Last week, Lewis Libby filed a long—anticipated motion to compel discovery of reporters and organizations, making a significant strategic move in the perjury and obstruction case brought against him by the Special  Prosecutor.

As anticipated, he seeks broad discovery of the reporters and news organizations which covered the fake charges of Joseph C. Wilson IV and the claimed Administration response to it. As we know, Wilson's well—hyped story, of a White House deliberately ignoring what he claimed to have found in Africa, was not true and the Senate Select Commission on Intelligence made that clear. As the indictment itself establishes, there was no concerted attempt to retaliate against Wilson or his wife.

The indictment centers on three conversations, one each with Tim Russert of NBC, Matthew Cooper of Time and Judith Miller then of The New York Times. In sum here is how the Special Prosecutor describes the difference he has with Libby's testimony about these conversations and the reporters' versions which the grand jury credited.

Russert The Prosecutor  alleges that Libby falsely claimed (a)that on July 10, 2003 Russert told Libby that Plame worked for the CIA and all the reporters knew this and (b) that Libby was surprised by what Russert had told him;

Cooper The Prosecutor alleges that Libby falsely claimed that on July 12, 2003 he told Cooper that HE had heard that Plame worked for the CIA from other reporters though he didn't know if that information was true, but , in fact, he had only said he'd heard it and had not made further qualification of the statement.

Miller The Prosecutor alleges that Libby claimed that on July 12, 2003 while discussing Plame with Miller he told her that he'd heard that Plame worked for the CIA from other reporters but didn't know if that was true. Again the charge is that Libby had not offered these qualifications to her about the source of his knowledge.

Nothing in the indictment accuses Libby of violating any law relating to the handling of classified information. Nothing alleges, as the news reports had sensationally reported (based apparently on Wilson's word), that Plame was a covert agent in July 2004. The Prosecutor, however, does allege that her employment by the CIA 'was classified and not common knowledge outside the intelligence community.' 

The indictment, by treating the small differences in the recollections of the reporters and Libby as evidence of criminality on Libby's behalf, and by overstating substantially how well—kept a secret Plame's CIA employment was, left the door wide open for the discovery requests Libby has made. The Prosecutor's statement at the press conference that Libby was the first in the chain of gossip can only be  fully refuted by granting Libby the discovery he seeks, although others like Bob Woodward have already poked holes in that charge. 

Libby seeks all inculpatory and exculpatory information in the Government's possession under existing precedents and Rule 16 of the Federal Rules of Criminal Procedure. In particular, Libby charges that since the indictment put at issue what the reporters knew about Plame's status. he has the right to know which reporters knew her identity, when and from whom they learned this information. He asserts, I think with good cause, that he needs this not only to refute the allegations against him—i.e., did Russert know this before he spoke to Libby?—but

'for exploring the ways in which information about [Plame's] employment status circulated in Washington or reached Libby.' 

In sum, he is arguing that his recollection of these disputed conversations may be truthful, but they may also be the result of mistake or confusion—that he may have confused conversations with other reporters for those he had with these three. He also contends that he may have learned of the reporters' knowledge from other government officials who related such conversations with him. 

Libby seeks all documents and information the government has reflecting knowledge prior to July 14, 2003 of Plame's employment by any news reporter or employee of a news organization or her role in connection with Wilson's trip to Niger. More significantly he seeks discovery of any communication prior to July 14, 2003, between reporters and 'a government official, another news reporter, an employee of a news organization' or  any other person in which Plame was mentioned. Libby also demands

'Copies of subpoenas issued to reporters and news organizations during the grand jury investigation and any agreements by the FBI or Office of Special Counsel to limit the scope of the information supplied pursuant to those subpoenas."

Libby specifically observes here that the government is withholding subpoenas and correspondence relating to reporters not referenced in the indictment.

Assuming as I do that the Prosecutor has clearly opened the door to these issues and the discovery requests will in large part be granted, how is this likely to affect the three reporters and others in other news organizations?

