Supreme Court Nixes NY Times

The Supreme Court has turned down a request from the NY Times to  keep their telephone records secret from Patrick Fitzgerald (who is *not*, in this context, a Special Counsel) as part of Fitzgerald's investigation of some Islamic charities.

Here is Adam Liptak in the final version which ran in the Dead Tree edition:

The United States Supreme Court refused yesterday to stop a federal prosecutor from reviewing the telephone records of two reporters for The New York Times. The records, the newspaper said, include information about many of the reporters’ confidential sources.

In a one-sentence order offering no reasoning and noting no dissenting votes, the Supreme Court rejected a request from The Times to stay a lower court’s decision while the paper tried to persuade the justices to review the case.

Yesterday’s order effectively allows the United States attorney in Chicago, Patrick J. Fitzgerald, to begin reviewing the records, which he has already obtained from the reporters’ phone companies, as early as this week.

The Justice Department told the Supreme Court on Friday that Mr. Fitzgerald was under enormous time pressure. “The statute of limitations,” the government said, “will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating.”

Folks who peruse the NY Times website will note this almost-a-blog quirk - an earlier version of Liptak's story contains some speculation about the time pressures that did not make the final cut:

Justices Rebuff Times on Leak Inquiry

...On the other hand, if indictments must issue in the next two weeks, Mr. Fitzgerald may be pursuing a case in which the records alone could help prove, for instance, that a witness lied under oath in saying he never talked to one of the reporters.

The critical phone calls were in September and December of 2001; five years from that time would take us to December 2006, which is the time pressure cited by the Justice Department.

So why did Mr. Liptak's speculation get axed?  I have done *NO RESEARCH* on this point as yet [OK, I peeked], but I am a blogger and I will speculate -  if there is a statute of limitations on perjury, the clock would start from the time of the testimony, *not* from the time  of the underlying acts in question.  My guess is that testimony, false or otherwise, was given months later, so the limitations clock would still have plenty of time to run (I'll note the possibility that, by odd coincidence, someone gave false testimony in December 2003 and the statute of limitations for perjury is three years, but a five year limit is stuck in my head as the norm).  The upshot - Dec 2006 can't be the deadline for a perjury case.

The obvious tie-in to upcoming the Libby case is this - Fitzgerald is arguing that Libby may have lied about his interactions with reporters, secure in the belief that the reporters would not be questoned or reveal their sources.

The defense has countered by noting that plenty of reporters were themselves advised that they had no legal basis for resisting a subpoena; the reporters who held out were eventually beaten down in court (as is happening here).  Consequently, Libby would have to have been arrogant or ignorant to think he could lie to reporters and not eventually be found out.  (Yes, we are talking about one of the architects of the Iraq war, here...).

UPDATE:  Beldar returns to smite the Times, with more background on this case.

Comments

[cboldt]

There's an interesting lapse in the Holy Land / Global Relief timeline.

• Aug 7, 2002: Fitzgerald's request for voluntary production of NYT phone records
• July - 2004: Fitzgerald threatens legal action if the records are not produced voluntarily
• Sep 29, 2004: NYT files a request for declaratory judgement, before the government acts to compel turning over of the telephone records.
• Feb 24, 2005: Federal District Court Judge Sweet renders a judgement that the government has not met its burden to compel disclosure
• May 2005: The government appeals the case to the DC Circuit Court of Appeals
• Aug 2006: Court of Appeals reverses Judge Sweet
• Nov 2006: NYT moves SCOTUS for a stay of order. The motion is rejected.

At any rate, I agree that there is a possibility that both the underlying offense and false statements charges are in play. Fitz (or the FBI) likely interviewed the officials who knew about the planned raids.

There's another parallel too - perhaps there is no underlying offense. Perhaps it is legal to leak the fact that a raid is planned. Has anybody checked the statutes for that proposition?

[cboldt]

The December 2006 SOL dates are attached to the following events ...

