No Easy Answers
Tuesday, May 09, 2006
Press Responses in Support of Motions to Quash - May 8, 2006
What follows is a series of five filings, each of which is a
response to Libby's Objections to press Motions to Quash or
Modify Subpoenas. Offered here without comment, in
"alphabetical" order. That is, Cooper, Miller, NBC (Mitchell),
New York Times, and Time, Inc.
Case 1:06-mc-00124-RBW Document 8 Filed 05/08/2006 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
)
v. ) Misc. No. 06-124 (RBW)
)
I. LEWIS LIBBY, ) Oral argument requested
also known as "Scooter Libby," )
Defendant. )
-------------------------------------------------------------- )
)
MATTHEW COOPER, )
Movant. )
REPLY OF MATTHEW COOPER
IN SUPPORT OF HIS MOTION TO QUASH
Matthew Cooper respectfully submits this reply brief in support of his motion to quash
the subpoena issued to him by Defendant I. Lewis "Scooter" Libby.
In his Motion to Quash Subpoena, Mr. Cooper adopted as his own the arguments made
by Time Inc. ("Time") for quashing the materially similar subpoena issued to Time as set forth in
Time's Memorandum of Points and Authorities in Support of Time's Motion to Quash or
Modify, filed in the related action Misc. No. 06-128 (RBW). Specifically, Mr. Cooper adopted
Time's arguments that the subpoena issued to him, like the subpoena to Time, is overbroad,
unreasonable, and burdensome under Federal Rule of Criminal Procedure 17(c) and seeks
information protected by the reporter's privilege under the First Amendment to the United States
Constitution as well as the common law and Federal Rule of Evidence 501.
In opposing Mr. Cooper's motion, Mr. Libby seeks to create two false impressions. First,
Mr. Libby claims in his brief in opposition ("Libby Opp. Br.") that adopting Time's argument
"does [Mr. Cooper] little good since Time specifically limits its argument to documents
possessed by employees other than Mr. Cooper." Libby Opp. Br. at 33 (emphasis in original).
This claim is inaccurate. Time's arguments, both as to the defects under Rule 17(c) and the
Case 1:06-mc-00124-RBW Document 8 Filed 05/08/2006 Page 2 of 2
protection afforded by the reporter's privilege under the First Amendment and federal common
law, apply with equal force to the subpoenas issued to Time and to Mr. Cooper, which call for
substantially the same materials in Time's and/or Mr. Cooper's possession.
Second, Mr. Libby suggests that Mr. Cooper has a "pro-Wilson" bias, a claim that is both
entirely without support and wholly inaccurate. See Libby Opp. Br. at 34, 35. Quite simply,
Mr. Cooper denies having any such bias, and he rejects the implication from Mr. Libby that his
testimony before the grand jury was anything but truthful.
For the reasons stated in Time's opening Memorandum of Points and Authorities, as well
as the reasons stated in the Reply Brief of Time Inc. in Support of its Motion to Quash or
Modify, filed today in Misc. No. 06-128 (RBW), which again Mr. Cooper adopts Time's
arguments as his own, Mr. Cooper respectfully requests that the Court quash or modify the
subpoena issued to him.
Mr. Cooper respectfully requests oral argument.
Dated: May 8, 2006 Respectfully submitted,
____________/s/______________________
Richard A. Sauber (D.C. Bar. No. 385070)
Michael J. Anstett (D.C. Bar. No. 472177)
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
1001 Pennsylvania Avenue, N.W., Suite 800
Washington, D.C. 20004-2505
Telephone: 202.639.7000
Facsimile: 202.639.7003
Counsel for Matthew Cooper
2
NEW DOCUMENT FOLLOWS
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 1 of 8
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. ) Misc. No. 06-125 (RBW)
)
I. LEWIS LIBBY )
)
REPLY OF JUDITH MILLER IN SUPPORT OF MOTION TO QUASH
In Mr. Libby's consolidated response to the motions to quash (the "Response"), he
maintains that the movants mischaracterize the Rule 17(c) legal standard, as enunciated in United
States v. Nixon, 418 U.S. 683 (1974).1 We disagree, but critical to resolution of Ms. Miller's
motion to quash, in any event, is the fact that Mr. Libby has not shouldered his burden to
demonstrate relevance and admissibility of the documents sought, and the specificity of the
requests contained in the subpoena served upon her. The motion to quash should be granted.
ARGUMENT
Mr. Libby asserts that he needs Ms. Miller's two original, unredacted reporter's
notebooks, phone records, and appointment calendar,2 to "attack the government's case and prove
his innocence at trial," and "to show whether it is Mr. Libby or the reporters who have misstated
or misrecollected the facts." (Response at 1). These emphatic statements aside, the Response
1
Read in context, the language quoted by Mr. Libby in support of the view that he need
only show a "sufficient likelihood" of relevance, and "sufficient preliminary showing" of
admissibility, appears to relate to the deference given district courts under Rule 17(c) for
purposes of appellate review, rather than to the elasticity of the 17(c) standard itself. See
Nixon, 418 U.S. at 700.
2
Ms. Miller's counsel is now in possession of all of these materials, including the two
original reporter's notebooks. Ms. Miller has completed her search for potentially-
responsive materials, and has discovered nothing else.
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 2 of 8
offers the Court nothing tangible to establish that the documents sought from Ms. Miller contain
any evidentiary material "relevant to the offenses charged in the indictment." Nixon, 418 U.S. at
700. By any reasonable interpretation, the requests present this Court with a classic "fishing
expedition" not permitted by Rule 17(c).3
I. Review of Documents by Mr. Libby's Counsel, to Establish Relevancy and
Admissibility, Is Not The Answer.__ ________________________________________
Taking on the contention in the motion to quash, supported by Mr. Bennett's
declaration, that none of the documents sought by the defense are relevant to the case or
admissible, Mr. Libby maintains that it is his counsel who "are in the best position to make [the]
important judgments" with respect to the relevance and admissibility of the documents he seeks.
(Response at 12). Mr. Libby further asserts that he "is clearly better situated than Ms. Miller's
counsel to determine which individuals [referenced in her notes, phone logs and calendar] are
'pertinent to this case' and what 'context' is useful to the defense." (Response at 14). Mr. Libby
cites no law in support of this proposition which, if implemented, would serve to grant defense
counsel unchecked leeway to inspect any documents they seek via Rule 17(c). This cannot be
the law, as it is not the purpose of Rule 17(c) to serve as a broad discovery device. See, e.g.,
United States v. Cuthbertson, 630 F.2d 139, 146 (3rd Cir. 1980).
Given this black-letter law, there is simply no reason to reject Mr. Bennett's
declaration as definitive especially when Mr. Libby concedes he has no evidence to counter Mr.
Bennett's representations. (Response at 11). The fact is that Ms. Miller's counsel has spent
3
Mr. Libby claims that "Movants admit" they have "[d]ocuments showing that [he] and
other officials talked to reporters about Mr. Wilson . . . but never mentioned his
wife . . . ." (Response at 7). Ms. Miller has made no such admission, and has not located
any such documents.
2
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considerable time with her, reviewing the words, symbols, and notations in the two reporter's
notebooks at issue. 4 To the extent the Court wishes to satisfy itself independently, in camera
review is the answer, not production to the defense. United States v. Poindexter, 732 F. Supp.
135, 138, 141 (D.D.C. 1990).5
II. The Documents Sought Are Irrelevant to Any Defense and Are Inadmissible.
Mr. Libby asserts that he "has established a 'sufficient likelihood' that the
documents he seeks are relevant to his defense." (Response at 6). In support, he maintains that
"the documents sought are likely to contain evidence that some, if not all, of his testimony
about . . . conversations [with reporters] was correct and that it is the reporters who have an
unreliable recollection or have misstated the facts." Id. He also makes the startlingly baseless
claim that it may have been Ms. Miller who mentioned Ms. Plame to him. (Response at 15).
These contentions are unavailing. How can it possibly be maintained that Ms. Miller's notes of
discussions with persons other than Mr. Libby, regarding topics unrelated to the instant case,
have any bearing on his, hers, or anyone's recollection of the salient facts regarding her
4
Ms. Miller and her counsel reviewed every page of her notes, not just the passages
produced to the government as Mr. Libby suggests. (Response at 14 n.3; see Bennett
Decl. at ¶¶ 4-7).
5
Notably, Mr. Libby does not seek in camera review.
Mr. Libby asserts that he needs Ms. Miller's unredacted notes, eight months before trial,
for impeachment. (Response at 11). The material he seeks, as it is completely irrelevant
to the issues in the case, would not constitute proper impeachment evidence particularly
at this early date. See, e.g., Nixon, 418 U.S. at 701.
Mr. Libby also contends, citing Nixon, that "'analysis and possible transcription' of much
of the evidence sought (including reporters' notes) 'may take a significant period of
time.'" (Response at 9, quoting Nixon). Nixon involved transcription of twenty lengthy
audio tapes. 418 U.S. at 688. There is, by no stretch, anything close to this volume of
material in Ms. Miller's possession.
3
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 4 of 8
conversations with him? Nor does Mr. Libby successfully show the relevance of Ms. Miller's
phone records and appointment calendar, which contain numerous references to both personal
and professional contacts regarding topics unrelated to any issue germane to the instant matter.
It is simply not the case that, as Mr. Libby claims, "the documents sought likely contain evidence
that the government's witnesses are mistaken about . . . alleged conversations [among Mr. Libby
and others], or are shading their testimony to protect themselves or others." (Response at 6).6
With respect to the notebooks, Mr. Libby argues that the unredacted "page" on
which Mr. Wilson's phone number appears may assist the defense in determining from where Ms.
Miller received the information. (Response at 13). Mr. Libby makes similar speculative
arguments with respect to other entries. (Response at 13-14). Yet description of what Mr. Libby
might be able to glean from the notebooks, and how he might then be able to investigate further,
does not establish what he must to survive a motion to quash that the evidence sought, in and
of itself, is relevant and admissible. It is not, and no amount of hypothesizing about what Mr.
Libby might learn from reviewing personal and sensitive professional information having
nothing to do with this case will make it so.7
6
Also, as we point out in our opening brief and which Mr. Libby does not contest, his
requests are precluded by the Court's prior ruling that such information is immaterial to
any claim of defense. (Mem. Op. of March 10, 2006 at n.3). The prior ruling constitutes
the law of this case.
7
Mr. Libby suggests that he will use such information "combined with information already
known to the defense" to allow him to "identify who, other than Mr. Libby, may have
disclosed Ms. Wilson's CIA affiliation to Ms. Miller . . . ." (Response at 14-15, emphasis
added). Mr. Libby further maintains he will use such information "to contend that,
contrary to the allegations in the indictment, it was Ms. Miller who raised this topic in her
discussions with Mr. Libby the topic was raised at all." (Response at 15, emphasis in
if
original). To the extent Mr. Libby has specific information establishing the information
he demands is relevant and admissible, it is incumbent upon him to present it to the Court
now, in support of his subpoena. He makes no such attempt.
