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Judge: Reporters Must Give Libby Documents
ABC News
May 26, 2006

WASHINGTON May 26, 2006 (AP)— Time magazine must give I. Lewis "Scooter" Libby drafts of articles so the former White House aide can use them to defend himself against perjury and other charges in the CIA leak case, a federal judge ruled Friday.

U.S. District Judge Reggie B. Walton limited the scope of subpoenas that Libby's lawyers had aimed at Time, NBC News and The New York Times for e-mails, notes, drafts of articles and other information.

But in a 40-page ruling, Walton rejected the news organizations' argument that they have a broad right to refuse to provide such information in criminal cases.

Libby, 55, Vice President Dick Cheney's former chief of staff, 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.

Walton said The New York Times might have to turn over drafts of articles and other information during Libby's trial if former Times reporter Judith Miller contradicts her previous statements about the case when she testifies as a government witness.

The judge ruled that Miller doesn't have to surrender two notebooks, her phone records or appointment calendars because the materials aren't relevant to Libby's defense.

NBC News also does not have to give Libby's defense team one page of undated notes taken by correspondent Andrea Mitchell because Walton said she is unlikely to testify at Libby's trial, which is set for January.

In granting in part and denying in part the media's challenges to Libby's subpoenas, Walton wrote, "The First Amendment does not protect a news reporter or that reporter's news organization from producing documents … in a criminal case."

The news organizations indicated they are not likely to appeal the ruling.

Catherine Mathis, a spokeswoman for The Times, said the newspaper is "gratified" that Walton did not order it to give Libby editorial materials.

Walton said Time magazine must turn over drafts of first-person stories that reporter Matthew Cooper wrote about his conversations with Libby because the judge found inconsistencies between them.

All of the news organizations had asked Walton to review the materials sought by Libby's lawyers in hopes of convincing him that the information was 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.

A person familiar with Cooper's drafts described the inconsistencies as "trivial." The person spoke on condition of anonymity because Walton has warned the case's participants against talking to reporters.

Several news organizations wrote about Plame after syndicated columnist Robert Novak named her in a column on July 14, 2003. Novak's column appeared eight days after Plame's 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 had 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 allegations about the Iraq war.

The key to Libby's defense is whose memory of those conversations is correct Libby's or those of the three reporters.

Walton said Cooper, Miller and Russert are central to the government's case and challenging their recollections will be "critical to the defense."

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