Very substantially, and in ways that could and should have been anticipated at the time the press demanded this intrusive and silly investigation of the non—outing of a non—covert agent.
 
Let's just take the example of Tim Russert.

Tom Maguire has collected Mr. Russert's various coy explanations of his testimony and his conversation with Libby:

From the NBC press release following his testimony:

During the interview, Mr. Russert was asked limited questions by Special Prosecutor Patrick Fitzgerald about a telephone conversation initiated by Lewis "Scooter" Libby, Vice President Cheney's Chief of Staff, in early July of last year. Mr. Russert told the Special Prosecutor that, at the time of that conversation, he did not know Ms. Plame's name or that she was a CIA operative and that he did not provide that information to Mr. Libby. Mr. Russert said that he first learned Ms. Plame's name and her role at the CIA when he read a column written by Robert Novak later that month.

Does he specifically deny telling Libby anything about Wilson's wife working at the CIA? No. This could simply be an artful dodge around the fact that he didn't know her name or her specific assignment there.

On Meet the Press, he again seemed as coy:

TIM RUSSERT, HOST, MSNBC's "MEET THE PRESS": The answer was no. And whether I knew Valerie Plame's name or where she worked as a CIA operative and the answer was  no. And that was the extent of it.

WILLIAMS:  He [Libby] called to complain about some programming..something that was said or covered on one of our cable news programs...

RUSSERT:  Correct.  And that was the extent of it.  I immediately called the president of NBC News and shared the complaint, which is why it was memorable in my mind.  But to the notion that I was somehow the recipient of the leak, which just wasn't the case, or that I had shared information, which I did not know.  The first time I had heard of Valerie Plame and the fact that she was a CIA operative was when I read Robert Novak's column the following Monday.

On his own show on CNBC, Russert still evades the basic issue:

RUSSERT: And I am Washington bureau chief, so I was a manager, in effect. He [Lewis Libby] called me to complain about something that he had been watching on MSNBC, and he was rather agitated about it and wanted to make his views known, as a viewer, and I duly noted it and said, `You know, you should call the correspondent directly, or you could call Eric Sorenson'——who was then the head of MSNBC——`or Neal Shapiro'——then head of NBC News——`or I'd be glad to share this information.' I gave him some phone numbers, I believe. He then says that I shared with him the name of Valerie Plame and that she worked for the CIA. I didn't know who Valerie Plame was; I——therefore I didn't know that she could have worked for the CIA. I wish I had. I——Mr. Libby didn't share it with me, although he obviously had confirmed it with other reporters, and to this I wonder why.

Since it was clear the question was did he  know Wilson's wife worked at the CIA and did he share that information with Libby, his insistence that he didn't know who Plame was feeds the suspicion that he was being less than forthcoming.

This suspicion is made stronger by the fact that his colleague Andrea Mitchell said she did know  Wilson's wife  worked at the CIA though she had no clear knowledge of her exact position. She, in fact, said it was "widely known among those of us who cover the intelligence community' that Joe Wilson's wife was at the CIA.  

If it was 'widely known' it would be natural to assume that once Wilson's op—ed was published and the matter became the topic of the day, she'd have shared that with her boss, Russert, isn't it? And her many efforts to distance herself from her earlier admission since then have only added to the suspicion that she did share this information with him and has not been forthcoming about how and when she came to know this, who else knew, and whether and when she shared that information with Russert. 

She hasn't even a consistent story about whether she was questioned by the Special Prosecutor about her 'widely known' story. At one point she said she had spoken to investigators and yet later she denied having any contact with Fitzgerald's office. Since the Special Prosecutor alleges in the indictment that Plame's employment was not widely known and a major broadcasting figure said otherwise well before the issuance of the indictment, it would be fair to conclude the indictment statement could only be true if the Prosecution deliberately avoided pursuing the lead Andrea Mitchell threw out or that she somehow persuaded him that she hadn't said what she clearly had... even though no one else seems to find her backstroke convincing.