4
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 5 of 8
III. The Subpoena is Insufficiently Specific In Its Requests.
Mr. Libby maintains that his Rule 17(c) subpoenas are properly limited by "date
ranges, probable custodians, particular events, and narrowly circumscribed subject areas." 8
(Response at 9-10). This mischaracterizes the subpoena served upon Ms. Miller. With respect to
Requests 1 and 2 covering her notebooks, calendar and phone logs the subpoena makes no
reference to subject matter. And with respect to Request 2, encompassing her phone logs and
calendar, the request covers a period of almost six weeks.9
Mr. Libby attempts to draw support from Nixon, but Nixon presented facts clearly
distinguishable from the instant situation. In Nixon, the Court found the subpoena sufficiently
specific, in part, because the subpoena sought "writings relating to certain precisely identified
meetings between the President [the target of the subpoena] and others" and because "the Special
Prosecutor was able to fix the time, place and persons present at these discussions" based on
Mr. Libby also asserts that he needs the original notebooks to inspect the "coloration of
the writing implement" and "weight of the markings." (Response at 13). Regarding color,
Ms. Miller has produced a photo quality, color copy of the relevant portions of her notes
to the grand jury. We assume a similar copy can be provided to Mr. Libby by the Special
Counsel. His reference to "weight of the markings" is opaque, and is supported by no
expert proffer as to relevance and admissibility.
8
In an attempt to distinguish the instant case from the subpoena quashed in United States v.
Morris, 287 F.3d 985 (10th Cir. 2002), Mr. Libby maintains his subpoenas do not seek
"entire files." However, Ms. Miller's notebooks are essentially "entire files," containing
all interviews that took place over several weeks. Similarly, her phone logs and calendar
are essentially "entire files," containing her appointments and contacts over a similar
period of time. As noted, Mr. Libby's demand for these items is not limited by subject
matter. Nor do they contain any material relevant to the case, let alone to the defense.
9
As noted in Ms. Miller's opening brief, Requests 3 and 6 overlap with Request 1 with
respect to her reporter's notebooks. Requests 3 and 6 are limited by subject matter, such
that the only portion of her notes responsive to the Requests are those she produced to the
grand jury.
5
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 6 of 8
information already in his possession. 418 U.S. at 688 (emphasis added). Despite his
earnestness, Mr. Libby provides no such detail.
CONCLUSION
For the foregoing reasons and those stated in her opening brief, Ms. Miller
respectfully requests that the Court grant her motion.
Dated: May 8, 2006
Respectfully submitted,
By: _______________/s/__________________
Robert S. Bennett (D.C. Bar No. 112987)
Saul M. Pilchen (D.C. Bar No. 376107)
N. Nathan Dimock (D.C. Bar No. 487743)
SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000
Counsel for Judith Miller
6
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 7 of 8
CERTIFICATE OF SERVICE
I, N. Nathan Dimock hereby certify that a true and correct copy of the foregoing
"Reply Of Judith Miller In Support Of Motion To Quash" was this 8th day of May, 2006, filed
by and with the Court and served by causing a true and correct copy to be delivered by facsimile
and by first-class mail, postage prepaid to the following:
William H. Jeffress, Jr.
Alex Joseph Bourelly
Alexandra M. Walsh
BAKER BOTTS, LLP
The Warner Building
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004
Facsimile: 202-585-1087
Joseph A. Tate
DECHERT LLP
2929 Arch Street, Cira Centre
Philadelphia, PA 19104
Facsimile: 215-994-2222
Theodore V. Wells, Jr.
James Lewis Brochin
PAUL, WEISS, RIFKIND, WHARTON & GARRISON,
LLP
1285 Avenue of the Americas
New York, NY 10019
Facsimile: 212-373-2217
John DeWitt Cline
JONES DAY
555 California Street
San Francisco, CA 94104
Facsimile: 415-875-5700
Counsel for Defendant
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 8 of 8
Honorable Patrick J. Fitzgerald
Special Counsel
OFFICE OF THE UNITED STATES ATTORNEY
NORTHERN DISTRICT OF ILLINOIS
Dirksen Federal Building
219 South Dearborn St.
Chicago IL 60604
Facsimile: 312 886-0657
Debra R. Bonamici
OFFICE OF THE SPECIAL COUNSEL
Dirksen Federal Building
219 South Dearborn St.
Room 500
Chicago IL 60604
Facsimile: 312 886-0657
Kathleen Kedian
Deputy Special Counsel
U.S. DEPARTMENT OF JUSTICE
1400 New York Avenue, N.W., Room 9422
Washington, DC 20005
Facsimile: 202 514-3003
Peter Robert Zeidenberg
U.S. DEPARTMENT OF JUSTICE
1400 New York Avenue, N.W., Room 12-405
Washington, DC 20005
Facsimile: 202 514-3003
Counsel for the United States
______________/s/_____________
N. Nathan Dimock
SKADDEN, ARPS, SLATE, MEAGHER &
FLOM, LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
2
NEW DOCUMENT FOLLOWS
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v. Case No. 06-MS-123 (RBW)
I. LEWIS LIBBY,
also known as "Scooter Libby,"
Defendant.
REPLY MEMORANDUM IN SUPPORT OF MOTION OF
NON-PARTIES NBC NEWS AND ANDREA MITCHELL TO QUASH SUBPOENAS
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.
Lee Levine (D.C. Bar No. 343095)
1050 Seventeenth Street, N.W.
Suite 800
Washington, DC 20036
(202) 508-1100
Susan E. Weiner
National Broadcasting Company
30 Rockefeller Plaza
New York, NY 10112
(212) 664-2806
Counsel for Non-party Movants NBC News and
Andrea Mitchell
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 2 of 15
TABLE OF AUTHORITIES
CASES
In re DaimlerChrysler AG Securities Litigation, 216 F.R.D. 395
(E.D. Mich. 2003) ..............................................................................9
In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) ...........................3
Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004)....................................................9
United States v. Cherry, 876 F. Supp. 547 (S.D.N.Y. 1995) ..........................................3
United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980)...........................................9
United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981)...........................................3
United States v. Dye, 508 F.2d 1226 (6th Cir. 1974).................................................6
United States v. Frappier, 807 F.2d 257 (1st Cir. 1986) ............................................6
United States v. Gomez-Gallardo, 915 F.2d 553 (9th Cir. 1990) ......................................6
United States v. Gossett, 877 F.2d 901 (11th Cir. 1989) ............................................6
United States v. Ince, 21 F.3d 576 (4th Cir. 1994) .................................................6
United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986) ........................................6, 7
United States v. Logan, 121 F.3d 1172 (8th Cir. 1997) ..............................................6
United States v. Miller, 664 F.2d 94 (5th Cir. 1981) ...............................................6
United States v. Nixon, 418 U.S. 683 (1974) .................................................1, 8, 10
United States v. Peterman, 841 F.2d 1474 (10th Cir. 1988)........................................6, 7
United States v. Poindexter, 725 F. Supp. 13 (D.D.C. 1989) .........................................3
United States v. Roach, 164 F.3d 403 (8th Cir. 1998) ...............................................3
United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985)..............................................6
United States v. Webster, 734 F.2d 1191 (7th Cir. 1984) ............................................6
United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993) ..............................................6
i
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 3 of 15
STATUTES & RULES
Fed. R. Civ. P. 45.................................................................................9
Fed. R. Crim. P. 16 ...............................................................................1
Fed. R. Crim. P. 17(c) ...................................................................... Passim
Fed. R. Evid. 613(b)...............................................................................7
ii
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 4 of 15
Non-parties NBC News ("NBC") and Andrea Mitchell respectfully submit this Reply
Memorandum in support of their motion to quash the subpoenas served on them by Defendant I.
Lewis Libby ("Defendant").
In this memorandum, NBC and Ms. Mitchell respond briefly to each of the specific
arguments made by Defendant in support of his contention that the various categories of
documents sought by his subpoenas comply with the requirements of relevancy, admissibility
and specificity demanded by Federal Rule of Criminal Procedure 17(c). See United States v.
Nixon, 418 U.S. 683, 700 (1974). Before turning to those specific categories, it bears emphasis
that Defendant's consolidated response to these motions ("Response") nowhere addresses the
Court's pronouncement concerning the scope of relevant evidence in this case announced from
the bench on February 24, 2006, and memorialized in the Memorandum Opinion dated March
10, 2006. See Feb. 24, 2006 Tr. at 35; Mem. Op., Mar. 10, 2006, at 1 n.3. In that ruling, the
Court resolved Defendant's analogous requests to compel the Special Counsel to produce
documents and information concerning journalists pursuant to Federal Rule of Criminal
Procedure 16. The Court held that documents of the kind addressed in the Response are not
relevant to the adjudication of the crimes charged in the indictment if they do not relate to
communications by a journalist, prior to July 14, 2003, about the wife of former Ambassador
Joseph Wilson or her employment. See id. In so holding, the Court recognized that the potential
relevance of such documents like those to which Defendant now claims to be entitled is "too
attenuated" to be "material" to the defense within the meaning of Rule 16. Feb. 24, 2006 Tr. at
35.
Rather than confront the ramifications of that ruling for the analogous documents that
Defendant now seeks pursuant to Rule 17, he chooses to ignore its plain meaning. Like the
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 5 of 15
discovery denied by that ruling, none of the documents swept up by Defendant's subpoenas to
NBC and Ms. Mitchell discuss, reference or otherwise reflect communications by them, or
anyone else, about Valerie Plame Wilson (by name or otherwise) or her employment prior to
July 14, 2003. Accordingly, for this overriding reason, none of the documents in their
possession contain relevant evidence within the meaning of Rule 17.1
In addition, as we explain briefly below, Defendant's specific arguments with respect to
each of the relevant categories of documents identified in the subpoenas fail to survive
reasonable scrutiny:
NBC Subpoena Category 3
All documents prepared at any time by Tim Russert, or by any other
employee of NBC News based in any part upon information received
from Tim Russert, that purport to describe any part of a telephone
conversation between Tim Russert and I. Lewis Libby on July 10
and/or 11, 2003, or that reflect actions or communications by any
NBC News employee during July 2003 as a result of that conversation.
As explained in its initial memorandum, NBC possesses no documents that purport to
describe any part of a telephone conversation between Defendant and Mr. Russert during which
Ms. Wilson or her employment was discussed. The only non-privileged documents in NBC's
possession that relate in any manner to communications between Defendant and Mr. Russert
were created more than a year later and mirror the contents of statements publicly released by
NBC at that time, all of which are currently available to Defendant. See Declaration of Lee
Levine ("Levine Decl.") (filed in support of Motion to Quash) Ex. A. Such documents therefore
(1) contain no information relevant to this proceeding, see Mem. Op., Mar. 10, 2006, at 1 n.3,
1
For this reason and those set forth in their initial memorandum and in the remainder of this
Reply, both subpoenas should properly be quashed in their entirety without further proceedings.
As NBC and Ms. Mitchell explained in their initial memorandum, at page 9 n.3, however, should
the Court deems it necessary and appropriate, they are prepared to produce in camera for the
Court's inspection the documents in their possession that are referenced in this Reply and in their
initial memorandum.
2
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 6 of 15
(2) are not themselves admissible in evidence, see, e.g., United States v. Cherry, 876 F. Supp.
547, 552 (S.D.N.Y. 1995); United States v. Cuthbertson, 651 F.2d 189, 195 (3d Cir. 1981), and
(3) are cumulative of information already available to Defendant in any event, see, e.g., United
States v. Poindexter, 725 F. Supp. 13, 30 (D.D.C. 1989); United States v. Roach, 164 F.3d 403,
412 (8th Cir. 1998).
