January 30, 2006
Libby's Defense Goes after Antique Media ReportersBy Clarice Feldman
Last week, Lewis Libby filed a long—anticipated motion to compel discovery of reporters and organizations, making a significant strategic move in the perjury and obstruction case brought against him by the Special Prosecutor.
As anticipated, he seeks broad discovery of the reporters and news organizations which covered the fake charges of Joseph C. Wilson IV and the claimed Administration response to it. As we know, Wilson's well—hyped story, of a White House deliberately ignoring what he claimed to have found in Africa, was not true and the Senate Select Commission on Intelligence made that clear. As the indictment itself establishes, there was no concerted attempt to retaliate against Wilson or his wife.
The indictment centers on three conversations, one each with Tim Russert of NBC, Matthew Cooper of Time and Judith Miller then of The New York Times. In sum here is how the Special Prosecutor describes the difference he has with Libby's testimony about these conversations and the reporters' versions which the grand jury credited.
Russert The Prosecutor alleges that Libby falsely claimed (a)that on July 10, 2003 Russert told Libby that Plame worked for the CIA and all the reporters knew this and (b) that Libby was surprised by what Russert had told him;
Cooper The Prosecutor alleges that Libby falsely claimed that on July 12, 2003 he told Cooper that HE had heard that Plame worked for the CIA from other reporters though he didn't know if that information was true, but , in fact, he had only said he'd heard it and had not made further qualification of the statement.
Miller The Prosecutor alleges that Libby claimed that on July 12, 2003 while discussing Plame with Miller he told her that he'd heard that Plame worked for the CIA from other reporters but didn't know if that was true. Again the charge is that Libby had not offered these qualifications to her about the source of his knowledge.
Nothing in the indictment accuses Libby of violating any law relating to the handling of classified information. Nothing alleges, as the news reports had sensationally reported (based apparently on Wilson's word), that Plame was a covert agent in July 2004. The Prosecutor, however, does allege that her employment by the CIA 'was classified and not common knowledge outside the intelligence community.'
The indictment, by treating the small differences in the recollections of the reporters and Libby as evidence of criminality on Libby's behalf, and by overstating substantially how well—kept a secret Plame's CIA employment was, left the door wide open for the discovery requests Libby has made. The Prosecutor's statement at the press conference that Libby was the first in the chain of gossip can only be fully refuted by granting Libby the discovery he seeks, although others like Bob Woodward have already poked holes in that charge.
Libby seeks all inculpatory and exculpatory information in the Government's possession under existing precedents and Rule 16 of the Federal Rules of Criminal Procedure. In particular, Libby charges that since the indictment put at issue what the reporters knew about Plame's status. he has the right to know which reporters knew her identity, when and from whom they learned this information. He asserts, I think with good cause, that he needs this not only to refute the allegations against him—i.e., did Russert know this before he spoke to Libby?—but
In sum, he is arguing that his recollection of these disputed conversations may be truthful, but they may also be the result of mistake or confusion—that he may have confused conversations with other reporters for those he had with these three. He also contends that he may have learned of the reporters' knowledge from other government officials who related such conversations with him.
Libby seeks all documents and information the government has reflecting knowledge prior to July 14, 2003 of Plame's employment by any news reporter or employee of a news organization or her role in connection with Wilson's trip to Niger. More significantly he seeks discovery of any communication prior to July 14, 2003, between reporters and 'a government official, another news reporter, an employee of a news organization' or any other person in which Plame was mentioned. Libby also demands
Libby specifically observes here that the government is withholding subpoenas and correspondence relating to reporters not referenced in the indictment.
Assuming as I do that the Prosecutor has clearly opened the door to these issues and the discovery requests will in large part be granted, how is this likely to affect the three reporters and others in other news organizations?
Very substantially, and in ways that could and should have been anticipated at the time the press demanded this intrusive and silly investigation of the non—outing of a non—covert agent.
