Libby Versus The Press - Mark Your Calendars

Judge Walton, overseeing the Libby trial in the Plame investigation, recently issued the following order, summarized at PACER:

ORDER directing movant served with a Rule 17(c) subpoena pursuant to the Order of February 27, 2006 shall produce the designated items on April 18, 2006. It is further ordered that any movant seeking to quash or modify subpoena issued pursuant to order of February 27, 2006, must file a motion to quash or modify subpoena by April 18, 2006. Any opposition shall be filed by April 25, 2006 and reply thereto shall be filed by May 1, 2006. It is further ordered that the movants shall file a consolidated motion to quash or modify and the defendant shall file a consolidated opposition. It is further ordered that this Court will hear argument on any motion to quash or modify filed by Movant on May 5, 2006 at 1:30pm..

Signed by Judge Reggie B. Walton on April 3, 2006. (zjsc)

Per Jeralyn Merritt, current subpoena recipients are Tim Russert, Andrea Mitchell, NBC News, Matthew Cooper, TIME, Judith Miller, and the NY Times.

Oddly, this has not been widely reported.

We are especially keen to see the April 18 requests to quash the subpoenas because we are curious to see whether the media will pick up the theme originally initiated by the Libby defense, that the appointment of Fitzgerald violated the Appointments Clause of the US Constitution.

MORE:  Libby's team is meant to respond to the controversial Fitgerald discovery filing by April 12.

Comments

[Jeff]

Woodward at least among WaPo reporters has to have been subpoenaed, no? Which makes me think the Post is pursuing a similar strategy as the one it pursued with Fitzgerald, trying to negotiate favorable terms for testimony rather than fighting it.

[clarice]

As I recall, the WaPo has said it has received no supoenas yet. It could be because no one from there appears in the indictment. (Mitchell doesn't either, but she said "everyone knew" in essence, she works for Russert and the question of whether or not Russert said something like that to Libby is at issue here.

TM, that is two of us, as you know.

[Rick Ballard]

I don't believe that testimony is involved in this type of supoena, is it? This is 'notes and records' or anything written.

Unless I missed something.

[Jim E.]

Whew. Looks like Cliff May dodged another round. Strange that Libby's team is so uninterested in a guy who can help their case so much.

[Squiggler]

Is this the way things normally work that the argument to quash an order to produce on a date certain follows after the items are produced? I'm sure there is a good reason for this but it seems backwards.

[clarice]

There is no testimony on this--just the production of documents..Remember this is Libby's first round and it is for discovery. This does not mean that as discovery progesses, Libby will not subpoena the notes of others, nor does it mean that we will not call reporters as wtinesses who are not on this list.

Remembe--this is to help him discover information necessary to prepare his defense--including cross examination of the government witnesses. As I noted, Mitchell is the only one here not in the indictment, but she is a special case.

[clarice]

Squiggler, the order means by April 18 the subpoenaed parties must produce the documents or the file the appropriate motion..

[clarice]

*preeeeview is for sissies*

[Squiggler]

Oh, okay. Thanks.

[topsecretk9]

Wells, I think it was him, indicated there will be more subpoenas.

[clarice]

Yes. And he may have some reporters who will talk to his counsel without subpoenas. Woodward seems to be quite forthright about what he told the SP and I wouldn't be surprised if he'd repeat that and submit to some questions from them without any legal process.
Ditto people like Cliff May and Marty Peretz and others who've publicly said they knew all about Plame.

[topsecretk9]

I'm still miffed the NYT's won't tell who the other six of the eight are--Not sure why they protecting 6 other admin officials, but willing to throw Tenet and Ari under the train.