The government therefore planned to freeze the assets of HLF and GRF, search their offices, or both, on December 4 and 14, 2001, respectively. One day before the government actions against HLF and GRF took place, however, New York Times reporters contacted HLF and GRF to seek comment on the imminent asset freezes by the government.

The government's case goes on to generally describe "possible violations"

No official or agent of the government was authorized to disclose the planned asset freezes or searches of HLF and GRF. Disclosures of law enforcement actions can violate federal criminal laws, including prohibitions against obstruction of justice. In each instance, the government believes that the advance notice provided by the New York Times' reporters reduced the effectiveness of the searches and compromised the safety of FBI agents who participated in them.

IOW, the leak itself may be charged as an obstruction of justice, separate from an obstruction (or false statements) later on, assuming the leaker (or somebody who knew who the leaker was) was questioned and willfully mislead investigators.

[clarice]

Were you being sly , TM?
" Consequently, Libby would have to have been arrogant or ignorant to think he could lie to reporters and not eventually be found out."
Or have you found a new law?

[cboldt]

-- "Consequently, Libby would have to have been arrogant or ignorant to think he could lie to reporters and not eventually be found out." --

Exactly. Reporters are a notorious back-channel to official investigations. They have to maintain a facade of confidentiality in order to get juicy stories, and they even erect an elaborate "reporter's privilege facade to fool their "secret sources." If only the sources knew, if only they knew.

[Walter]

This comment could go well equally here or on the Lanny Davis thread...(Or possibly on cbolt's Naccio thread--but Naccio denies allowing Qwest to participate)

Has anyone noticed that "The Government" as a whole already has these records via the routing information sent to NSA?

This is related to a terror investigation and we didn't see a privacy act letter requesting the records from the phone company.

The jack-booted thugs are falling down on the job.

[Walter]

Sorry--National Security Letter.

[Jane]

Okay, I'm confused. I thought this case had to do with Judy Miller tipping off a Muslim charity. Was there a second case that had to do with Libby? Or are we just applying precedent?

[clarice]

That is what the case before SCOTUS was about. Fitz also just filed an interlocutory appeal of J. Walton's CIPA ruling.

[cboldt]

-- "I thought this case had to do with Judy Miller tipping off a Muslim charity." --

It does. That's where Fitzgerald comes into the picture.

Just that another puzzlement is why can't the government just get the phone records from it's NSA database. The Nacchio case plays there as an example of the government wanting to keep NSA information -out- of trials, hence the desire for reporters to comply with subpoena.

Something makes me think Fitz was looking at phone records in the Holy Land / Global Relief raid-tipoff investigation. At this point, if I was the NYT and Miller, I'd give serious thought to stiffing the investigator. What can the government do about it? Put in jail until December 13? We'll know tomorrow if the NYT complies or balks.

[Jane]

It does. That's where Fitzgerald comes into the picture.

I'm assuming because he is prosecuting the Muslim charity case, not because someone assigned him to chase Judy Miller on all fronts. Is this the case that people say made him so mad at her that he put her in jail in the Libby case?

Is Miller a witness for the prosecution in the Libby case? Seems like Fitzy is gonna half to sell out one to succeed on the other. I wonder which one it will be.

[cboldt]

-- "Something makes me think Fitz was looking at phone records in the Holy Land / Global Relief raid-tipoff investigation." --

Nope. Was my imagination. He wanted to, but Judge Sweet said that the government could not get the records because to do so would amount to a violation of reporter privilege.

The [district] court also concluded the New York Times could assert whatever reporter's privileges might exist in order to oppose enforcement of subpoenas for telephone records held by third parties (e.g., the telephone service providers).

[cboldt]

-- "Is this the case that people say made him so mad at her that he put her in jail in the Libby case?" --

Made him blind with rage, it did. This is the very same case that you are thinking of. And if she stiffs him now, goes to jail for a few weeks, he'll be madder still. Once the statute of limitations runs, she can't be held in civil contempt any longer. Of course, Fitz might be so mad by them that he'd ask for criminal contempt charges as a punitive matter, or charger Miller with obstruction for refusing to comply with a subpoena.