Defendant's only response to this showing is, once again, to ignore it. He argues that he
"is entitled to obtain and use at trial all evidence that shows his recollection of his July 10 or 11
conversation with Mr. Russert is correct, and that it is Mr. Russert who has misrecollected or
misstated the facts." Response at 26. In that regard, he points to what he characterizes as
"NBC's carefully worded public statements," which he asserts "have never completely
disclaimed that Mr. Russert knew that Mr. Wilson's wife was employed by the CIA prior to July
14, 2003." Id. at 27. Based entirely on this "showing," Defendant contends that he is "clearly
entitled to confront Mr. Russert with any documents that may shed light on why NBC has not
declared unequivocally that Mr. Russert did not know Mr. Wilson's wife worked for the CIA
when he spoke to Mr. Libby." Id.
Let there be no mistake: the public record, including portions of Mr. Russert's grand jury
testimony that were quoted by the D.C. Circuit in a related proceeding months ago,2 make clear
2
See Levine Decl. Ex. A (NBC's public statements); In re Grand Jury Subpoena, Judith Miller,
438 F.3d 1141, 1180 (D.C. Cir. 2006) (Tatel, J., concurring in judgment) (describing and quoting
Mr. Russert's sworn testimony) (citations omitted) (brackets in original):
In his deposition, describing Plame's employment as a fact that would have been
"[v]ery" significant to him one he would have discussed with NBC management
and potentially sought to broadcast Russert stated, "I have no recollection of
knowing that [Wilson's wife worked at the CIA], so it was impossible for me to
have [told Libby] that." Asked to describe his "reaction" to Novak's July 14
column, Russert said, "Wow. When I read that it was the first time I knew who
Joe Wilson's wife was and that she was a CIA operative.... [I]t was news to me."
3
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 7 of 15
that Tim Russert did not know that Ambassador Wilson's wife worked for the CIA when he
spoke to Mr. Libby in July 2003. Not surprisingly, therefore, none of the documents in NBC's
possession contains a sentence, a phrase, a word, or a syllable that suggests otherwise.
Accordingly, under Defendant's own theory, none of the documents at issue falls within the
scope of Rule 17(c).
NBC Subpoena Category 5; Mitchell Subpoena Category 3
All documents prepared at any time by Andrea Mitchell or by any
other employee of NBC News that purport to discuss or explain the
statement by Andrea Mitchell on CNBC's "The Capitol Report" aired
October 3, 2003 . . . .
As explained in their initial memorandum, neither NBC nor Ms. Mitchell possesses any
documents arguably responsive to this request that either indicate or suggest that she, or any
other NBC employee, was aware, prior to July 14, 2003, who Ambassador Wilson's wife was or
that she was employed by the CIA. As a result, the Court's ruling in connection with
Defendant's Rule 16 motion forecloses the possibility that any responsive document could be
relevant to this case within the meaning of Rule 17.
Once again, however, Defendant ignores this reality and argues that the "fact that Ms.
Mitchell may have known about Ms. Wilson's employment prior to the Novak column would be
important to the defense" because it "makes it more likely that Ms. Mitchell shared this
information with Mr. Russert and that he in turn asked Mr. Libby if he knew it too." Id. at 28.
In other words, Defendant's contention that Ms. Mitchell's testimony is somehow relevant to
Defendant's case rests entirely on serial speculation i.e., if Ms. Mitchell knew about Ms.
Wilson and her employment prior to July 11, and if Ms. Mitchell shared that information with
Mr. Russert before he talked with Defendant, and if Mr. Russert then shared the same
information with Defendant, then her testimony would "be important to the defense." Id.
4
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No link in this chain is supported by any document in the possession of NBC or Ms.
Mitchell, and Defendant's speculation is refuted by the facts. As Ms. Mitchell has publicly
stated on multiple occasions, including in the exhibits submitted to the Court by Defendant, see
Response Exs. U & V, she did not know that Ambassador Wilson's wife worked for the CIA
prior to July 14 and did not share any such information with Mr. Russert. And, as Defendant
expressly concedes, see Response at 29, Ms. Mitchell has repeatedly and unambiguously made
this statement on the public record:
I've gone back and talked to the people that I was working with at the time. I
know that I didn't know about the wife. I knew that there was an envoy and we
were working . . . trying to find that out. All I can figure is that I misunderstood
Allen's question and screwed it up.
****
I know I didn't know about Joe Wilson's wife till after the column because when
the column came out I went to my producer and said . . . look at this . . . how the
heck did we not know that?
Response Ex. U (quoting Ms. Mitchell) (emphasis added). See also id. ("I was quite surprised to
hear about it [i.e., subsequent press characterizations of her statement on Capital Report] because
it isn't consistent with anything in my memory[.] I can't find any notes that reflect this alleged
knowledge and so I was Mutteld [sic] on the timeline[. T]hat's all I can imagine."); id. Ex. V
("The fact is that I did not know before the Novak column cause I had interviewed Joe Wilson
several times on Meet The Press and in none of those interviews did any of this come up on or
off camera.").
Under these circumstances, Defendant's suggestion that he is entitled to the documents at
issue because he "will likely call Ms. Mitchell as a witness" and will "ask her about the meaning
of her October 3, 2003 statement" on Capital Report, Response at 28, makes no logical sense.
Because Ms. Mitchell would testify that she did not know that Ms. Wilson worked for the CIA
5
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 9 of 15
prior to July 14, Defendant's only possible evidentiary use of this statement would be to attempt
to impeach her testimony. However, it is well settled that Defendant may not properly call a
witness he knows will not provide testimony helpful to his case, so that he may then evade the
requirements of the hearsay rule and put before the jury what he claims to be a prior inconsistent
statement by that witness. Such "subterfuge" is a long established "abuse" of the Federal Rules
of Evidence, and is strictly prohibited in the federal courts. See United States v. Webster, 734
F.2d 1191, 1192 (7th Cir. 1984) (Posner, J.).3
In this Circuit, that prohibition is set forth plainly in United States v. Johnson, 802 F.2d
1459 (D.C. Cir. 1986). There, a store-owner was prosecuted for possession of cocaine with
intent to distribute. To rebut his defense, the prosecution called one Halmon, who had been
arrested for cocaine possession two weeks before Johnson. See id. at 1463. Halmon gave a
signed statement to police at that time that he had been selling cocaine for Johnson. See id. In a
hearing outside of the jury's presence, Halmon acknowledged that he had made the statement,
but said that it was untrue. See id. Nevertheless, at trial, the prosecution called Halmon and,
when he refused to implicate Johnson, published to the jury Halmon's post-arrest statement. See
id. The Court of Appeals roundly condemned this tactic:
[I]t was entirely inappropriate for the prosecution to call Halmon to the stand
when it well knew that his live testimony, unlike his prior statement, would be
favorable to the defendant. It is reasonable to conclude that the prosecution called
Halmon not for any testimony he could be expected to give, but for the sole
purpose of bringing about the admission of a post-arrest statement that, as the
3
See also United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986); United States v. Zackson,
12 F.3d 1178, 1184-85 (2d Cir. 1993); United States v. Sebetich, 776 F.2d 412, 428-29 (3d Cir.
1985); United States v. Ince, 21 F.3d 576, 579-81 (4th Cir. 1994); United States v. Miller, 664
F.2d 94, 97 (5th Cir. 1981); United States v. Dye, 508 F.2d 1226, 1234 (6th Cir. 1974); United
States v. Logan, 121 F.3d 1172, 1174-75 (8th Cir. 1997); United States v. Gomez-Gallardo, 915
F.2d 553, 555 (9th Cir. 1990); United States v. Peterman, 841 F.2d 1474, 1479-80 (10th Cir.
1988); United States v. Gossett, 877 F.2d 901, 907 (11th Cir. 1989).
6
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 10 of 15
prosecution well knew or should have known, was not independently admissible.
This conduct was improper.
Id. at 1466.
As the D.C. Circuit emphasized in Johnson, "[t]here is no authority, in the Federal Rules
of Evidence or elsewhere," that permits a party to call a witness "who the party knows will not
offer any relevant evidence and then impeach that witness by introducing, under Fed. R. Evid.
613(b), an earlier, hearsay statement favorable to that party's case." Id. In fact, "the case law is
to the contrary. Impeachment evidence is to be used solely for the purpose of impeachment, and
it may not be `employed as a mere subterfuge to get before to jury evidence not otherwise
admissible.'" Id. (citing Webster, 734 F.2d at 1192). Such "bootstrapping" is entirely
"impermissible." Id.
Defendant is therefore mistaken when he asserts that he can employ such a tactic in this
case by calling Ms. Mitchell as a witness at trial and then attempting to "impeach" her testimony
by reference to the statements she made on Capital Report.4 He ranges even further afield when
he asserts that he would then be permitted to impeach that testimony through the documents at
issue, none of which suggests that she knew, prior to July 14, 2003, who Ms. Wilson was, much
less her place of employment. There is simply no proper evidentiary use to which those
documents could be put at trial and, for this reason as well, their production cannot be compelled
pursuant to Rule 17(c).
4
In addition, as Defendant concedes, courts will not entertain requests for even properly
admissible "impeachment material in advance of trial" unless it relates to a "person who is
almost certain to be a witness at trial." Response at 16 (emphasis added). Defendant effectively
concedes that Ms. Mitchell does not fall within this category and, as we demonstrate supra, the
law in fact prohibits him from calling her for the only purpose he is even contemplating doing so.
See id. at 28 (suggesting only that Defendant will "likely call Ms. Mitchell as a witness and ask
her about the meaning of her October 3, 2003 statement") (emphasis added).
7
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 11 of 15
NBC Subpoena Category 6; Mitchell Subpoena Category 4
All documents reflecting communications by any employee of NBC
News concerning former Ambassador Joseph Wilson prior to July 14,
2003, with any of the following persons: Ari Fleischer, Mark
Grossman, Eric Edelman, Bob Grenier, Cathy Martin, Joseph
Wilson, George Tenet and Bill Harlow.
Defendant's arguments in support of his request for documents "reflecting
communications by any employee of NBC News" about Ambassador Wilson with eight different
persons are especially curious. Here, Defendant argues neither that such documents will show
that Mr. Russert, Ms. Mitchell or any other NBC employee knew Ms. Wilson's identity or
employment prior to July 14, 2003, nor even that they had any relevant communications with
Defendant during this period. Indeed, Defendant could not advance that argument because NBC
and Ms. Mitchell have already made plain that they have no documents falling within this
category that relate either to Ms. Wilson or her employment. Rather, Defendant claims that he is
entitled to documents in this category "to show that administration officials . . . saw Ms.
Wilson's employment as a point unworthy of mention in connection with Mr. Wilson's story,"
which in turn purportedly "makes it more likely that Mr. Libby saw Ms. Wilson's CIA affiliation
as a sidelight as well." Response at 18-19. This tortured reasoning cannot satisfy the relevance
requirements of Rule 17(c). Defendant further speculates, apparently based on nothing more
than conjecture that each of these eight persons likely spoke to some NBC reporter, that
documents "responsive to this request may also be used to impeach" their testimony at trial.
Response at 19. If this is not the kind of "general `fishing expedition'" specifically condemned
by the Supreme Court in Nixon, 418 U.S. at 699-700, it is difficult to imagine what is.
The very breadth of this category, coupled with the painfully thin "showing" that
Defendant has now made in support of it, reinforces the conclusion that enforcement of this
portion of the subpoenas would be "unreasonable or oppressive" for purposes of Rule 17(c).
