 
have been saying for weeks: that Fitzgerald has been occupied with the 
Libby case and has not had much time to focus on a decision regarding 
possible charges against the other administration official embroiled in 
the investigation: White House Deputy Chief of Staff Karl Rove.

For the past two months, the special counsel's office has been busy 
providing classified and declassified documents to Libby's defense 
attorneys and trying to iron out pretrial disputes over whether the 
prosecutor is holding back information to which the defense is entitled.

Fitzgerald declined to comment when asked yesterday in Chicago whether 
Rove remains, as he was in December, under investigation for possibly 
misleading investigators about his conversations about Plame with Time's 
Cooper.

But a person close to Rove said Fitzgerald so far this year has not 
indicated any change in Rove's status. Rove expects to hear a final 
decision from Fitzgerald soon and has told friends he is optimistic that 
he will be cleared.

Still, another person close to Rove said it was not a good sign that 
Fitzgerald has not already cleared President Bush's chief political 
adviser. Rove, this person said, has worked under the assumption that 
Fitzgerald is largely finished with his investigation and, because the 
prosecutor is sensitive to the political liability of a possible 
indictment hanging over the head of Rove, would publicly clear him 
quickly if he did not have enough evidence to charge him.

Rove, who reemerged on the political scene yesterday with a fiery speech 
to the Republican National Committee, has been assuming an increasingly 
public role at the White House, which suggested to other aides that he 
was confident of avoiding indictment. Still, White House aides remain 
largely in the dark about the legal fight and concerned that an 
indictment of Rove in the current political atmosphere would be a big 
blow to Bush just as the White House is gearing up its 2006 agenda.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/20/AR2006012001773.html?nav=hcmodule
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