-- " Is Miller a witness for the prosecution in the Libby case? Seems like Fitzy is gonna half to sell out one to succeed on the other." --

She is indeed a prosecution witness in the Libby case. Fitz pretty much said in his pleading that she's not friendly to (or biased in favor of) the prosecution. I figure he can go after Miller hard in the charities cases, it won't affect his bumbling of the Libby case.

[Jane]

Well Fitzy has got himself in a pickle I think. He's gonna have to chose between getting Miller or getting Libby. Because Judy Miller is smart enough to not only make sure he loses the Libby case but make him look like a baffoon in the process which certainly will carry over what will be called a revenge case against her.

The case against Libby is, as we all know, a mess. So maybe that won't be his first choice. Lawyers could have a great deal of fun squeezing Fitzy on the docket or any number of other things, with 2 cases pending, both dependant on Judy Miller.

Now I personally think that if Judy Miller is tipping off the enemy she should go away for a long time. I'll not shed a tear on that front. But I'm quite happy to have her help out on the Libby front in the meantime.

[clarice]

Jane, I'm pretty sure that while the interlocutory appeal is pending everything at the district court level is halted. It may not be an either or situation.

[topsecretk9]

Clarice

Can you explain what this appeal is, says...and is this an unusual situation?

[Walter]

cboldt,

Fitzgerald is relying on third-party subpoenas.

He already has the phone records (subpoenaed from the various phone companies), but has not looked at them because of the district court ruling (overruled by the circuit court, but not yet remanded.)

And that's my point. We have a great deal of due process left in this country.

I can't think of another country where a prosecutorial arm would have access to incriminating evidence on at least three fronts (NSA routing info, NSA letter (which cannot be disclosed to targets like Miller or the Times, and subpoenaed but held under seal in the prosecutor's office) but not use them.

[cboldt]

-- "We have a great deal of due process left in this country." --

And the best politicians that money can buy.

[clarice]

ts-the classified information procedures act sets up a system which is designed to allow prosecutions when classified information must be disclosed to the defendant..it is designed to prevent graymail--that is, the inability of the govt to prosecute such cases without making public such materials. It sets up procedures at the trial level for the judge to review the materials and hear the defense claims of need and the prosecution's claim respecting non-disclosure and resolve these matters.

In the Act there is a procedure for review during the case--called interlocutory appeals-- because in either case (too restrictive access to the defendant or too generous revelation of classified material) will affect the whole case and judicial economy might be best served by allowing such appeals--which are normally rare in other situations.

Fitz is unhappy with the court's resolution of some CIPA disputes here, and has moved for this interlocutory review by the Court of Appeals.

[Walter]

Oh, ya got me cboldt--TM had the phone company stuff in his post.

Doesn't change my larger point, though.

FWIW, my office at AT&T (nee Pacific Bell) was on the second floor of the building described in this Wired article

[topsecretk9]

Well...all the transcripts are up and a new Fitz motion too.

[cboldt]

-- "In the Act there is a procedure for review during the case--called interlocutory appeals--because in either case (too restrictive access to the defendant or too generous revelation of classified material) ... judicial economy" --

CIPA § 7 is a one-way proposition in favor of the government / limiting disclosure of classified information.

[clarice]

So it does--I suppose for the defendant there's Sec 1292.

[cboldt]

Fitzgerald Response to Motion for Reciprocal Disclosure [Doc 208]

Fairly predictable reply on Fitz's part. I doubt Walton will rule in Fitz's favor. Plenty of yucks inside, I haven't reviewed it for the usual panoply of prosecutorial errors.

As discussed below, the plain language of Section 6(f) only requires the government to provide discovery of information that the government "expects to use to rebut the classified information" that the defendant will offer at trial, CIPA § 6(f) (emphasis added), and does not, as the defendant attempts to more broadly recast it, require the government "to identify the evidence it will use to rebut the memory defense," Def. Mot. at 4 (emphasis added). When interpreted in the sole way that its text permits, the government currently has no information to provide under Section 6(f) because the government does not expect to dispute the veracity or accuracy of "the classified information" that the defendant plans to offer at trial in support of his memory defense.

