WASHINGTON – A federal judge on Friday ordered Time magazine to turn over documents for a former White House aide to use in his defense to perjury and other charges in the CIA leak case.
The order by U.S. District Reggie B. Walton also said the New York Times might have to turn over some information but reduced the scope of documents the newspaper and other news organizations would have to provide to lawyers for the defendant, former top vice presidential aide I. Lewis "Scooter" Libby.
Citing a lack of relevancy, Walton said that Judith Miller, a former Times reporter, doesn't have to provide two notebooks, her phone records or appointment calendars to lawyers for Libby, Vice President Dick Cheney's former chief of staff.
Walton also said NBC News does not have to provide Libby's defense team with one page of undated notes taken by correspondent Andrea Mitchell because she is unlikely to testify at Libby's perjury trial, which is set for January.
In granting in part and denying in part Libby's subpoenas for the media's records, Walton ruled that reporters do not have a right to refuse to provide notes, drafts of articles or other information in a criminal case.
"The First Amendment does not protect a news reporter or that reporter's news organization from producing documents ... in a criminal case," Walton wrote in a 40-page ruling.
Walton said Time magazine must provide Libby's lawyers with drafts of first-person stories that reporter Matthew Cooper wrote about his conversations with Libby because the judge said he noticed inconsistencies between them.
All of the news organizations had asked Walton to review the materials sought by Libby — including e-mails, drafts of articles and reporters' notes — in hopes of convincing him that they were not relevant and that the defense was on a "fishing expedition."
During that review, Walton said, he found "a slight alteration between the several drafts of the articles" Cooper wrote about his conversations with Libby and the reporter's first-person account of his testimony before a federal grand jury.
"This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions," Walton wrote.
It is unclear from Walton's ruling what those inconsistencies are.
Libby, 55, is charged with perjury and obstruction of justice. He is accused of lying to the FBI and a federal grand jury about how he learned about CIA officer Valerie Plame and what he subsequently told reporters about her.
Syndicated columnist Robert Novak named Plame in a column on July 14, 2003, eight days after her husband, former U.S. Ambassador Joseph Wilson, alleged in an opinion piece in The New York Times that the administration had twisted prewar intelligence on Iraq to justify going to war.
The CIA sent Wilson to Niger in early 2002 to determine whether there was any truth to reports that Saddam Hussein's government had tried to buy yellowcake uranium from Niger to make a nuclear weapon. Wilson discounted the reports. But the allegation nevertheless wound up in President Bush's 2003 State of the Union address.
Libby's indictment grew out of conversations he had with Cooper, Miller and NBC's Tim Russert in June and July 2003, a two-month period in which the White House, according to Special Counsel Patrick Fitzgerald, was mounting a campaign to undermine Wilson's charges about the Iraq war.
The key to Libby's defense is whose memory is correct — Libby's or the three reporters.
At trial, Libby's lawyers will try to raise questions about the credibility of Miller, Russert and Cooper and whether they could have learned about Plame and her CIA connection from other reporters at their respective news organizations or government officials besides Libby.
"These three news reporters did not simply report on alleged criminal activity, but rather they were personally involved in the conversations with the defendant that form the predicate for several charges in the indictment," Walton wrote. "Their testimony is critical to the government's case, and challenging it will likely be critical to the defense."
Walton also said he won't require the Times to immediately produce materials it has regarding Wilson or a transcript of an interview the paper's reporters did with Miller in a review of her role in the Libby matter. He said he will wait until trial to decide whether the materials are relevant to Libby's defense.
The judge insisted that his narrowing of Libby's subpoenas will not have a "chilling effect" on the press because his ruling "does not swing open the gates for either the government or a criminal defendant to learn the identity of all sources of a reporter or to gain access to all information a reporter has amassed."