8
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 12 of 15
Where, as here, the documents sought bear no relevance to the crimes with which the Defendant
has been charged, this Court should be especially reluctant to require a news organization and
one of its journalists to divulge the content of their communications with a host of news sources
about entirely unrelated subjects. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 146 (3d
Cir. 1980) (quashing Rule 17(c) subpoena issued to television network where it constituted "a
broad request for material . . . on a very slight showing of the evidentiary nature of the material
sought"). Cf. Hobley v. Burge, 223 F.R.D. 499, 504-05 (N.D. Ill. 2004) (quashing civil
subpoenas seeking journalistic work product pursuant to Fed. R. Civ. P. 45 where enforcement
"would impose an undue burden" on a reporter by disclosing it); In re DaimlerChrysler AG Sec.
Litig., 216 F.R.D. 395, 403 (E.D. Mich. 2003) (same).
Mitchell Subpoena Category 5
All documents reflecting or referring to any conversation between you
and I. Lewis Libby during the period July 6, 2003 to October 3, 2003.
As explained in her initial memorandum, Ms. Mitchell has one document that arguably
falls within this category in her possession, i.e., handwritten notes of what could be a single
conversation she had with Defendant within the specified time frame. That document, however,
contains no information of any kind relating either to Ms. Wilson or to her employment. It is
therefore surprising that, after devoting the lion's share of his Response to the contention that his
quest for documents from NBC and Ms. Mitchell springs from his theory that they might contain
evidence that Ms. Mitchell knew Ms. Wilson's identity and employment prior to July 14 (which
Defendant speculates was then passed on to Mr. Russert), Defendant abruptly reverses course
and argues instead that "[t]he fact that Mr. Libby talked to Ms. Mitchell during the time relevant
to the indictment and did not mention that Mr. Wilson's wife worked for the CIA has obvious
relevance to this case." Response at 30 (emphasis in original).
9
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 13 of 15
Apparently, according to Defendant's "logic," the fact that a single page from a reporter's
notebook contains no information about Ms. Wilson or her employment somehow constitutes
probative evidence that he was not engaged in a "`vigorous effort' to discredit Mr. Wilson by
telling reporters about his wife's employment." Id. With all due respect, it is Defendant's
contention that "defies common sense." Id. As demonstrated supra, Ms. Mitchell has publicly
and specifically explained that she did not learn Ms. Wilson's identity or her employment from
any source prior to July 14, 2003. See pages 4-5 supra. Indeed, to our knowledge, the only
party to this case who has ever contended otherwise is Defendant. Thus, for him now to
maintain that he requires access to Ms. Mitchell's handwritten notes to demonstrate that
Defendant did not impart such information to her is more than a tad puzzling. If anything,
Defendant's sudden "about face" and multiplicity of theories demonstrate that he is engaged in
the kind of "general `fishing expedition'" that has been specifically condemned by the Supreme
Court. Nixon, 418 U.S. at 699-700 (citation omitted).
In addition, the notion that a single page of handwritten notes constitutes probative
evidence that two people never discussed a specific subject prior to a certain date would lead to
limitless discovery in this case. Under Defendant's theory, he would be entitled to subpoena the
notes of every reporter with whom he may have talked during the relevant period, ostensibly to
show that he did not tell them about Ms. Wilson either. It cannot reasonably be suggested that
Rule 17(c) authorizes Defendant to rummage through their notebooks and, for this purpose, Ms.
Mitchell is no different than any such reporter (apparently other than Ms. Miller and Mr. Cooper)
who did not learn Ms. Wilson's identity and employment from Defendant. Accordingly, there is
no credible argument that these notes satisfy the requirements of Rule 17(c).
10
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 14 of 15
CONCLUSION
For all of the foregoing reasons, and those set forth in their initial memorandum of points
and authorities, Non-Party Movants NBC News and Andrea Mitchell respectfully request that
the subpoenas issued to them by Defendant be quashed.
Dated: May 8, 2006 Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, L.L.P.
By: /s/ Lee Levine
Lee Levine (D.C. Bar No. 343095)
1050 Seventeenth Street, N.W.
Suite 800
Washington, DC 20036
(202) 508-1100
Susan E. Weiner
National Broadcasting Company
30 Rockefeller Plaza
New York, NY 10112
(212) 664-2806
Counsel for Non-party Movants NBC News and Andrea
Mitchell
11
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 15 of 15
CERTIFICATE OF SERVICE
I hereby certify that on May 8, 2006, I caused a true and correct electronic copy of the
foregoing Reply Memorandum in Support of Motion of Non-Parties NBC News and Andrea
Mitchell to Quash Subpoenas to be served by the Court's Electronic Case Filing System upon all
parties scheduled for electronic notice.
/s/ Adam J. Rappaport
Adam J. Rappaport
NEW DOCUMENT FOLLOWS
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
1
UNITED STATES OF AMERICA,
1
1
v. )
Misc. No. 1:06-MC-00169(RBW)
)
I. LEWIS LIBBY, )
)
Defendant. )
THE NEW YORK TIMES' REPLY TO DEFENDANT I. LEWIS LIBBY'S
RESPONSE TO MOTION OF THE NEW YORK TIMES
TO QUASH LIBBY'S RULE 17(c) SUBPOENA
The New York Times Company submits this Reply to Defendant I. Lewis Libby's
("Libby") Consolidated Response to Motions to Quash ("Libby Resp.").
I. Neither the Legal Authority Nor The Factual Proffer Contained In
Libby's Response Supports Enforcement Of His Rule 17(c) Subpoena
Libby's Response seeks to create the impression that The New York Times is urging
application of a test for enforcement of Fed. R. Crim. P. 17(c) ("Rule 17(c)") subpoenas that is
more stringent than the standard established in United States v. Nixon, 418 U.S. 683 (1974).
Actually, it is Libby who suggests that the Nixon criteria for enforcement of a Rule 17(c)
subpoena -- relevance, admissibility, and specificity -- should be disregarded in this case. No
doubt Libby hopes to avoid application of Nixon's requirements because, as revealed by his own
proffer of the circumstances supposedly supporting the admissibility of the subpoenaed
documents, it is now apparent that Libby has no plausible theory of relevance, much less
admissibility, for most of the documents he seeks. And, Libby's Response also fails to rebut the
authority cited in The New York Times' Motion to Quash Libby's Rule 17(c) Subpoena, and
Supporting Memorandum of Law ("'New York Times' Memorandum") showing that in camera
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 2 of 21
review is necessary to determine whether the few potentially admissible documents responsive to
the Libby Subpoena actually are admissible and should be disclosed.
A. The Cases Relied Upon By Libby Do Not Support His Contention That His
Subpoena Should Be Analyzed Under A Diluted Nixon Standard
Libby's Response begins by setting up the strawman argument that The New York Times'
Memorandum reads Nixon to require defendants to specify the "precise" content of documents
subpoenaed under Rule 17(c), and to establish "with certainty" that the document will be
admissible at trial. Libby Resp. at 3. The terms "precise" and "certainty" do not appear in The
New York Times' Memorandum, and we do not argue that Nixon erects such a formidable
standard. Rather, we agree with those decisions that use aprobability standard, i.e., whether it is
more likely than not a given document sought by a Rule 17(c) subpoena is relevant and
admissible in evidence. See, e.g., United States v. La Rouche Campaign, 841 F.2d 1176, 1180
(1st Cir. 1988) (affirming finding of likelihood that outtakes would reveal inconsistent statements
that would be admissible for impeachment); United States v. Ball, No. 99 - 20029-01 1-03, 1999
U.S. Dist. LEXIS 16417, at *6 (D. Kan.Aug. 9, 1999) ("[tlhat the requested material is
'potentially' relevant or admissible is not enough . . . . There must be a 'sufficient likelihood'
. . . .").
that the requested material is 'relevant to the offenses charged in the indictment'
Libby also complains that The New York Times misstates the Nixon requirements,
whereas he contends that cases he cites establish the true standard for enforcement of a Rule
17(c) subpoena issued to a news organization or reporter. Libby Resp. at 4-9. The decisions
cited by Libby do not support his position, however, in that these cases either: (1) involve
subpoenas for ordinary business records, rather than for newsgathering information entitled to
protection under the U.S. Constitution and the common law; (2) were decided prior to Nixon, or
otherwise did not involve the application of the Nixon criteria; or (3) actually support the
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 3 of 21
application of the Nixon criteria to trial subpoenas issued to news organizations in the very
manner demonstrated by The New York Times' Memorandum, including the requirement for an
in camera review of any relevant, specifically described records to determine if the records are
admissible, and whether the defendant's need for the records outweighs the important
constitutional and common law interests of the public and the press.
The overwhelming majority of the cases cited by Libby did not involve a subpoena issued
to a news organization or a reporter, but rather dealt with attempts by defendants to obtain
government records, non-news films, or ordinary business records from a third party. See United
States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992) (police investigative report); In re Grand Jury
Subpoena, 829 F.2d 1291, 1300 (4th Cir. 1987), rev 'd sub. nom. United States v. R. Enterprises,
Inc., 498 U.S. 292,299-300 (1991) (sexually explicit films); United States v. Haldeman 559
F.2d 3 1 (D.C. Cir. 1976) (government files); Fryer v. United States, 207 F.2d 134 (D.C. Cir.
1953) (witness'ldefendant's statements); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y.
1995) (surveillance reportsltax returns); United States v. Jackson, 155 F.R.D. 664 (D. Kan. 1994)
(health and employment records), United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991)
(prison's recordings of conversations); United States v. Poindexter, 725 F. Supp. 13 (D.D.C.
1989) (government notes). Even Libby's authority recognizes that a higher level of scrutiny is
required when a Rule 17(c) subpoena implicates constitutional concerns. See, e.g., In re Grand
Jury Subpoena, 829 F.2d at 1300 ("even when the First Amendment . . . problems raised by
subpoenas duces tecum do not, in and of themselves, rise to the level of constitutional violations,
the concerns that underlie those constitutional provisions must enter into the balancing of
interests that is required by a motion to quash under Fed. R. Crim. P. 17(c)"); Haldeman, 559
F.2d at 76 ("rules governing evidentiary discovery and production to be meticulously observed").
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 4 of 21
Several other cases cited by Libby pre-date Nixon, or otherwise do not apply the Nixon
criteria at all. For example, Libby cites United States v. Liddy, 354 F. Supp. 208,211 (D.D.C.
1972) extensively in support of his position, and even insinuates that it was decided "consistent
with Nixon." Libby Resp. at 5. In fact, Liddy was decided two years prior to Nixon and, as
explained below, its subsequent history in the District of Colombia circuit casts even further
doubt on its value as precedent on the point for which Libby cites it. Equally inapposite is the
decision in In re Grand Jury Subpoena, which was reversed by the Supreme Court on the ground
that it was error to apply the Nixon criteria to a grand jury subpoena. R. Enterprises, Inc., 498
U.S. at 299-300 ("the Nixon standard does not apply in the context of grand jury proceedings.").
Third, a number of the cases cited by Libby are in fact supportive of the position set forth
in The New York Times' Memorandum. For example, in LaRouche, the First Circuit carefully
considered the First Amendment interests of news organizations implicated by Rule 17(c)
subpoenas -- interests that Libby asserts do not exist, see Libby Resp. at 37 -- and endorsed in
camera review to protect against unnecessary disclosure of protected materials. 841 F.2d at
1180-83. Jackson, another decision relied upon by Libby, states in no uncertain terms that "[ilt
is not enough that the documents have some potential of relevance and evidentiary use." 155
F.R.D. at 667 (D. Kan. 1994); see also id. at 671 (requiring in camera review).'