[topsecretk9]

Byron York and his very important hair ways in:

---...Also, it's useful to remember what was happening at the time of the so-called leak. There was an enormous clamor over the "16 words" in the State of the Union address, and about pre-war intelligence in general. The administration was in the process of declassifying various pre-war intelligence matters. In the midst of that came the specific accusations of Joseph Wilson in the pages of the July 6, 2003 New York Times. How was the White House to answer them? On pages 23 and 24 of the motion, Fitzgerald describes what Libby was authorized to tell reporter Judith Miller during their July 8, 2003 meeting, two days after Wilson's op-ed was published:

Defendant testified that he thought he brought a brief abstract of the NIE’s key judgments to the meeting with Miller on July 8. Defendant understood that he was to tell Miller, among other things, that a key judgment of the NIE held that Iraq was “vigorously trying to procure” uranium....Defendant advised Miller that Wilson had reported that he had learned that in 1999 an Iraqi delegation visited Niger and sought to expand commercial relations, which was understood to be a reference to a desire to obtain uranium. Later during the discussion about Wilson and the NIE, defendant advised Miller of his belief that Wilson’s wife worked at the CIA.

Now the fact that an envoy had been sent to Africa, that that envoy was Joseph Wilson, that he had been exploring possible Iraqi overtures to obtain uranium, and that he had reached some conclusions about the matter -- all that was pretty much out of the bag by the time Libby met Miller on July 8, wasn't it? And, by the way, who had let it out of the bag? That's not to say that Joseph Wilson leaked classified information; he did not reveal, for example, all of his contacts during the trip, and apparently those remain classified. Of course, Libby didn't leak that, either. In any event, the basic facts of the trip and Wilson's conclusions -- precisely the matters Libby wanted to discuss with Judith Miller -- were quite public....--

Contacts? Sort of a cliff hanger there.

[p.lukasiak]

might I suggest that the list provided by Jeralynn is in reference to supoenas to testify/provide documents for the trial, and were issued by Fitzgerald -- and that this list is unrelated to any "fishing expedeition" the defense might wish to engage in with regard to questioning other members of the media.

I mean, there is no way in hell that Libby's lawyers' aren't going to at least try and depose any journalist who might have spoken to Russert about Plame...

[danking70]

*preeeeview is for sissies*

LOL Clarice! You go girl!!!

[clarice]

lukasiak--there is no provision in the federal criminal cases to despose people before trial except in circumstances where the witness is dying/ out of the juridiction or otherwise unlikely to be available at trial. They are rare.

Nothing precludes people from voluntarily submitting to questioning by defense counsel, of course.

[Jeff]

How was the White House to answer them?

By lying, was evidently the answer. Libby told MIller all sorts of baloney about the NIE, to say nothing of the fact that Libby and Cheney had been briefed by Tenet back in June about the fact that the CIA no longer stood by the claims about uranium from Niger. Tenet was basing his briefing to them on a memo he got from the agency, which was an answer to questions he had himself asked in the wake of and partly as a result of repeated queries from Libby and Cheney concerning the Niger intelligence.

There is, of course, nothing necessarily illegal about Libby lying to a reporter. But it doesn't make for a very impressive argument in this case.

[TM]

might I suggest that the list provided by Jeralynn is in reference to supoenas to testify/provide documents for the trial, and were issued by Fitzgerald...

You are free to suggest it. However, her case numbers are right, pleadings appear at PACER, and it is not Fitzgerald that is subpoenaing these people.

[JM Hanes]

Jeff
"Which makes me think the Post is pursuing a similar strategy as the one it pursued with Fitzgerald, trying to negotiate favorable terms for testimony rather than fighting it."

They may not be the only ones. I know it sounded to me like Miller/Bennett may be angling for some sort of deal like the one they eventually got from Fitzgerald:

Robert Bennett, an attorney for Miller, told CNN the subpoenas are "incredibly broad, asking for more information than the prosecutor wanted" and called them a "fishing expedition."

Bennett said he will file some kind of response "trying to limit what they want to the realm of reasonableness."

[Patton]

I disagree that the media will jump on Libby's bandwagon that the prosecutor is unconstitutional - after all, they will be responding to Libbys' requests, not Fitzs.

