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Reporters' Information Sought
Leak Case Files Could Be Key to Libby Defense, Lawyers Say

By Carol D. Leonnig
Washington Post Staff Writer
Friday, January 27, 2006

Attorneys for Vice President Cheney's former top aide urged a court yesterday to force prosecutors to turn over all the information they obtained from reporters about their confidential conversations with Bush administration sources in the course of a two-year CIA leak investigation.

Attorneys for I. Lewis "Scooter" Libby said they must cast a wide net to learn about any conversations regarding CIA operative Valerie Plame, and that the information could be crucial to Libby's defense against perjury and obstruction charges. In court papers, the lawyers said they will probably subpoena reporters and officials later to thoroughly investigate how widely Plame's identity was known before her name appeared in the news media in July 2003.

Libby was indicted by Special Counsel Patrick J. Fitzgerald on five felony counts of lying to the FBI and a grand jury. The indictment asserted that Libby leaked information about Plame's CIA role to two reporters but pretended he had learned the information from Tim Russert, the Washington bureau chief of NBC News, and that he passed it along as unverified reporter chatter.

The defense's goal is to show that Libby was not intentionally lying when he testified that many journalists had known about Plame during the spring and summer of 2003, and that he believed he had learned about her from Russert. "There can be no information more material to the defense of a perjury case than information tending to show that the alleged false statements are, in fact, true or that they could be the result of mistake or confusion," the lawyers argued in their filing. "Libby is entitled to know what the government knows."

Fitzgerald began investigating in early 2004 whether administration officials broke the law and leaked information about Plame as retaliation. Her name and CIA role appeared in a July 2003 syndicated column by Robert D. Novak -- eight days after Plame's husband, former ambassador Joseph C. Wilson IV, publicly criticized the Bush administration's justification for waging war with Iraq.

The defense effort to delve deeper into Fitzgerald's investigation, if successful, could divulge the identities of some anonymous, high-level government sources whom reporters and news organizations have spent years and millions of dollars in legal fees protecting from public view. The defense strategy is expected to pull several high-profile Washington journalists into a legal battle over the First Amendment, many of them for a second time.

The court papers specifically asked U.S. District Judge Reggie B. Walton to have Fitzgerald turn over all documents showing knowledge by other reporters of Plame's CIA role or her husband's mission to investigate claims that Iraq was trying to obtain from Niger materials for a nuclear program, and any subpoenas or agreements with other reporters who provided information to the investigation. Fitzgerald has asserted that Libby is not entitled to information about all the reporters questioned in the investigation if the government does not expect to use their information or call them as witnesses in Libby's trial, the filings said.

But the court papers filed by Libby's team highlighted Bob Woodward, a Washington Post reporter and assistant managing editor, as a crucial witness who could provide exculpatory information that might help Libby avoid a conviction. Woodward revealed in November, a few weeks after Libby was indicted, that another administration source -- not Libby -- had told him in a "casual" and "offhand" way about Plame's CIA role. Woodward testified that this conversation took place before Libby is believed to have first provided information about Plame to Judith Miller, then a New York Times reporter.

Woodward, who has repeatedly said he has not been released to identify his source, declined to comment yesterday. Washington Post attorney Mary Ann Werner said the newspaper continues to consider its promises of anonymity to sources sacred -- and vital to some kinds of newsgathering.

"Protecting our confidential sources has been our highest priority throughout this investigation, and it remains our highest priority today," Werner said.

The court papers also mentioned an interest in questioning NBC News reporter Andrea Mitchell, who suggested in an October 2003 news program that it was "common knowledge" among some intelligence reporters that Plame worked at the CIA, and Washington Post reporter Walter Pincus, who allegedly learned about Plame from another unidentified source in 2003.

Charles Tobin, a media lawyer in Washington, said the move by Libby's defense was expected and is the result of Fitzgerald's aggressive insistence on deposing journalists and forcing them under threat of jail to reveal confidential sources.

"I think we could have expected that, when the prosecutor went on a fishing expedition, that the fish he caught would want to look back in the pail," Tobin said. "The more this case develops, the further we seem to be getting from the core issues of the indictment -- and more into the business of journalism and how news gets put out in this town."

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