1
Other decisions cited by Libby are inconsistent with cases decided in this Circuit and, therefore, are
entitled to no consideration. For example, United States v. King turned principally on its holding that
reporters enjoy no First Amendment protection whatsoever from compelled production of newsgathering
material in criminal cases. 194 F.R.D. 569 (E.D. Va. 2000). This reasoning is at odds with the District of
Columbia Circuit's decision in United States v. Ahn, 23 1 F.3d 26'37 (D.C.Cir. 2000) (recognizing
reporters' qualified privilege); see also United States v. Liddy, 478 F.2d 586,587 (D.C. Cir. 1972)
(separate opinion of Leventhal, J.) (recognizing need for balancing of "First Amendment consideration of
the importance to the newsman - and to the information of the public at large, through the press - of the
content of [an] interview obtained under a pledge of confidentiality.").
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 5 of 21
In sum, Libby does not cite any convincing authority to support his position that some
diluted version of the Nixon criteria are applicable to subpoenas issued to news organizations by
defendants in criminal cases. And, as demonstrated in The New York Times' Memorandum and
reinforced below, the Libby Subpoena simply fails the Nixon test. Five of the six document
categories in the Libby Subpoena do not satisfy one or more of the three Nixon criteria, while an
in camera review will be necessary to determine if the remaining category satisfies the Nixon
admissibility requirement, and whether the defendant's need for the records outweighs the
constitutional and common law interests implicated by the subpoena.
Libby Is Not Entitled To Immediate Production Of The Documents
B.
He Seeks In Category Three Of His Subpoena, And In Camera Review
Is Necessary To Determine Whether Disclosure of These Documents
Is Required At All
Not surprisingly, Libby begins his discussion of the materials sought fiom The New York
Times by addressing Category 3 of his Subpoena, the only one of the six categories that calls for
documents having evenpotential evidentiary value. Category 3 of the Libby Subpoena seeks
production of documents that refer to or describe specific conversations that Judith Miller had
with Libby in June-July 2003. Libby already has received from the Special Prosecutor Ms.
Miller's actual notes of these conversations, but Category 3 also encompasses references to the
Miller-Libby conversations contained in transcripts of interviews of Ms. Miller conducted by
other New York Times reporters in preparation for an article on the Miller case published on
October 16,2005.
In The New York Times' Memorandum, we demonstrated why in camera review is
necessary for the relatively few interview transcript pages, and a draft of Ms. Miller's June 16,
2005 article, that are responsive to Category 3, if and when Ms. Miller has testified as a
government witness, to determine whether Libby actually has a need for use of the statements as
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 6 of 21
impeachment material that outweighs the First Amendment interests and the common law
privilege. Id. at 24-27. However, Libby's Response fails to address in any substantive way the
cases cited by The New York Times in support of this in camera procedure. Indeed, Libby
virtually ignores the Third Circuit's decisions, on nearly identical facts, in United States v.
Cuthbertson, 630 F.2d 139, 144 (3rd. Cir. 1980) ("Cuthbertson 7') and United States v.
Cuthbertson, 651 F.2d 189, 195 (3rd Cir. 1981) ("Cuthbertson I.'); see also LaRouche
Campaign, 841 F.2d. at 1183 ("we can expect the district court in camera to balance the
competing constitutional interests, limiting disclosure of journalistic products to those cases
where their use would, in fact, be of significant utility to a criminal defendant"); United States v.
Fields, 663 F.2d 880,881 (9th Cir. 1981).
Instead of addressing this persuasive authority that requires in camera review of
journalistic materials, Libby argues that these transcripts "almost certainly" constitute admissible
evidence and, in any event, he claims that his counsel is in a better position than the Court to
detect how particular material is relevant. Libby Resp. at 17. Libby also suggests that giving
him access to the transcripts now will "avoid a dispute over such evidence [in] the middle of
trial." Libby Resp. at 16-17. These arguments are plainly wrong.
First, Libby ignores the fact that he is unable to demonstrate an actual need for any
portion of the transcript or the draft article, as opposed to a mere desire to see what these
materials contain, until Miller has testified and the impeachment value of any portion can be
assessed. Cuthbertson I, 630 F.2d at 144 (citing Nixon); LaRouche Campaign, 841 F.2d at 1180
(for impeachment materials, "the admissibility prong of Rule 17(c) cannot be fully assessed until
the corresponding witness testifies at trial."). And, like the defendant in Cuthbertson, Libby has
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 7 of 21
not identified "any use of the present materials as evidence in the trial other than for purposes of
impeachment. Cuthbertson II, 65 1 F.2d at 195..2
Second, Libby's expression of concern over potential delay occasioned by mid-trial in
camera review fails to take account of the fact that experienced trial judges make evidentiary
decisions in the middle of trial every day, often after reviewing material in camera andfor
receiving argument from counsel out of the presence of the jury. Moreover, the quantity of
material responsive to Category 3 is relatively modest, little more than a dozen pages. Libby's
references to potential appellate proceedings, Libby Resp. at 9, 17, if intended to suggest another
cause for delay, are insubstantial and unconvincing. See, e.g., LaRouche Campaign, 841 F.2d at
1183 (rejecting claim that serious mid-trial interruption could occur from in camera review and
potential appellate proceedings).3
In dismissing the need for in camera review of the transcripts of the Miller interviews,
Libby cites United States v. Smith, 135 F.3d 963 (5th Cir. 1998), United States v. Cutler, 6 F.3d
2
Libby suggests that the rough notes of one of The New York Times reporters, who interviewed Ms.
Miller for an October 16,2005 article on the Miller case, would be admissible as a business record under
Fed. R. Evid. 803(6), citing cases involving the notes of medical, financial, and court personnel. Libby
Resp. at 16 n.4. These cases are readily distinguishable in that the notes at issue were prepared by
professionals as the sole record of the events or conditions being observed. Thus, these professionals had
the incentive to make the notes with a high level of care and accuracy so that the record could be referred
back to and relied on when the professionals subsequently administered treatment, rendered advice or
otherwise took actions in the performance of their duties. In contrast, the notes sought by Libby were
taken by a reporter during an interview that was being recorded, and of which a transcript was to be made.
In these circumstances, there is no reason to expect that the reporter took detailed and complete notes,
with the intention of creating an accurate record for future reference, as opposed to making episodic notes
as a short-hand guide for follow-up questions to be asked during the interview.
3
Elsewhere, Libby insinuates that pre-trial disclosure of the requested information is necessary to avoid
delay occasioned by transcription of tapes or review of voluminous material. Libby Resp. at 3,4,9 (citing
Nixon). Here, the interviews are already transcribed, and there are only 14 transcript pages containing
potentially responsive information. By comparison, in Nixon, the Special Prosecutor subpoenaed a variety
of documents and sixty hours of taped conversations. See Nixon Whitehouse Tapes FAQs,
http://nixon.archives.gov/faq/tapes.html (last visited May 3,2006). In evident recognition of the volume
of material requested, the Supreme Court ordered pre-trial production of the tapes, stating "the analysis
and possible transcription of the tapes may take a significant period of time." Nixon, 418 U.S. at 702.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 8 of 21
However, both Smith
67 (2d Cir. 1993), and Liddy, 354 F. Supp. at 21 1. Libby Resp. at 16-17.
and Cutler involved criminal defendants' efforts to obtain video and notes of their statements to
reporters made contemporaneously with the events underlying their criminal case. Smith, 135
F.3d at 972-73; Cutler, 6 F.3d at 73. Here, only a portion of the interview transcripts at issue
recount statements made by Libby to Ms. Miller, and those interviews of Ms. Miller were
conducted over two years after the statements were actually made. Thus, there is a much more
substantial question in this case whether the Miller interview transcripts will have any
evidentiary value as impeachment material.
United States v. Liddy also involved actual tapes of statements made to the media, by an
unindicted co-conspirator and key government witness, but it is not so clear, as Libby's
Response insinuates, that the tapes were ordered produced to defendant pre-trial without any in
camera review. Chief Judge Sirica's opinion clearly contemplated that the audio tapes would be
produced in camera and that "appropriate deletions" would be made to transcripts of the tapes
before being made available to defendants at or just prior to trial, in the exercise of the Court's
discretion. Liddy, 354 F. Supp. at 217 n.35. Moreover, on emergency application to the District
of Columbia Circuit for a stay, Judge Leventhal made clear that because
pre-trial statements by a prospective witness 'ripen into evidentiary material
for purposes of impeachment if and when, and only if and when, the witness
who has made the statement takes the stand and testifies'. . . . [the transcripts]
should . . . not be disclosed to counsel prior to completion of the direct testimony
of [the witness and] until the trial judge has made inquiry of the possibility of
less drastic means. . . .
United States v. Liddy, 478 F.2d at 587-88 (separate opinion of Leventhal, J.) (citations omitted).
Judge Leventhal's reasoning certainly should trump Libby's naked claim that his counsel, and
not the Court, can now determine that notes and transcripts of the Miller interviews are
admissible in his defense. Libby Resp. at 17.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 9 of 21
In sum, Libby has failed to refute or distinguish the authority cited'by The New York
Times in support of its position that in camera review is required to ascertain whether the
Category 3 materials have actual impeachment value and Libby's need for the materials
outweighs The New York Times' First Amendment interest and common law privilege. Thus, the
procedure proposed in The New York Times' Memorandum for the submiision and in camera
review of these materials should be followed. Id. at 26-27.
C. Libby's Response Demonstrates There Is No Plausible Theory Of
Admissibility For Documents Requested in Categorv 6 of His Sub~oena
Libby next discusses Category 6 of his subpoena, which seeks documents reflecting
communications between New York Times personnel, and eight enumerated individuals,
"concerning former Ambassador Joseph Wilson prior to July 14,2003." Libby's arguments
regarding the application of the Nixon criteria to this category of documents make clear that he
has no plausible theory of admissibility for most of the documents covered by this request and
that, rather than being targeted and specific, Category 6 is a wide net in search of a catch.
Libby admits that not all of the eight individuals will be government witnesses; he
predicts only that "several" will be. Libby Resp. at 17. The others "may be called by Mr. Libby
himself," although the Court and The New York Times are left to speculate about which
individuals may testify for the defense. Id.; see also id. at 21 ("other persons named in Request 6
are also likely to be key witnesses, whether called by the prosecution or the defense."). Libby
has articulated no theory of admissibility for New York Times records of communications with
individuals to be called by the defense. At this time, Libby has only proffered that Ari Fleisher
and Marc Grossman will be government witnesses. Libby Resp. at 19-21. Thus, the Libby
Subpoena should be quashed insofar as it seeks records of communications with any of the other
six individuals enumerated in Category 6.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 10 of 21
In all events, Libby's rationale for the relevance and admissibility of the information
called for by Category 6 of his subpoena does not survive even minimal scrutiny. Libby argues
that such documents will "help to show that administration officials - employed by the CIA, the
State Department, and the White House (including the OVP) - saw Ms. Wilson's employment as
a point unworthy of mention in connection with the Wilson story." Libby Resp. at 18; see also
id. at 19 n.5 ("evidence that [Assistant to the Vice President for Public Affairs Cathie] Martin did
not relay that information [about Ms. Wilson] is relevant for the reasons given above."). In fact,
The New York Times does not possess records of communications with any such "administration
officials" concerning Joseph Wilson during the time period prescribed in Category 6. Even if it
did possess these records, the rationale for admissibility offered by Libby is a dubious one --
whether other administration officials thought Valerie Plame's employment was unworthy of
mention in the Wilson story says nothing at all about Libby's state of mind.