I think Fitz got his argument out the other day, so the media will use HIS arguments
to quash the subpeonas..
NAMELY, that this case is narrowly about Libby lying and he doesn't need to track down who said what to who and who talked to UGO, etc.

[kim]

Jeff, got a cite to 'the all sorts of baloney' Libby told Miller about the NIE. Or is this some more of the rich organic fantasies needed to nourish the growth of your theory of an Evil White House?
====================================

[Cecil Turner]

While you're at it, maybe you can explain why a June '03 report would have anything to do with allegations the President had been misrepresenting intelligence four months earlier? (Or, for that matter, why the CIA's inability to find sufficient information to "conclude that Iraq pursued uranium from abroad" was news to anyone. I mean, we all understand why the Prez quoted the Brits in the first place, eh?) Other than ripe target for logic-chopping, it's hard to see any benefit to that convoluted bit of fuzzy thinking from Waas.

[Kate]

I wonder if President Bush still thinks that Fitzgerald is running a dignified investigation. That wouldn't be my opinion. I'm leaning toward a Democratic operative SP protecting another Democratic operative with the support and approval of the Democratic media. With all these good guys, that only leaves the White House to be the bad guys. Very dignified.

Sigh, when will the Presidenf fight back.

[Pofarmer]

"Sigh, when will the Presidenf fight back"

What can he do? Isn't Fitz pretty much set up like God in this case? Be interesting to see the statements today though.

[dorf]

The President does notbhave to fight back. He is drawing in the prey so to speak. By the time this is all wrapped up he will have smoked out the MSM "organs" and other assorted gasbags, the usual amount of Demos and Fitz will be happy going back under the loving umbrella of a normal DOJ caseload. This is a classic possum play.

[maryrose]

dorf:
I want to believe your scenario because that is how this should play out.
It disgusted me this morning to listen to John Kerry on Imus trashing the president about not protecting classified information. What a real jackass he is! Oh yeah that's right he's a dem candidate running in 08.

[TM]

How was the White House to answer them?

It is interesting to note that Libby's complaint to Judy Miller is exemplified by Jeff.

Basically, Libby said that, per the CIA leaks, the analysts are always right, and the policy-makers who actually make decisions are alsways wrong. Why? Because the analysts hedge everything and take all sides of every question, but the decison makers pick one side.

Later, even if the decision maker was mostly right (e.g., per Duelfer Saddam had nuclear apsirations and was a long term threat), the analyst can say "I was right, he was wrong", as with the aluminum tubes or the Niger uranium.

As it has played out since summer 2003, "BUSH LIED" becuas he was wrong about two points that were not central to the analysis then, or to the Duelfer conclusions since.

[Sue]

Tom,

Can you imagine the uproar if Bush had ignored the intelligence and did nothing with regards to Iraq, other than what was being done when he took office? Sanctions, fly overs, etc. The same NIE that is being used to pound him over the head today would be used to pound him over the head if he had done nothing and Saddam had transferred either money, knowledge or actual WMDs to terrorists. And the PDBs. Good freakin' grief. I bet there is one entitled Saddam Determined to Strike America.

I've seen this before but I think it is very appropriate. If the left saw Bush walking on water they would say look, he can't swim.

[Jim E.]

"I bet there is one entitled Saddam Determined to Strike America."

We know that's not true. Bush would have leaked it long ago. Er, excuse me, he wouldn't have leaked it, he would authorized it declassified and disclosed it to a select reporter or two.

[Sue]

Mr. E.,

You are probably right. They probably say something much more dire and direct.

[kim]

Your 6:33 AM post yesterday hits the nail on the head. What other choice had he, back then. What's wrong with having deposed Saddam? Where's the Beef?

Jim E, the mass of the captured documents is still untranslated. It will be torture by information dripping, ant truthboarding, except that MSM will not print it. Of course, the argument will be made that Chalabi hasn't yet printed it. You can believe what you like.
===============================