By Carol D. Leonnig
Washington Post Staff Writer
Saturday, January 21, 2006
Attorneys for Vice President Cheney's former chief of staff told a federal court yesterday that they plan to subpoena several journalists and news organizations to obtain their notes and other information they consider useful in defending their client from perjury charges.
The plan for defending I. Lewis "Scooter" Libby is likely to substantially delay his trial and create another round of tense First Amendment battles over whether a court can compel reporters to turn over information about the confidential sources in Libby's criminal case.
Libby's attorneys acknowledged their intentions and the possible results in a status report that federal prosecutors and defense counsel jointly filed yesterday with U.S. District Court Judge Reggie B. Walton in anticipation of a Feb. 3 court hearing.
Special Counsel Patrick J. Fitzgerald's two-year investigation into whether administration officials knowingly disclosed the identity of CIA operative Valerie Plame led to Libby's indictment in October on charges that he lied to investigators and obstructed the probe. A crucial evidence-gathering tool in the case was Fitzgerald's successful effort to force a handful of journalists -- under threat of incarceration -- to testify under oath about their confidential conversations with Libby and other sources. Former New York Times reporter Judith Miller spent 85 days in jail before she agreed to comply.
Libby's two lead attorneys, William Jeffress Jr. and Theodore V. Wells Jr., declined to comment yesterday. A spokesman for Fitzgerald also declined to comment.
The papers filed yesterday do not spell out which reporters might be subpoenaed. But at least three -- Miller, NBC News Washington bureau chief Tim Russert and Time magazine's Matthew Cooper -- are expected to be key witnesses for the government. Fitzgerald is seeking to prove that Libby lied to the FBI and a grand jury about his confidential conversations with the journalists in the spring and summer of 2003.
Libby testified that he believed he first learned of Plame's role at the CIA from Russert in a July conversation, and later passed on the information to Miller and Cooper as unverified chatter from reporters.
Russert testified that he and Libby never discussed Plame in that conversation. Fitzgerald asserted that Libby first learned about Plame from administration officials, including Cheney, a month before talking to Russert. Miller and Cooper testified that Libby told them about Plame's CIA role but never mentioned learning the information from a reporter.
In yesterday's court papers, Libby's attorneys hinted at two key elements of their defense strategy. First, they signaled plans to independently investigate journalists involved in the case -- a move that legal experts said would seek to raise doubts about the accuracy of the reporters' memories and methods.
Second, defense attorneys are expected to delve into whether other administration officials mentioned Plame to reporters before Libby did, which would allow them to cast doubt on the prosecutor's assertions. Defense lawyers have said that Bob Woodward, a reporter and assistant managing editor at The Washington Post, helped their case when he revealed in November that another administration source, not Libby, told him about Plame's CIA role before Libby is believed to have first mentioned her to a reporter.
Charles Tobin, a longtime media lawyer, said he is not sure about the advantage Libby would gain by forcing reporters to testify again. But he said the move would continue to hurt journalists' ability to dig out information and educate the public.
"Sounds to me like deja vu all over again," he said. "We just finished with one fishing expedition, and we're about to launch into another one. When is this going to stop? At some point, the court needs to let the reporters get back to their work, and the lawyers need to focus on the facts in their case."
The court filings also make clear what several sources close to the case have been saying for weeks: that Fitzgerald has been occupied with the Libby case and has not had much time to focus on a decision regarding possible charges against the other administration official embroiled in the investigation: White House Deputy Chief of Staff Karl Rove.
For the past two months, the special counsel's office has been busy providing classified and declassified documents to Libby's defense attorneys and trying to iron out pretrial disputes over whether the prosecutor is holding back information to which the defense is entitled.
Fitzgerald declined to comment when asked yesterday in Chicago whether Rove remains, as he was in December, under investigation for possibly misleading investigators about his conversations about Plame with Time's Cooper.
But a person close to Rove said Fitzgerald so far this year has not indicated any change in Rove's status. Rove expects to hear a final decision from Fitzgerald soon and has told friends he is optimistic that he will be cleared.
Still, another person close to Rove said it was not a good sign that Fitzgerald has not already cleared President Bush's chief political adviser. Rove, this person said, has worked under the assumption that Fitzgerald is largely finished with his investigation and, because the prosecutor is sensitive to the political liability of a possible indictment hanging over the head of Rove, would publicly clear him quickly if he did not have enough evidence to charge him.
Rove, who reemerged on the political scene yesterday with a fiery speech to the Republican National Committee, has been assuming an increasingly public role at the White House, which suggested to other aides that he was confident of avoiding indictment. Still, White House aides remain largely in the dark about the legal fight and concerned that an indictment of Rove in the current political atmosphere would be a big blow to Bush just as the White House is gearing up its 2006 agenda.
Staff writer Jim VandeHei contributed to this report.