Thus, Category 6 of the Libby Subpoena should be quashed in its entirety.
D. Libby's Response Falls Well Short of Demonstrating That Categories
1,2,4 And 5 Of His Subpoena Satisfv The Nixon requirements
The Libby Response has relatively little to say about Categories 1,2,4 and 5 of the
Libby Subpoena. Regarding the first two categories, Libby argues that he may use the
documents "to question Ms. Miller's New York Times colleagues about what they may have
known about Ms. Wilson and whether they may have shared that information with Ms. Miller
Cprior to June 23,20031.'' Libby Resp. at 22. However, Libby has no basis for expecting that
any other New York Times reporter will be called to testify for the government, and he has
identified no non-impeachment theory of admissibility for other reporters' notes of conversations
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 11 of 21
with their sources." Certainly, Rule 17(c) does not permit a defendant to subpoena documents
for use to obtain leads to other documentary evidence or information. See, e.g., United States v.
Cutler, 6 F.3d at 74 (quashing subpoena for reporters' notes of conversations with government
officials that defendant sought use to prove that statements violating court order came from
sources other than defendant); United States v. Cherry, 876 F. Supp. 547,553 (S.D.N.Y. 1995)
(citing other cases). In any event, The New York Times does not possess any records indicating
that its reporters, other than Judith Miller, talked to sources about Valerie Plame.
As for Ms. Miller, her first-person account of her grand jury appearance, published on
October 16,2005, acknowledges that she had "discussed the Wilson-Plame connection with
other sources [but] could not recall any by name or when those conversations occurred." See
Libby Resp., Exhibit D at 6. Libby has not asserted, and he would have no basis for doing so,
that he needs the transcripts of interviews of other New York Times reporters, or drafts of the
October 16,2005 articles, on the ground that those materials reflect contradictory statements
regarding whether Ms. Miller spoke to other sources about Ms. Plame.
Libby next argues that he needs documents responsive to Category 4 of his subpoena to
challenge Judith Miller's credibility by proving that there is a dispute between Ms. Miller and the
then New York Times Washington Bureau Chief, Jill Abramson, about whether Ms. Miller
recommended pursuit of a story about Joseph Wilson's trip to Niger. Libby Resp. at 23-24.
According to New York Times articles appended to the Libby Response, Miller recalls that she
did request permission to pursue such a story, Libby Resp., Ex. D at 7, while Ms. Abramson says
Libby contends that the New York Times is speculating about who will be called to testify as a
government witness. Libby Resp. at 23. If Libby has a basis for proffering that any New York Times
reporter, other than Judith Miller, may be called as government witness, it was incumbent upon him to
proffer that information in his Response. Instead, it is Libby who speculates that other reporters might
possibly be called to testify by the government.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 12 of 21
that Miller did not. Libby Resp., Ex. E at 5. Thus, Libby is already aware of the existence of a
dispute on this point and is in possession of documentary information that he can use to illustrate
or emphasize it. Libby has not asserted, and he would have no basis for doing so, that he needs
the transcripts of interviews of Ms. Miller or Ms. Abramson, or drafts of the October 16,2005
articles, on the ground that those materials reflect contradictory information received from either
of them about this dispute.5
Finally, Libby argues that Category 5 of his Subpoena -- which seeks information
regarding a conversation recounted to Vanity Fair by Ms. Miller, in which she reportedly told
New York Times Assistant General Counsel George Freeman that she had spoken to many people
in government about Valerie Plarne -- will be "powerful evidence" because it "may" identify the
government officials to whom Ms. Miller spoke about Plame. Libby Resp. at 24. Libby offers
speculation that some New York Times document reveals the identity of a government official,
other than Libby himself, with whom Ms. Miller discussed Valerie Plame. In fact, there is no
such record. As Miller has stated publicly in describing her grand jury testimony, she simply
cannot recall who else she had discussions with regarding Valerie Plame, or when those
discussions occurred. Libby Resp., Ex. D at 6. To the extent that the transcripts of interviews of
other New York Times reporters, or drafts of the October 16,2005 articles, merely recount this
same statement by Ms. Miller, the materials have no evidentiary value whatsoever and, therefore,
a subpoena for such materials does not satisfy the Nixon admissibility requirement.
5
In all events, the portions of the transcripts of Ms. Miller's interviews containing information responsive
to this and other Subpoena categories will be submitted for in camera inspection by the Court, pursuant to
the procedure proposed in The New York Times' Memorandum. Id at 27. Should Libby's counsel cross-
examine Ms. Miller about whether she recommended pursuit of a story about Joseph Wilson's trip to
Niger, any statement in the interview transcripts on that subject at odds with her trial testimony would
then be subject to production as impeachment material.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 13 of 21
E. Libby Apparently Has Conceded That His Subpoena Fails To Satisfy
The Nixon Requirements With Respect To Transcripts Of Interviews
Of Individuals, Other Than Judith Miller, Conducted In Preparation
For The October 16,2005 Article Regarding The Miller Case, Or For
Drafts Of That Article
It should be recognized that, to the extent that the Libby Subpoena called for the
production of draft New York Times news articles, Libby seems to have abandoned his effort to
obtain these materials. Libby's extensive discussion of the basis for the various categories of his
Subpoena, Libby Resp. at 15-24, contains no explanation whatsoever as to how any request for
draft New York Times articles satisfies Nixon's relevancy, admissibility and specificity criteria.
Also conspicuously absent from the Libby Response is any justification for disclosure of
transcripts of interviews of New York Times personnel, other than Judith Miller, and of other
sources for information gathered for the October 16,2005 article regarding the Miller case.
Those transcripts are responsive to Libby's Subpoena only insofar as they reflect recollections by
others of what Ms. Miller said, or understandings of others regarding what Ms. Miller did, in
June-July of 2003. Such second-hand accounts have no evidentiary value, a fact apparently
recognized by Libby given the absence of any argument to the contrary in his Response.
Significantly, Libby recounts at great length, and in exquisite detail, all of the information
he has obtained through public sources, and from the Special Prosecutor, casting doubt upon the
accuracy of Ms. Miller's recollection of certain matters. Libby Resp. at 11-15. And Libby also
will obtain even more information with potential impeachment value once the Special Prosecutor
turns over the grand jury testimony of Ms. Miller, Federal Bureau of Investigation reports of
Miller interviews, and any other Section 3500 material that may exist. Libby's possession or
access to this extensive collection of prior statements by Ms. Miller belies the notion that Libby
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 14 of 21
could demonstrate need for the hearsay accounts of other New York Times personnel, and of
sources, contained in the transcripts of interviews in preparation for the October 16,2005 article.
11. The Procedure Proposed By The New York Times For In Camera Review Of The
Few Responsive And Potentially Admissible Documents Is Fully Supported By The
Case Decisions Of This Circuit And Other Courts
Libby contends that courts in this Circuit do not recognize any First Amendment interest,
or a common law privilege, that affords news organizations or reporters any protection from
Rule 17(c) trial subpoenas. In doing so, Libby ignores both the thirty years of jurisprudence that
followed the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972) and the clear
language of several of the cases on which he relies. Libby also resorts to charging that The New
York Times is seeking to quash the subpoena in order to "deprive" him evidence relevant to his
innocence. Libby Resp. at 38-39. But this hyperbole cannot obscure the fact that most of the
information sought by the Libby Subpoena, rather than being exculpatory, is irrelevant and
inadmissible, and that rather than "depriving" Libby of information, The New York Times
proposes to submit the few potentially admissible documents responsive to Libby's request for in
camera review. The legal authority identified in The New York Times Motion and supporting
Memorandum requires, through the mechanism of in camera review, a balancing of its important
constitutional and common law interests against Libby's constitutional right to a fair trial.
A. The Law Affords First Amendment Protection To News
Organizations And Reporters Served With Rule 17(c) Subpoenas
Libby is simply incorrect in asserting that courts of this Circuit have interpreted
Branzburg v. Hayes, 408 U.S. 665 (1972) to hold that news organizations and reporters served
with a Rule 17(c) subpoena have no cognizable First Amendment interests. To the contrary, this
Circuit has limited Branzburg to its facts in ruling that reporters have no First Amendment
protection to withhold evidence in response to a grandjury subpoena. "While some would read
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 15 of 21
the absolute language of the Supreme Court as foreclosing the possibility of any [First
Amendment privilege] under any circumstance, our court, among others, has limited the
applicability of the Branzburg precedent to the circumstances considered by the court in
Branzburg - that is, the context of a criminal proceeding, or even more specifically, a grand jury
subpoena." Wen Ho Lee v. Dep 't o Justice, 4 13 F.3d 53,58 (2005). Both Branzburg and this
f
Circuit's recent decision in In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1141
(D.C. Cir. 2006), modzjjing 397 F.3d 964 (D.C. Cir. 2005), involved reporters who were
considered eyewitnesses to crimes being investigated by the grand jury who attempted to quash
subpoenas in order to protect confidential sources. Miller itself expressly recognized the limited
reach of Branzburg: "the Supreme Court decided in Branzburg that there is no First Amendment
privilege protecting journalists fiom appearing before the grandjury . . . ,or otherwise providing
evidence to a grandjury. . . ." Miller, 397 F.3d at 970 (emphasis supplied).
In contrast, in cases involving a defendant's issuance of a trial subpoena to a news
organization or reporter, courts have consistently recognized that a First Amendment privilege
survived Branzburg. As the multitude of cases cited in the New York Times ' opening brief make
clear, the courts of this Circuit and elsewhere routinely consider, with great care, the First
Amendment implications of trial subpoenas issued to the media in criminal cases. See, e.g.,
United States v. Ahn, 23 1 F.3d 26,37 (D.C. Cir. 2000); United States v. LaRouche Campaign,
841 F.2d at 1182; United States v. Caporale, 806 F.2d 1487 (1 lth Cir. 1986); United States v.
Burke, 700 F.2d 70, 77-78 (2d Cir. 1983); Cuthbertson 11,651 F.2d at 195-96; United States v.
Pretzinger, 542 F.2d 5 17 (9th Cir. 1976); United States v. Hubbard, 493 F. Supp. 202,205
(D.D.C. 1979).
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 16 of 21
Libby attempts to distinguish Ahn and Hubbard on the ground that these cases involved
defendants' issuance of subpoenas to news organizations in connection with plea and
suppression proceedings, respectively, and not for production of evidence at trial. Libby Resp. at
40. Even as distinguished on this ground, these cases certainly do not support Libby's position
that "a reporter's privilege can only apply in civil cases." Id. at 41. Moreover, Libby offers no
principled reason why courts would recognize the need to weigh First Amendment interests of
news organizations when their documents are subpoenaed for certain critical stages of criminal
trial proceedings, such as those at issue in Ahn and Hubbard, but would find -- as Libby argues is
the case -- that those First Amendment interests simply do not exist when a defendant seeks
media material in preparation for trial.6
In counterpoint to the considerable persuasive authority cited by The New York Times,
Libby offers only United States v. Smith, United States v. Cutler, and In re Shain, 978 F.2d 850
(4th Cir. 1992). For the reasons previously discussed, see above at 7, Smith and Cutler are
readily distinguishable on their facts. And courts in the Fourth Circuit have interpreted Shane as
using "both the language of privilege and protection," rather than extending to trial proceedings
the Branzburg rejection of the reporters' privilege in the grand jury context. See, e.g., King, 194
F.R.D. 569, 583-84 (E.D. Va. 2000); see also Shane, 978 F.2d at 854 (Wilkerson, J., concurring
in the judgment) (requiring balancing of First Amendment interests and defendant's need for the
information).