In any event, it is impossible for me to see how Libby's claim that it is very material to his defense to explore whether Russert knew this information from whatever source at the time of the conversation cited in the indictment can be contested. If he did know, it is as likely that Russert did say what Libby reported he had and simply forgot it.

Similar arguments are made respecting the testimony of Cooper and Miller. In Cooper's case he wrote and made public statements advancing 'the idea that the Administration pursued a coordinated effort" to punish Mr. Wilson by leaking information about his wife. (See   citations pp. 18—19 of the Motion).

Certainly, Mr. Libby argues (convincingly, I think) that a witness ——Cooper——who believes the defendant was involved in a 'coordinated smear campaign' has expressed a bias against the defendant. But Libby also argues, again persuasively, that to address possible bias, he

'must first investigate which persons disclosed Mr. Wilson's identity, determine their motivations, and finally assess whether such evidence can reasonably be construed to support accusations of a smear campaign.'

If Cooper was reporting and publishing this prior to his grand jury testimony and yet upon full discovery cannot provide any evidence for those charges, isn't that relevant to a determination whose version of the conversation should be believed? If it isn't, what is?

How concerned is the media about this development and is the concern warranted?  Very concerned and with very good reason.

The Court in Miller said there was no First Amendment right for a reporter to refuse to provide evidence and there is a Constitutional right for a defendant to  obtain the evidence necessary to defend against a criminal charge. And the press acknowledges that this case will place them all in a difficult position of providing the testimonial evidence or facing the consequences. 

Where does this patchwork of reporter—source relationships and philosophies leave the profession? If Libby's case goes to trial, with journalists as unwilling star witnesses, the answer is likely to be a messy one. What would happen to a carefully negotiated waiver when a journalist got on the stand? 

"That's the $50,000 question," says David Schulz, one of the media lawyers representing Associated Press reporter H. Josef Hebert in Lee's civil suit. Fitzgerald reached agreements with some journalists and their lawyers to limit his questions to certain sources or particular time frames. In a trial, "that will all become fair game," Schulz says. "Defendants will argue they have a due—process right to get all the surrounding information, which is going to put the privilege and the reporters' First Amendment claim directly in conflict with the Sixth Amendment and the right to a fair trial."

James Goodale, a former New York Times general counsel, sees a "real risk" for reporters who are called to testify in a trial.

"Once a journalist gets on the stand, it's going to be very hard for a journalist to say, 'All I'm here to talk about is the waiver'... when you're asked about other sources," he says.

Libby's lawyer, tasked with guaranteeing his client a fair trial, could ask Woodward or any other journalist whatever he wants.

"Now we have Bob Woodward, the world's greatest source protector... being in a position of unmasking other sources, or he can go to jail," Goodale says. 

Freelance writer Vanessa Leggett predicts the defense is "going to be granted latitude to tear into these journalists." Reporters at the trial are

"just going to file in there like mechanical ducks at an arcade, and there are going to be some who will fall," she says. "And those who fall will lose points with the public, and then we all lose."

There are other interesting aspects of the motion.

First, Libby makes clear this is just the beginning of what is likely to be a series of expansive discovery requests.

Secondly, Libby seems to be seeking evidence relating to Fitzgerald's' allegation that Plame's employment status was 'classified,' citing in particular that Bob Woodward described his source's disclosure to him that Plame worked at the CIA as 'casual and offhand' and the reference did not appear  'either classified or sensitive.'

Finally, Libby requests all subpoenas and agreements to limit the scope of documents or testimony by reporters. It is clear that there were such agreements. I have argued that they prevented a full exploration of the facts and made it more likely than not that the  grand jury findings would be skewed. I think this  request will be granted, and when it is many more members of the press will in Leggett's words join the file of 'mechanical ducks in the arcade.'
 
Clarice Feldman is a lawyer in Washington, DC.