(CBS/AP) Lawyers for I. Lewis "Scooter" Libby have urged a federal judge to force several media organizations to turn over e-mails, drafts of news articles and reporters' notes they say the former top White House aide needs to receive a fair trial in the CIA leak case.
In a 45-page filing on Monday, Libby's lawyers said reporters have "no right, under the Constitution or the common law, to deprive Mr. Libby of evidence that will help establish his innocence at trial."
The key to Libby's defense is whose memory is correct, Libby's or three reporters who talked with him in June and July 2003. His lawyers said they need the reporters' records to use in cross-examining them and government officials, who, the lawyers said, may be "shading" the truth to protect themselves or their bosses.
Lawyers for NBC News, The New York Times and Time Inc. want U.S. District Judge Reggie B. Walton to limit Libby's subpoenas. The media groups say the subpoenas are so broad that they threaten the integrity of their news-gathering operations by targeting all of their employees, not just the three reporters involved in the case.
Generally, Libby's subpoenas seek all documents prepared or received by any employee of NBC News, The New York Times and Time that refer to Plame and her husband before Novak's column was published.
The subpoenas also seek drafts of articles, even those that were not published; communications between reporters and editors, and e-mail exchanges among any reporters about Plame or Wilson.
The defense attorneys said in Monday's filing that reporters' notes may be useful to Libby's case if they do not mention Plame. Libby argues that Plame was a "peripheral" issue and that he was focused on attacking her husband's charges on the merits, not smearing him.
This is pretty much a fishing expedition among Libby's lawyers to gather every scrap of media paper they can regarding the Plame case. This interesting aspect of this case is that it conflicts Libby's right to a fair trial, with the right of freedom of the press. No secondary or third sources are going to reveal important information on stories, if they feel that the reporter's notes will be used in criminal trials where their anomymity is exposed. Consider what Libby's lawyers are demanding:
Libby's lawyers want uncensored copies of [New York Times reporter Judith] Miller's notes to use to cross-examine her about discrepancies in her public statements and writings about the case. Miller spent 85 days in jail last year, refusing to name Libby as her source.
The defense team also wants NBC reporter Andrea Mitchell's records because the lawyers believe she told [NBC's reporter Tim] Russert about Plame's work at the CIA, and that Russert, in turn, told Libby.
Libby's lawyers want records generated by [Time Magazine reporter Matt] Cooper's colleagues because he was part of a team of six reporters who worked on the dispute between Wilson and the White House over the prewar intelligence.
I'm not sure how Judge Walton will rule on this issue. I can possibly see the three reporters involved, to turn over their notes regarding the Plame affair, but not every scrap of paper from anyone whose name is linked to Valerie Plame. And even in this situation of having Miller, Cooper, and Russert turn over all of their notes, could still cause consternation among future anonymous sources, who may worry that their own identities would be revealed in criminal trials.
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