November 16, 2005

"A government investigation hung completely on testimony from journalists, with journalists turned into witnesses ... a scary notion."

Have you really thought through what Scooter Libby's defense is going to be like for the press?
Lawyers for I. Lewis Libby Jr., the former White House official indicted on perjury charges, plan to seek testimony from journalists beyond those cited in the indictment and will probably challenge government agreements limiting their grand jury testimony, people involved in the case said Tuesday.

"That's clearly going to be part of the strategy - to get access to all the relevant records and determine what did the media really know," said a lawyer close to the defense who spoke on condition of anonymity....

In interviews, lawyers close to the case made clear that the defense team plans to pursue aggressively access to reporters' notes beyond the material cited in the indictment and plans to go to the trial judge, Reggie B. Walton of United States District Court, to compel disclosure as one of their first steps....

The prospect of another legal battle over access to reporters' records "could be worse for the media" than the Miller showdown, said Lucy Dalglish, head of the Reporters Committee for Freedom of the Press. "You now have a situation where you have a government investigation hung completely on testimony from journalists, with journalists turned into witnesses, and that is a scary notion."

Ms. Dalglish said that unlike the special prosecutor, Patrick J. Fitzgerald, who was restricted partly by Justice Department regulations on subpoenaing reporters' notes, Mr. Libby's defense team will not be bound by those same rules.

"This is a very unsettling case, and it could take years in the courts to resolve," she said.


Jacques Cuze said...

"A government investigation hung completely on testimony from journalists, with journalists turned into witnesses ... a scary notion."

My understanding of the indictment is just the reverse. There are notebooks, including Libby's own notes, and lots and lots of government witnesses.

Dalglish is about the only person apart from Typhoid Judy herself to keep pushing this as a big confidentiality case.

Ann Althouse said...

Quxxo: This is an article about Libby's defense -- to which he has a constitutional right. Do you not care about the rights of the accused when you perceive a political enemy?

Jacques Cuze said...

Well I am neither journalist nor lawyer, so I don't understand all of the nuances, but it seems that Dalglish is claiming that reporters and their materials can never be used in court.

In this case though, it seems the reporters are not testifying what a source says, but they are the source themselves. The reporters are the witnesses to the alleged crime. The reporters themselves were the object of the crime.

From TV shows, I gather that clients are not supposed to tell their lawyers if they are guilty. Because lawyers cannot themselves lie to the court or something. And presumably lawyers cannot help clients plan or commit or coverup a crime. (T/F?)

MDs and Psychs and their clients have confidential relationships only to the extent that their client is posing a risk to anyone. And court orders can and frequently do breach therapeutic relationships in family court all of the time.

Does keeping a reporter from testifying about a crime the reporter witnessed hurt the freedom of the press? I dunno.

If Libby can find evidence that the reporter lied, I say more power to him.

And Libby's defense team is not the gov't. Why is turning over notes made about Libby to Libby's team (presumably under seal) an injury to the first amendment?

Now if they ask for material far beyond the material cited in the indictment, I would think the court would do as I think it does in other cases, have semi, and semi-demi court cases to deal with the various pieces of information and let the judge determine what is useful and what is not.

So just because Dalglish says it is a problem, based on her experience as a journalist's lobbyist and not as a con law prof, I am not prepared to worry just yet about the imminent collapse of the first amendment.

Jacques Cuze said...

Object of the crime? Maybe the target of the crime.

Bruce Hayden said...

I am probably a bit cynical here, but I see no reason that the reporters shouldn't provide evidence and even testify. Obviously, a couple have to anyway - Russert, Miller, et al.

But this is the opposite of the normal press shield situation (which doesn't apparently apply at the federal level any way). There, the state is typically trying to make a case using information that the press has. Here, the defense is trying to defend against the state - which has the information already.

In other words, a press shield is unlikely to be effective in preventing a defendant from acquiring information needed to defend himself. His rights to a fair trial, etc. would most likely prevail. After all, which is more important, someone's right not to go to jail if innocent, or the press' right to confidentiality?

Of course, it is unclear how much of this is legal maneuvering and how much of this is building a legitimate defense. The Libby lawyers may just be pushing this to put pressure on Fitzgerald, etc. We shall see.

Ross said...

I have a hard time seeing how this case could be worse for the media -- beyond the fact that it will drag on and on.

John Harvard said...

I hate to say I told you so, but I predicted exactly this chain of events last month (

Any victory the MSM achieves over the administration in this case will be Pyrrhic and fleeting. Libby will be pardoned on 1/19/09, and the precedent will be set for both prosecution and defense to rampage through press organizations like stampeding rhinos.

But enough Schadenfreude.

Ann, since this case is the poster child for a press-shield law or rule, do you think it's instructive to compare & contrast to rape shield laws here?


vbspurs said...

Libby will be pardoned on 1/19/09

Ahh, the spectre of Marc Rich raises its ugly head.

In this case, there's no Linda Tripp to fire though, on Dubya's last day in office.

Still, there's time.


sonicfrog said...

Do the Woodward revelations give both / either Libby and Fitz a way out, assuming either wants one???

knoxgirl said...

Victoria: good catch on the Mark Rich thing.

I see a similar hypocrisy in the Democrats' utter disinterest in the documents Sandy Berger stole/destroyed from the Archives. Seems they only care about who's committing the crime, not the crime itself...

wildaboutharrie said...

"Seems they only care about who's committing the crime, not the crime itself..."

Unlike Senator "perjury technicality" Hutchunson, for example? Or Karl "not involved" Rove? There's plenty o' hypocricy to go around, it seems to me.

wildaboutharrie said...

sonicfrog, I can't see how...Fitzgerald will have a different timeline of events, but I can't see an "out" for anyone.

knoxgirl said...

Seems like the investigation came up short on Rove, right? If they found he did anything wrong, I, for one, want him prosecuted.

But outing Plame, who did a glamorous spread in VANITY FAIR at the first possible opportunity, fer crissakes, seems to me small potatoes compared to Sandy Berger's transgressions, which the media, and Democrats, basically ignored.

Brando said...

Seems like the investigation came up short on Rove, right?

No, the jury is still out on that one. Literally.

ATMX said...

Is there any case law dealing with perjury charges stemming from a case where the prosecution makes you think you might be guilty of a crime and that you can't readily ascertain whether that is the case. Classification of whatever status Plame had seems to have created a scenario where a perjury trap could be set by a prosecutor who has a weak or nonexistent case.

wildaboutharrie said...

ATMX, interesting, but I don't see how. Fitzgerald had to determine if Libby knew Plame's status when he disclosed it. If he lied during that process of discovery, he can't claim he was entrapped.

wildaboutharrie said...

What I'm wondering is, since this was based on a decision from the early 1970s, why is this happening now? (Or have there been other high-profile cases like this, and I missed them?)

What's disconcerting is there didn't seem to be a question of degree. When this reached the appeals stage, it was known that Fitzgerald was looking at perjury and not the original leak, but that didn't seem to have an impact on the decision of whether or not to hear the appeal. It seemed like the message was that reporters are the same as everyone else in every case.

Clyde said...

T'would be poetic justice for the scheming journalists to be hoist on their own petards. You'll see no crocodile tears from me if it happens.

wildaboutharrie said...

Oh, sonicfrog,now I see what you meant. I'm slow.