Time Ordered to Give Internal Documents to Libby

Time magazine must turn over some internal documents to former vice presidential aide I. Lewis “Scooter” Libby’s attorneys because the evidence could help his defense against perjury and obstruction-of-justice charges in the CIA leak case, a federal judge ruled yesterday.

U.S. District Judge Reggie B. Walton said Libby is entitled to drafts of an article by Time reporter Matthew Cooper and accompanying intraoffice correspondence because they may help Libby challenge Cooper’s testimony when he is called as a witness by Special Counsel Patrick J. Fitzgerald.

In granting Libby’s request for the Time documents, Walton delivered the latest in a string of court defeats for media efforts to shield news-gathering activities from the legal process.

Just as previous courts had ruled that reporters must testify to a grand jury about their confidential sources, Walton rejected claims by Time and other news organizations that the First Amendment or other federal law protects their internal documents from a defendant’s pretrial subpoenas.

Walton’s 40-page opinion noted that, in the CIA leak case, reporters “were not simply reporting on criminal activity; rather their conversations with the defendant form the predicate for several charges in the indictment.”

Walton also said he might order the New York Times to surrender additional documents, depending on events at trial. But he rejected all requests for documents from NBC News and its journalists, saying that, even though they were not constitutionally protected, they were not relevant to the defense.

Libby is the only Bush administration official under indictment in the scandal over the White House’s alleged leaking of CIA officer Valerie Plame’s identity. Plame’s husband, former ambassador Joseph C. Wilson IV, accused officials of “outing” his wife as retaliation for his outspoken criticism of the administration’s inaccurate claims, before the Iraq war, that Saddam Hussein’s government was developing nuclear weapons.

Under certain circumstances, leaking a covert CIA operative’s identity is a federal crime. Libby is not accused of that, but he is accused of lying to Fitzgerald’s investigators and a grand jury about when he first learned of Plame’s CIA affiliation.

Fitzgerald has said — based in part on the testimony of Cooper and other prominent Washington journalists — that Libby knew about it well before it was first publicly mentioned by columnist Robert D. Novak in July 2003; Libby testified to a grand jury that he first heard the information from reporters.

Libby’s defense team had issued subpoenas to Time, the New York Times and NBC News — as well as individual subpoenas to Cooper, former Times reporter Judith Miller and NBC News correspondent Andrea Mitchell — seeking documents that, according to the defense, would help show that Libby’s version of events was true.

The Cooper documents include unpublished drafts of his July 25, 2005, article recounting Cooper’s grand jury testimony and giving his version of the conversation with Libby upon which some of the indictment is based.

Time had argued there was no need to hand over the drafts, because they were essentially the same as the published article. But after reading them, Walton said, he “discerns a slight alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper” as a witness.

Because of pretrial confidentiality rules, Walton wrote, “the Court has purposefully excluded what the alteration was.”

Ty Trippet, a spokesman for Time magazine, would not comment on Walton’s ruling.

The judge, adopting a legal test first developed by the Supreme Court to decide whether President Richard M. Nixon should have to turn over his Watergate tapes to a special prosecutor, ruled that most of the items Libby sought were not relevant to the case, or would not be admissible in court.

Walton repeatedly used the phrase “fishing expedition” to explain why he rejected some of the Libby team’s requests.

These included subpoenas for handwritten notes belonging to Miller and Mitchell, Miller’s appointment calendar, and telephone records and NBC internal e-mails about “Meet the Press” host Tim Russert .

Walton did find relevant Libby’s request for New York Times documents related to other topics, including Miller’s requests to her editors to write about Wilson’s trip to Niger in 2002, during which he investigated Iraq’s purported efforts to buy uranium from that country.

But Walton said he would wait until Miller’s testimony at trial to decide whether those documents were admissible and would have to be turned over to the defense. He also said he might reconsider his ruling on some of Mitchell’s documents in what he said was the unlikely event she testifies at the trial.

NBC would not comment on the ruling, but Catherine Mathis, a spokeswoman for the New York Times, said, “We are gratified that Judge Walton did not order the Times to produce any editorial materials to the defendant.”

© 2006 The Washington Post Company