The very cases relied upon by Libby in his Response belie his position that the reporters'
privilege does not exist for materials subpoenaed by a defendant to prepare for trial. For
Libby also attempts to distinguish Hubbard on the ground that the court there concluded that the
evidence subpoenaed was "hearsay," "merely cumulative," and "less than the best evidence available."
Id. at 40. Yet, as demonstrated above, virtually all of the documents sought by Libby are likewise
hearsay, cumulative and far from the best evidence. See discussion above at 9-12.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 17 of 21
example, in United States v. Liddy, Chief Judge Sirica considered a challenge to a tailored
defense subpoena that sought only tape recordings of a newspaper's interview with a key
government witness. The confidential nature of the recordings was in some question because a
copy of it had actually been given by the newspaper to the witness himself. Still, Chief Judge
Sirica carefully considered the First Amendment implications of enforcing the subpoena and
adopted a procedure remarkably similar to the one proposed here by the New York Times.
Specifically, he directed the newspaper to produce the tape recording in chambers for preparation
of a stenographic transcript for the Court's review and possible redaction before disclosure to
defendant's counsel at trial. Liddy, 354 F. Supp. at 217 n.35. Moreover, as previously
mentioned, on appeal Judge Leventhal expressed the view that there should be no disclosure to
Liddy's counsel until after the government witness testified. Liddy, 478 F.2d at 588.
Libby also relies upon LaRouche, a case that involved facts quite different than those
present here. The defendant there subpoenaed film outtakes of a news interview of a government
witness who had been paid to provide the interview. LaRouche Campaign, 841 F.2d at 1177-78.
Some of the statements in the interview paralleled testimony given by the witness when he
testified for the government in a related prosecution. Despite the likelihood that information in
the outtakes had already been disclosed in the public record, the LaRouche court still found
necessary the "sensitive district court conduct of [an] in camera review[] to respond to the
generalized First Amendment concerns that would be triggered by too easy and routine a resort
to compelled disclosure of nonconfidential material." Id. at 1183.
Finally, Libby completely misreads Supreme Court authority on the issue of editorial
privilege . Contrary to Libby's assertion, Libby Resp. at 41, Herbert v. Lando, 441 U.S. 153
(1979) does not support the proposition that there is no editorial privilege in criminal
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 18 of 21
proceedings. The plaintiff in that defamation case was a public figure, and therefore plaintiff
was required to prove that the media defendants published defamatory material with actual
malice. The Supreme Court decided that, in these particular circumstances, defamation plaintiffs
could obtain through discovery editorial materials that might shed light on whether defendants
acted with actual malice. Id. at 176. Lando has never been interpreted in this Circuit to have
held that newsgathering entities have no editorial privilege at all when subpoenaed in criminal
cases. The only other case cited by Libby for this remarkable proposition, Riley v. City of
Chester, 612 F.2d 708 (3rd Cir. 1979) is not even a criminal case. In all events, as previously
discussed, Libby appears to have abandoned his effort to obtain the draft news articles which are
protected by The New York Times editorial privilege. See above at 12-1 3.
Libby's Suggestion That The Relief Requested By The New York Times
B.
Will Deprive Him Of Evidence Necessary To Prove His Innocence Is Hyperbole
And Fails To Address Squarely The Reasonableness Of The Procedure Proposed
To Balance The Competing Interests In this Case
Despite Libby's insinuations to the contrary, The New York Times' motion to quash does
not seek to withhold eyewitness or any other kind of substantive evidence from the trier of fact.
All the verbiage in Libby's Response regarding the New York Times' attempt to use the
journalists' privilege to "trump" his right to a fair trial may well be intended to obscure the fact
that Libby already has received the few New York Times' records with any true evidentiary value
-- the contemporaneous notes of Judith Miller that recount statements Libby made to her in June-
July 2003 -- and that the Libby subpoena actually attempts to reach records of interviews and
drafts of an article prepared over two years after the events underlying the Indictment. Rather
than seeking to "deprive" Libby of evidence, Libby Resp. at 38-39, the New York Times asks
only that this Court accept in camera the limited materials sought by Libby's Subpoena that
arguably fall within the scope of Rule 17(c) to determine whether the material actually has
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 19 of 21
impeachment value and should be turned over to Libby's counsel following the trial testimony of
the government witness to which the material relates. As the cases cited by Libby himself make
clear, this in camera review procedure routinely used by federal courts minimizes or eliminates
the undeniable chilling effect such subpoenas have on those news gathering activities so
important to this nation's free and vibrant press.
In short, Libby is plainly wrong in asserting that there is no First Amendment protection
available in this Circuit for the unpublished material of news organizations and reporters
subpoenaed by defendants in criminal case. The in camera review process routinely used by
courts in this Circuit and others provides a mechanism for assuring the proper balance between
the well-established First Amendment interests of newsgatherers, and the constitutional rights of
defendants. Libby's response fails to offer any case authority or valid reasoning for his position
that in camera review is not appropriate in these circumstances.
Libby' Characterization Of The Common Law Reporters' Privilege
C.
As "New'' Ignores Well-Settled Statutory And Judicial Authority
Libby deals with The New York Times' discussion of the reporters' privilege grounded in
the common law, see New York Times' Memorandum at 21-24, by pretending that privilege does
not exist. In arguing that the Court "should not recognize a new reporters' privilege," Libby
Resp. at 41-42, Libby has chosen to ignore altogether Judge Tatel's exacting analysis of the
issue in In Re: Grand Jury Subpoena, Judith Miller, 438 F.3d at 1164-72. Libby's
characterization of the privilege as non-existent simply cannot be squared with "'reason and
experience,' as evidenced by the laws of forty-nine states and the District of Columbia, as well as
federal courts and the federal government. . . ." Id. at 1172.
Perhaps recognizing that pretense regarding the existence of the reporter's privilege will
not survive this Court's scrutiny, Libby returns to the familiar refrain that his interest in
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 20 of 21
"establishing his innocence" outweighs the public policy reasons that support recognition and
protection of reporters' confidences. Libby Response at 42-44. Libby insists, as he does
throughout his Response, that compelling reporters to disclose confidential information will
"impose no undue burden on newsgathering" and that any resulting harm to newsgathering is
merely "generalized." Id. at 43. These notions that little harm comes fiom compelling reporters
to become witnesses and to divulge confidential information, and that news organizations like
The New York Times should have rights no greater than any other corporate citizen when served
with a subpoena, are simply Orwellian. Our courts have long-recognized that the rights of every
citizen are intertwined with the preservation of a fiee press, and that a free press cannot function
if its investigative and editorial work must be performed under circumstances where the media
can be used by litigants and government investigators to achieve litigation goals. As this Circuit
acknowledged in Zerilli,
[tlhe press was protected so that it could bare the secrets of government and
inform the people. Without an unfettered press, citizens would be far less able to
make informed political, social and economic choices. But the press' function as a
vital source of information is weakened whenever the ability of journalists to
gather news is impaired.
Zerilli, 656 F.2d at 710-1 1.
In sum, the common law reporters' privilege is not new, and the interests that it protects
are substantial. Libby's need for particular documents sought from The New York Times must be
balanced against those interests on a document-by-document basis, and a generalized expression
of a desire by Libby to "prove his innocence" should not be accepted as a substitute for
demonstration of need on a particularized basis.
Case 1:06-mc-00169-RBW Document 6 Filed 05/08/2006 Page 21 of 21
CONCLUSION
For the foregoing reasons, the Court should quash or modify the subpoena issued to The
New York Times Company.
Respectfully submitted,
IS/ Charles S. Leeper
Charles S. Leeper (#3 10367)
Mary E. Kohart
DRINKER BIDDLE & REATH LLP
1500 K Street, N.W.
Suite 1100
Washington, D.C. 20005
Telephone: (202) 842-8800
Facsimile: (202) 842-8465
George Freeman
Assistant General Counsel
THE NEW YORK TIMES COMPANY
229 W. 43rd Street, 12th Floor
New York, NY 10036
Attorneys for The New York Times Company
May 8,2006
NEW DOCUMENT FOLLOWS
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
) 1:06-mc-00128-RBW
v. )
) (CR. No. 05-394 (RBW))
I. LEWIS LIBBY, )
also known as "Scooter Libby" ) Oral argument requested
)
TIME INC.,
Movant.
REPLY BRIEF OF TIME INC. IN SUPPORT OF ITS
MOTION TO QUASH OR MODIFY
Time Inc. ("Time") respectfully submits this reply brief in support of its motion to quash
or modify the subpoena issued to it by Defendant I. Lewis "Scooter" Libby.
INTRODUCTION
Mr. Libby's brief in opposition ("Opp.") confirms his intent to conduct a fishing
expedition through Time's files for documents that may or may not exist, and that would have no
relevance to the issues in this case in any event. This tactic is prohibited by Federal Rule of
Criminal Procedure 17, which provides that subpoenas duces tecum may not be used as a way to
conduct discovery. Moreover, Rule 17's requirements of relevance, admissibility and specificity
must be strictly applied where, as here, significant First Amendment interests are threatened--an
argument made in Time's motion to quash, and one that Mr. Libby's brief largely ignores. Even
if Mr. Libby's subpoena satisfied the requirements of Rule 17--which it plainly does not--it
demands documents protected by the reporter's privilege under the First Amendment and
common law, and must be quashed or modified for that reason as well.
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 2 of 14
ARGUMENT
I. THE SUBPOENA MUST BE QUASHED OR MODIFIED BECAUSE IT IS A
DISCOVERY SUBPOENA THAT SEEKS DOCUMENTS THAT ARE NOT
RELEVANT.
A. Mr. Libby Misstates The Governing Legal Standard.
Mr. Libby's brief sets forth a sweeping, expansive, and fundamentally incorrect
interpretation of Federal Rule of Criminal Procedure 17(a). Under his view, "it is sufficient for a
defendant to explain what he reasonably believes to be contained in the documents sought, and
why that material may be relevant to his defense." Opp. at 5 (quotation and punctuation
omitted).
Not so. Rule 17(a) requires parties to identify with specificity the precise documents they
seek, demonstrate that they would be admissible, and establish relevance. It does not entitle a
party to engage in discovery--i.e., to demand the production of broad categories of documents in
hopes of finding a single document that might have relevance, or that might lead to the discovery
of relevant documents. See United States v. Nixon, 418 U.S. 683, 698-99 (1974) ("the subpoena
duces tecum in criminal cases . . . was not intended to provide a means of discovery"); United
States v. Brooks, 966 F.2d 1500, 1505 (D.C. Cir. 1992) (affirming the quashing of subpoena
duces tecum where the defendant "was improperly trying to use the subpoena as a discovery
tool"); United States v. Haldeman, 559 F.2d 31, 75 (D.C. Cir. 1976) (Rule 17(c) "is not a
discovery device"). Cf. Fed. R. Civ. P. 26(b).
The very cases Mr. Libby cites to support his position actually undercut it. Those cases
demonstrate that, to satisfy Rule 17's standards of relevance, admissibility and specificity, a
subpoena must be narrowly drawn:
· In United States v. LaRouche Campaign, 841 F.2d 1176, 1177 (1st Cir. 1988), the
court deemed the defendant's subpoena sufficiently specific under Rule 17 when
2
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 3 of 14
it was limited to "`outtakes' (videotaped material not broadcast) of an interview
with a prospective key witness."