[sbw]

OT: Does this stand up to scrutiny as an editorial:

You are in the middle of a spam attack and may not even know it.

For the internet innocent, Spam, in addition to being a luncheon treat available at your local grocery, is usually the unsolicited transmission of questionable information to your email address. But this attack is different, instead of bogus email delivered to your computer, these goons hijack your local newspaper and television news to deliver their carefully crafted message that serves their purpose.

Some biological viruses mask themselves to a person's immunological defenses, then hitch a ride on some defender cells to carry on their attack. In this case, some fake news is passed on to unsuspecting or uncaring news reporters who, thinking they have hot news, pass on the propaganda to your unsuspecting eyes and ears.

We depend on news services to be shrewd enough, if not to filter out unverified information at the outset, to eventually discover what is being done and trumpet the invasion attempt louder than the initial bogus news itself was presented. But that is not happening. The news agencies are failing us. It is highly likely that the Los Angeles Times has been taken in by a source, yet it will not admit it. It is highly likely that the Associated Press Middle Eastern editor has accepted numerous stories over six months that claim bad military news, has been so informed by our military commanders, yet they have not admitted it. It is highly likely that NBC has decided to call what is happening in Iraq a civil war because of some of this bogus information.

In a further variation, the Washington Times reported some details about the Imams who were removed from a US Airways flight for their peculiar activities. Those activities apparently included not only not sitting in assigned seats but sitting instead in those seats similar to those used by the 9-11 hijackers. This and more lead several commentators to wonder if this wasn't a legal assault on the security system with the side value of inserting anti-security propaganda about profiling into the news.

The enemies do not care whether the propaganda gets through and demoralizes Americans, or if it merely undermines the integrity of our news, so long as Americans don't respond by steeling their resolve to oppose those forces wishing to undermine society.

At this point we have informed our news service that their brand is in jeopardy because they either don't recognize the threat or they don't care to publicly report on it. We just wanted to advise our readers to be careful how much of what they read they should believe. We want to advise our readers that civil society can be undermined. We want to advise readers that subverting reporting is bad for free societies and that they have a good deal to say about what kind of behavior we will tolerate.

We take it back. This is not a spam attack. This is a regular attack on the institutions upon which free citizens depend.

[cboldt]

Fitz's No. 208 gives a pretty good handle on the scope and breadth of Libby's preoccupation defense.

Odd that it doesn't mention the CIPA appeal.

[ed]

Hmmm.

Thank God this is back.

Now we've got something other than gay issues to talk about for awhile.

[Cecil Turner]

Consequently, Libby would have to have been arrogant or ignorant to think he could lie to reporters and not eventually be found out.

Yes. And whether he expected them to spill their guts immediately or not, the real question is whether he was willing to rely upon them to hide his felony dissembling. (Betting his liberty against their willingness and ability to resist successfully.) And, per Fitz, simultaneously believe grand jury secrecy would not protect his testimony from becoming "publicly known." I have a hard time seeing why a supposedly competent lawyer would put his trust in a nonexistent press privilege over the integrity of a DOJ investigation. Sad, if true.

[maryrose]

Libby is too good a lawyer to trust reporters with his future livelihood. As for the secrecy of the grand jury; everyone in Washington knows that's a crock.What Libby probably didn't expect was that a letter of referral from the CIA would be sent or that super prosecutor Fitz would be brought on board. Or that a nitpicking nothingburger case would be drummed up because Fitz had a score to settle with Miller.

[MJW]

I read Fitz's latest filing, and had a few observations.