Tom Maguire has collected Mr. Russert's various coy explanations of his testimony and his conversation with Libby:
From the NBC press release following his testimony:
Does he specifically deny telling Libby anything about Wilson's wife working at the CIA? No. This could simply be an artful dodge around the fact that he didn't know her name or her specific assignment there.
On Meet the Press, he again seemed as coy:
On his own show on CNBC, Russert still evades the basic issue:
Since it was clear the question was did he know Wilson's wife worked at the CIA and did he share that information with Libby, his insistence that he didn't know who Plame was feeds the suspicion that he was being less than forthcoming.
This suspicion is made stronger by the fact that his colleague Andrea Mitchell said she did know Wilson's wife worked at the CIA though she had no clear knowledge of her exact position. She, in fact, said it was "widely known among those of us who cover the intelligence community' that Joe Wilson's wife was at the CIA.
If it was 'widely known' it would be natural to assume that once Wilson's op—ed was published and the matter became the topic of the day, she'd have shared that with her boss, Russert, isn't it? And her many efforts to distance herself from her earlier admission since then have only added to the suspicion that she did share this information with him and has not been forthcoming about how and when she came to know this, who else knew, and whether and when she shared that information with Russert.
She hasn't even a consistent story about whether she was questioned by the Special Prosecutor about her 'widely known' story. At one point she said she had spoken to investigators and yet later she denied having any contact with Fitzgerald's office. Since the Special Prosecutor alleges in the indictment that Plame's employment was not widely known and a major broadcasting figure said otherwise well before the issuance of the indictment, it would be fair to conclude the indictment statement could only be true if the Prosecution deliberately avoided pursuing the lead Andrea Mitchell threw out or that she somehow persuaded him that she hadn't said what she clearly had... even though no one else seems to find her backstroke convincing.
In any event, it is impossible for me to see how Libby's claim that it is very material to his defense to explore whether Russert knew this information from whatever source at the time of the conversation cited in the indictment can be contested. If he did know, it is as likely that Russert did say what Libby reported he had and simply forgot it.
Similar arguments are made respecting the testimony of Cooper and Miller. In Cooper's case he wrote and made public statements advancing 'the idea that the Administration pursued a coordinated effort" to punish Mr. Wilson by leaking information about his wife. (See citations pp. 18—19 of the Motion).
Certainly, Mr. Libby argues (convincingly, I think) that a witness ——Cooper——who believes the defendant was involved in a 'coordinated smear campaign' has expressed a bias against the defendant. But Libby also argues, again persuasively, that to address possible bias, he
If Cooper was reporting and publishing this prior to his grand jury testimony and yet upon full discovery cannot provide any evidence for those charges, isn't that relevant to a determination whose version of the conversation should be believed? If it isn't, what is?
How concerned is the media about this development and is the concern warranted? Very concerned and with very good reason.
The Court in Miller said there was no First Amendment right for a reporter to refuse to provide evidence and there is a Constitutional right for a defendant to obtain the evidence necessary to defend against a criminal charge. And the press acknowledges that this case will place them all in a difficult position of providing the testimonial evidence or facing the consequences.
There are other interesting aspects of the motion.
First, Libby makes clear this is just the beginning of what is likely to be a series of expansive discovery requests.
Secondly, Libby seems to be seeking evidence relating to Fitzgerald's' allegation that Plame's employment status was 'classified,' citing in particular that Bob Woodward described his source's disclosure to him that Plame worked at the CIA as 'casual and offhand' and the reference did not appear 'either classified or sensitive.'
Finally, Libby requests all subpoenas and agreements to limit the scope of documents or testimony by reporters. It is clear that there were such agreements. I have argued that they prevented a full exploration of the facts and made it more likely than not that the grand jury findings would be skewed. I think this request will be granted, and when it is many more members of the press will in Leggett's words join the file of 'mechanical ducks in the arcade.'