The prosecutor in the CIA leak case has sparked another fight with the news media, this time over access to material that prosecutors will turn over to attorneys for I. Lewis "Scooter" Libby.
Special Counsel Patrick J. Fitzgerald is seeking a protective court order that would bar Libby and his legal team from publicly disclosing "all materials produced by the government."
Dow Jones & Co., the publisher of the Wall Street Journal, went to court yesterday to fight the proposal.
"As the Supreme Court has recognized," Dow Jones said in court papers, " 'The criminal justice system exists in a larger context of a government ultimately of the people, who wish to be informed about happenings in the criminal justice system.' "
U.S. District Judge Reggie B. Walton has not yet ruled.
Dow Jones cited a case in which a judge entered a similar broadly worded protective order that was subsequently overturned by a federal appeals court as unjustified.
"The fact that . . . this is a criminal case heightens the public interest in disclosure," Dow Jones argued in court papers. "The need for openness is heightened in cases such as this one, which involve issues of great national importance that have already generated considerable media coverage."
The news organization said any asserted need for secrecy in the Libby case is further undercut by the fact that Fitzgerald conducted a news conference to discuss the facts in the case.
"Moreover, many of the likely witnesses in the case have already disclosed the substance of their grand jury testimony to the public," lawyers for Dow Jones argued.
Dow Jones referred to first-person accounts of testimony in the investigation by Time magazine reporter Matthew Cooper, then-New York Times reporter Judith Miller, NBC reporter Tim Russert and Washington Post reporter Walter Pincus.
Denying a blanket protective order does not necessarily mean that documents produced by prosecutors will be publicly disclosed, nor does it prevent prosecutors or defense lawyers from seeking more limited protection regarding documents "for which there is a legitimate need for secrecy," Dow Jones said.