Fitz points to the wording of CIPA: "Whenever the court determines pursuant to subsection (a) that classified information may be disclosed in connection with a trial or pretrial proceeding, the court shall, unless the interests of fairness do not so require, order the United States to provide the defendant with the information it expects to use to rebut the classified information. He claims that the plain language of CIPA, "the information it expects to use to rebut the classified information," proves it only applies to evidence that directly rebuts the contents of the classified information. Fitz has a point; however, I think the wording is more ambiguous than Fitz implies. A broader reading of "the classified information" to encompass "the use of the classified information" doesn't seem unreasonable, particularly when the apparent intent of the reciprocity section is to prevent the prosecution from obtaining an unfair advantage by forcing the defense to reveal its strategy and evidence. Libby cites Wardius v. Oregon, 412 U.S. 470 (1973) to support the argument that such one-sided disclosure is violates the dependent's constitutional rights. (In this case, the supreme court found unconstitutional a law requiring the defendant to disclose any alibi defense prior to trial while not requiring the prosecution to disclose its rebuttal evidence to that defense.)

Fitz argues against the fairness issue by quoting from United States v. North, 910 F.3d 843, 902 n.41 (D.C. Cir. 1990). Nothing in the quoted passage reveals the precise point the court was making (which is suspicious), and unfortunately I couldn't find the decision to see the context of the quote.

Fitz devotes a lengthy section of his argument to the influence of then-Assistant Attorney General Phillip Heymann on the wording of the reciprocity section. It seems to me that legislative history is, in general, rather weak evidence, and this is pretty weak even as legislative history goes.

Several times, in several ways, Fitz argues that the concept of reciprocity is misplaced because the "the defendant has obtained almost all of the classified information in question from the government in discovery." In the Libby case, though, this argument is inapplicable, since Libby already had general knowledge of the classified evidence he intends to use in his defense; what he seeks is permission to use it.

Fitz claims that Libby's revelation of details of his memory defense really doesn't provide any advantage to the government, since Fitz already knew Libby would use such a defense. This borders on disingenuous. I'm sure in most cases the general outline of the opponent's case is known -- that's worlds away from knowing the exact presentation. Fitz also claims, "he playing field is also leveled because the government's theory of the case, including the general parameters of its rebuttal case, has been aired repeatedly and in some detail during the course of the CIPA proceedings." Yet, if this is true, why does Fitz object to doing what he claims he's already substantially done?

[cboldt]

-- "Fitz argues against the fairness issue by quoting from United States v. North, 910 F.3d 843, 902 n.41 (D.C. Cir. 1990). ... unfortunately I couldn't find the decision" --

That's because Fitz is deliberately misstating the case, even got the citation wrong. The case is reported at 910 F.2d 843.

[MJW]

Thanks for the citation correction, cboldt. I don't know if Fitz really got the citation wrong; it could have been an error when it was converted to HTML. I wish Fitz and Libby would post links to all their court papers on their websites.

The reason I couldn't find the North decision isn't the incorrect volume number, but rather that I generally can only find Supreme Court decisions on the internet.

[cboldt]

-- "I don't know if Fitz really got the citation wrong; it could have been an error when it was converted to HTML." --

The conversion from PDF to TEXT is faithful except text style like bold, italics, font size and underline are lost. I just looked at the PDF original, and the volume is indeed incorrectly cited there. A couple of dead giveaways - the 920 F.2d cite that follows (same case, modified on other grounds), and the F.3d series didn't exist in 1990, let alone have worked up to volume 910.

The North case is rather long and involved - Ollie North mounted a vigorous defense and CIPA was involved as a matter of keeping his marching orders in Iran/Contra somewhat obscure. The case is often cited, for various propositions, e.g., use of compelled/immunized testimony. There are a few hundred references in a google search - none of them link to the case itself.

Interesting that both Libby and North invoke the SCOTUS Wardius case. Naturally, Wardius being Supreme Court, its rule must be followed.

[clarice]

cboldt, I credited you the other day in an article about the Libby case delay and emailed it to you but it could not be delivered.

http://www.americanthinker.com/blog/2006/11/libby_case_delay_possible.html

[cboldt]

-- "I credited you the other day in an article about the Libby case delay and emailed it to you but it could not be delivered" --

Thank you very much. I saw the article yesterday, following a link from a FR post.

Weird that the [email protected] email addy didn't work for you. Thanks for the report of failed e-mail delivery. I'll see if I can get to the bottom of that snafu.

