Scooter & His Discontents

On May 8, 2006, four documents were filed in the United States District Court for the District of Columbia, involving an important part of the trial of I. Lewis Libby. These all involve Team Libby's attempt to subpoena a wide range of information from journalists and corporate media sources. The four documents make strong cases for Judge Reggie Walton to "quash" (meaning to nullify, or to extinguish, summarily and completely) Team Libby's subpoenas.
The four documents were filed by lawyers representing Judith Miller; Matt Cooper; Andrea Mitchell and NBC News; and Time. Before we take a closer look at them, let's review what they are, in general terms. In this case, much like any public meeting or hearing, there is a benefit in having a formal structure. This is especially true when there are disputes being discussed. One of the ways that structure is given in parliamentary law is to have "points of order." There are literally hundreds of points of order, and those who master them tend to make the best attorneys and elected officials.
In the Libby case, people have likely picked up on a sequence in the documents that are being filed. One side files a Motion; the other side files a Response; and then the first side files a Reply. After the Reply, the judge might hold a hearing, or he might issue a ruling.
If he holds a hearing, it could be in open court, and thus become part of the public record. We've had this already in the pre-trial hearings where Team Libby and Mr. Fitzgerald openly debate issues. The most interesting thing that has come out thus far from these hearings was when Mr. Fitzgerald noted that Scooter had testified to the grand jury that both President Bush and VP Cheney had okayed his revealing the classified NIE to journalists.
The judge can also hold hearings "in camera," which is Latin for "in his chambers." There is usually a stenographer there recording the hearing. The judge can afterward decide if the hearing should be put on the public record, or if he should "seal" it due to information that is sensitive, or potentially damaging to a witness not on trial, or if that information could cause prejudice towards one side in the trial. In the documents filed, the journalists' attorneys have requested that if Judge Walton does decide to hold further hearings, that they be in camera.
Now to the interesting part! In March, Team, Libby issued subpoenas to a number of journalists and media corporations. They demanded a wide range of information, including notebooks, unpublished articles, telephone logs, etc. Team Libby stated that these things were needed to "attack the government's case and prove his innocence at trial."
This has created a conflict, because the rules involved for subpoenas involving potential witnesses, is very different from the rules involved in "discovery," when the defense is able to request access to the information that has been gathered by the prosecutor. In the recent past, I've discussed things like the Brady rule (from Brady v. Maryland), which was important in my friend Rubin Carter's appeals. "Discovery" is generally broad, allowing the defense access to information that is potentially helpful and/or harmful to their client's case.
Subpoenas like those Team Libby issued have to be far more specific. Let's look at a section of Miller's 4-18 Motion to get a better sense of this:
"In United States v Nixon, 418 U.S. 683 (1974), the Supreme Court adopted a multi-prong test for a district court assessing the propriety of a Rule 17(c) subpoena. Namely, the party issuing the subpoena must show:
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable in advance of trial by exercise of due diligence;
(3) that the party can not otherwise properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(4) that the application is made in good faith and is not intended as a general 'fishing expedition.'
"Id. at 699-700. Thus, the defendant 'must clear three hurdles: (1) relevancy; (2) admissibility; [and] (3) specificity'." (page 3)
Let's see if Team Libby meets those requirements, or if they are engaged in a "fishing expedition." On page 6 of the Time document, they note that "(a)lthough Mr. Cooper is the only Time employee identified as a potential witness, Mr. Libby asserts that he is entitled to know what other reporters and editors at Time knew about the Wilsons on the theory that 'evidence that Ms. Wilson's CIA affiliation was known outside the intelligence community is critical to the defense.' ...But as Time pointed out in its motion, this theory has no stopping point." Not only does this fail in the sense that Scooter could, in theory, subpoena every blogger on earth, "just in case" they knew something about those darned Wilsons, but it is not relevant to the charges that Libby has to answer to.
Admissibility? Consider footnote 6, on page 4 of the Miller Reply: "Also, as we point out in our opening brief and which Mr. Libby does not contest, his requests are precluded by the Court's prior ruling that such information is immaterial to any claim of defense. (Mem.Op. of March 10, 2006 at n.3). The prior ruling constitutes the law of this case."
More, Libby claims he will use information that may be in various files "to show whether it is Mr. Libby or the reporters who have misstated or misrecollected the facts." He needs it to show that "it was Ms. Miller who raised this topic (Plame) in her discussions with Mr. Libby -- if the topic was raised at all." Miller's Reply notes, "To the extent Mr. Libby has specific information establishing the information he demands is relevant and admissible, it is incumbent upon him to present it to the Court now, in support of his subpoena. He makes no such attempt." (page 4)
Regarding specificity, the NBC Reply notes Libby's "case rests entirely on serial speculation -- i.e., if Ms. Mitchell knew about Ms. Wilson and her employment prior to July 11, and if Ms. Mitchell shared that information with Mr. Russert before he talked with Defendant, and if Mr. Russert then shared the same information with defendant, then her testimony 'would be important to the defense.' No link in this chain is supported by any document in the possession of NBC or Ms. Mitchell, and Defendant's speculation is refuted by the facts." (pages 4-5)
The four Replies show, without any question, that Team Libby is on a "fishing expedition." Consider two examples. First, they claim that Matt Cooper has a "pro-Wilson bias." They offer no evidence. More, they ignore that Cooper twice was willing to go to jail to protect his sources, until Libby and then Rove gave him permission to reveal the details of their conversations.
Second, footnote 3 on the Miller Reply states, "Mr. Libby claims that 'Movants admit' they have 'documents showing that [he] and other officials talked to reporters about Mr. Wilson ... but never mentioned his wife ...' (Response at 7). Ms. Miller has made no such admission, and has not located any such documents."
Cooper's Reply addresses Team Libby's frequent claim of the "constitutional dimensions" of his case, specifically his need for using the subpoenas in such a wide-ranging manner. The Cooper document points out that Team Libby completely ignores the Amendment 1 issues involved in the case. The four documents combine to make a strong case for Judge Walton to quash the subpoenas, for a variety of reasons including protecting the integrity of a free press.
Time refers to Libby's demands as "speculative and absurd." They note that Team Libby's "farfetched conspiracy theory cannot justify Mr. Libby's subpoena(s)." I think they are right, and I am confident that Judge Walton will rule in their favor.