[MJW]

cboldt, I didn't mean to cast doubt on your HTML versions of the court papers, which are very much appreciated. I just thought that the conversion might have been done on one of those photocopy type of PDFs, where optical character recognition errors can come into play.

From what I could learn about the CIPA issues in the North appeal, I believe the appeals court criticized the trial court for not adhering strictly enough to the 6(f) reciprocity requirements, but found that the effect on the trial wasn't sufficient to reverse on those grounds. If so, then perhaps Fitz's quotation from the decision relates more to the matter of what level of disregard constitutes reversible error then to the the breadth of the requirement. As I mentioned previously, without knowing the context (which Fitz doesn't provide), it's difficult to know how much the quote support Fitz's position. Presumably if it doesn't, Libby's response will point that out.

[cboldt]

-- "I just thought that the conversion might have been done on one of those photocopy type of PDFs, where optical character recognition errors can come into play." --

Understood - I was just reiterating a long-past post of mine, where I described why I "convert" some of the filings, and not others. I've tried the OCR thing, and the results aren't very good, so I don't even bother with those - except some of the more interesting and short ones, which I retype by hand.

-- " ... it's difficult to know how much the quote support Fitz's position. Presumably if it doesn't, Libby's response will point that out." --

Yes. Libby made the motion for reciprocal discovery (202 on 11/21), Fitz gets a response (208 on 11/28), and Libby gets a reply to the response. In the recent spate of Motions (five sets - five separate issues), the timeframes have been 2 weeks or less between Motion and Response (Opposition), and 2 to 5 days between Response (Opposition) and Reply (Rebuttal).

[cboldt]

A new docket entry at the trial court, gives insight in timeline for the 4 motions in limine (hearing before Judge Walton on December 19). A significant fraction of the CIPA activity has been conducted under seal, so it's anybody's guess what ground those discussions cover.

11/29/2006 Minute Entry for proceedings held before Judge Reggie B. Walton : CIPA Hearing (Closed Session); resumed as to I. LEWIS LIBBY held on 11/29/2006; Motion Hearing (Motions in Limine) set for 12/19/2006 11:30 AM in Courtroom 16 before Judge Reggie B. Walton. Defendant Continued on (PR Bond); Court Reporter: Bryan Wayne Defense Attorney: William Jeffress/John Cline; US Attorney: Patrick Fitzgerald/Peter Ziedenberg; (mpt, ) (Entered: 11/29/2006)

[cboldt]

Fitz has completed his redaction of Walton's November 15 Memorandum Opinion relating to the relevance, admissibility and use of CIPA material. It is a scanned-in PDF file, and some pages are nearly illegible for reasons other than redaction. It's 38 pages in length and weighs in at about 4.2 Mb.

I put a copy of it at turboupload - a bit of an annoyance for interested folk to have to go there to download it, but it's better than nothing if you are in a hurry. Maybe TM will grab it and host it at JOM.

Redacted Opinion re: Relevance, admissibility, use of CIPA evidence [Doc 209]

There is also plenty to glean from the opinion, including the volume and nature of evidence that Libby intends to use in his preoccupation defense.

[MJW]

Thanks for the link, cboldt. It was quite interesting reading. (That document certainly would be a challenge to OCR software.)

[cboldt]

-- "That document certainly would be a challenge to OCR software." --

It's a challenge even for the human, to interpret some of the alphabetic characters. Thank goodness for context and magnification.

-- "It was quite interesting reading." --

Indeed. Looks like Fitz is hosed, with all that stuff coming in. There is no way, given all of that, that jury could possibly conclude that Libby had even a scintilla of interest in who sent Wilson.

Hezbullah, Iran, North Korea, Africa, terrorist threats against the United States (including biological threats and a shortage of vaccine) ... no wonder Fitz appealed. Looks as though Libby got everything he asked for, except for the reciprocal disclosure required by CIPA 6(f). That ruling is probably a few weeks off. I haven't checked to see if Libby replied to Fitz's Objection on that (reciprocal disclosure) issue.