· In United States v. Poindexter, 725 F. Supp. 13, 28-29, 30 (D.D.C. 1989), the
court rejected "the use of trial subpoenas duces tecum as a supplemental discovery
device," and required the defendant to "submit[ ] to the Court subpoenas duces
tecum for specific, relevant documents" (emphasis added).
· In United States v. Haldeman, 559 F.2d 31, 75 (D.C. Cir. 1976), the court
affirmed the quashing of the defendant's trial subpoena, emphasizing that Rule
17(c) "is not a discovery device" and "confines a subpoena duces tecum to
admissible evidence."
· In United States v. King, 194 F.R.D. 569, 575 (E.D. Va. 2000), the defendant
subpoenaed "the unedited recordings, and the interview notes" of a television
reporter's interview of a specific witness, as well as--more generally--"any other
recordings of statements by or conversations with other known or potential
witnesses to this case." Although the district court enforced the subpoena as to
the specified materials concerning the one identified witness, it modified the
subpoena by not requiring compliance with the generalized request for "any
other" materials concerning other witnesses.
Mr. Libby mischaracterizes the court's holding in United States v. Noriega, 764 F. Supp.
1480 (S.D. Fla. 1991). Purporting to quote from that decision, Mr. Libby's brief states: "under
the law, it is sufficient for a defendant to explain what he `reasonably . . . believe[s] to be
contained in the documents sought,' and why that material may be relevant to his defense." Opp.
at 5 (ellipsis and brackets in original). The passage from Noriega reads, in full, "[i]f the moving
3
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 4 of 14
party cannot reasonably specify the information contained or believed to be contained in the
documents sought but merely hopes that something useful will turn up, this is a sure sign that the
subpoena is being misused." 764 F. Supp. at 1493 (emphasis added). The emphasized language
is omitted from Mr. Libby's brief and replaced with an ellipsis. Thus, while Mr. Libby cites
Noriega to support his position that courts "have rejected a benchmark" of specificity and
particularity, Opp. at 5, his brief actually deletes the word "specify" from the court's opinion.
As shown below, it is clear that Mr. Libby is casting an overbroad net in "hopes that
something useful will turn up," Noriega, 764 F. Supp. at 1493, and his subpoena should therefore
be quashed or modified.
B. The Subpoena Seeks Irrelevant Documents And Infringes On First
Amendment Interests.
Mr. Libby has issued a discovery subpoena, in that he is seeking to learn about
communications that may have occurred and documents that may exist. He hopes to drag a wide
net over all documents in Time's possession and see what might turn up. Rule 17(c) does not
allow this.
The documents Mr. Libby demands from Time are far afield from the issues relating to
Time raised by the Indictment: whether Mr. Libby testified falsely about his conversation with
Matthew Cooper on July 12, 2003. Based on Time's reasonable searches for responsive
documents to date, and aside from documents it has already produced to the Special Counsel,
Time does not have any (1) documents concerning Mrs. Wilson's CIA status; (2) documents
concerning conversations by Time employees with any government official about the Wilsons;
or (3) contemporaneous documents reflecting Mr. Cooper's conversation with Mr. Libby
prepared at or around the time that conversation occurred. The only documents Time has that
4
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 5 of 14
are even arguably responsive are materials reflecting conversations between a reporter and
Mr. Wilson, and drafts and internal correspondence concerning the TIME stories "A Question of
Trust" (July 21, 2003), "What I Told the Grand Jury" (July 25, 2005) and "What Scooter Libby
and I Talked About" (November 7, 2005). 1
In fact, Mr. Libby already possesses the documents concerning the actual issues raised by
the Indictment. He has obtained all of the documents that were produced by Time in response to
the Special Counsel's broad request for
Any and all documents (including, but not limited to, notes, memos,
emails and draft articles) reflecting conversations between Matthew
Cooper and official source(s) prior to July 14, 2003, concerning in any
way: former Ambassador Joseph Wilson; the 2002 trip by former
Ambassador Wilson to Niger; Valerie Wilson Plame a/k/a Valerie Wilson
a/k/a Valerie Plame (the wife of former Ambassador Wilson); and/or any
affiliation between Valerie Wilson Plame and the CIA.
See Opp. at 34 n.10 (admitting that "[t]he Special Counsel has provided the defense with
documents previously subpoenaed from Time and Mr. Cooper," but insisting that the Special
Counsel's subpoena was of "limited scope"). 2 Mr. Libby also possesses the most direct
evidence of Mr. Cooper's recollection of their conversation: the transcript of Mr. Cooper's
testimony before the grand jury. Mr. Libby's demand for additional documents is procedurally
improper: he has issued what are plainly discovery requests for information that he speculates
1 With regard to Request No. 5, Time will produce the unredacted version of the document
Bates-stamped MC 0043-44, which has previously been produced to the Special Counsel.
2 Mr. Libby is mistaken in suggesting, Opp. at 34, that Matthew Cooper maintained a special
"Scooter Libby file" that has not already been produced. The documents to which Mr. Libby
appears to be referring have already been produced to the Special Counsel, and turned over to
Mr. Libby.
5
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 6 of 14
might exist, relating to issues that he thinks might arise, based on defenses that he might raise if
he can find evidence to support them. Rule 17 does not permit this approach.
Mr. Libby asserts that "Time does not deny that documents prepared or received by
Mr. Cooper are relevant." Opp. at 32. But this misstates Time's position. Time's motion to
quash expressly stated that "the subpoena demands documents that have little to no relevance to
the allegations and issues in this case," and cited, as a particularly egregious example, documents
created or received by persons other than Matthew Cooper. Motion at 4. The fact that Time
emphasized the irrelevance of documents that do not involve Matthew Cooper obviously does
not amount to an admission that all documents involving Mr. Cooper are relevant. 3
Although Mr. Cooper is the only Time employee identified as a potential witness,
Mr. Libby asserts that he is entitled to know what other reporters and editors at Time knew about
the Wilsons on the theory that "evidence that Ms. Wilson's CIA affiliation was known outside
the intelligence community is critical to the defense." Opp. at 7. But as Time pointed out in its
motion, this theory has no stopping point. Rule 17(c) does not authorize Mr. Libby to conduct a
search through the files of reporters and the news media on the ground that he is entitled to any
information concerning the Wilsons possessed by persons "outside the intelligence community."
Similarly, although Mr. Libby cites a Newsweek article as authority for his claim that "what
Mr. Cooper had learned about Ms. Wilson was clearly a topic of conversation in Time's
Washington bureau," Opp. at 33, this hearsay article, published in April 2006, concerns
3 Mr. Libby's suggestion that footnote 3 of this Court's March 10, 2006 order forecloses any
relevance challenge to documents involving Mr. Cooper is misplaced. This Court's order did
not involve the instant subpoena duces tecum, which is governed by the strict relevance
standards of Rule 17(c), and it is unlikely that even Mr. Libby would take the position that
any document in Time's possession that involves Mr. Cooper is per se relevant to this case.
6
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 7 of 14
Mr. Cooper's conversations with Karl Rove, not Mr. Libby, and in any event describes events
that post-dated Mr. Cooper's conversation with Mr. Libby by many months.
Mr. Libby's demand for documents reflecting what other reporters knew about the
Wilsons is apparently intended to support his defense that many reporters in Washington knew
about Mrs. Wilson's CIA affiliation and were discussing it. According to the Indictment,
Mr. Libby told the FBI that "[d]uring a conversation with Matthew Cooper of Time magazine on
July 12, 2003, [he] told Cooper that reporters were telling the administration that Wilson's wife
worked for the CIA." See Indictment, Count 3, ¶ 2. But Mr. Libby has never alleged, and
apparently does not claim, that any reporter at Time (other than Mr. Cooper) ever discussed the
Wilsons with him. Mr. Libby's generalized assertion that the Wilsons were a topic of discussion
among Washington reporters is not a sufficiently specific basis for a Rule 17 subpoena to Time.
Indeed, Mr. Libby's approach would circumvent Rule 17's careful limits on the scope of
subpoenas duces tecum, and would effectively nullify Nixon's requirements of relevance,
specificity and admissibility.
Mr. Libby repeatedly asserts that the documents he seeks "may assist in showing the
evolution of [Mr. Cooper's] pro-Wilson bias." See, e.g., Opp. at 34, 35. But the suggestion that
Mr. Cooper was prompted by a "pro-Wilson bias" to give inaccurate testimony to the grand jury
about his conversation with Mr. Libby is speculative and absurd. Mr. Cooper fought to protect
Mr. Libby's identity as his source, refusing to testify and going into contempt of court. He was
prepared to go to jail to protect Mr. Libby's confidentiality and only agreed to testify once
Mr. Libby explicitly granted him permission to do so. The notion that Mr. Cooper had a "pro-
Wilson" bias--and, by implication, an "anti-Libby" bias--that caused him to give inaccurate
testimony is utterly unsupported and contrary to the facts and common sense. This farfetched
7
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 8 of 14
conspiracy theory cannot justify Mr. Libby's subpoena seeking draft articles written two years
after the events in question.
Finally, Mr. Libby largely ignores the fact that the documents he is demanding--
including drafts of articles, unpublished notes of reporters, and other documents created during
the newsgathering and editorial process--are entitled to heightened protection under Rule 17(c)
because they implicate strong First Amendment interests. Mr. Libby takes the position that the
only relevant interest is his interest in discovering documents and preparing his defense. But
courts have made clear that the First Amendment interests of the party being subpoenaed must be
considered. See In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1300 (4th
Cir. 1987) ("the concerns that underlie [the First Amendment] must enter into the balancing of
interests that is required by a motion to quash under Fed. R. Crim. P. 17(c)"); see also United
States v. R. Enterprises, Inc., 498 U.S. 292, 303 (1991) (directing court of appeals to consider
whether First Amendment interests require heightened scrutiny of grand jury subpoena under
Rule 17(c)).
C. The Subpoena Cannot Be Enforced On The Ground It Seeks "Impeachment
Evidence."
Mr. Libby contends that "it is perfectly permissible for a court to grant access to potential
impeachment evidence before a trial begins." Opp. at 4. But Mr. Libby does not explain why
this case warrants a departure from what he concedes is the "general[]" rule. See Nixon, 418
U.S. at 701 ("Generally, the need for evidence to impeach witnesses is insufficient to require its
production in advance of trial.") (emphasis added); United States v. Cuthbertson, 630 F.2d 139,
144 (3d Cir. 1980) ("impeachment statements, although subject to subpoena under Rule 17(c),
generally are not subject to production and inspection [by the defendant] prior to trial").
Although Mr. Libby asserts that production prior to trial would help him "properly prepare" his
8
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 9 of 14
case, Opp. at 4, the same could be said in virtually any case. Mr. Libby fails to identify what
testimony he anticipates could be impeached, or explain how the evidence he seeks could be
used to impeach it.
Mr. Libby cites to Fryer v. United States, 207 F.2d 134 (D.C. Cir. 1953), as warranting
the pretrial production of potential impeachment material. Opp. at 8. Fryer was a murder case
in which the district court quashed the defendant's subpoena seeking his own statements and
statements of witnesses, and the D.C. Circuit reversed. The year after Fryer was decided,
however, a District of Columbia district court expressly held that "the ruling in the Fryer case
must be deemed limited to capital cases." That case, United States v. Carter, 15 F.R.D. 367, 372
(D.D.C. 1954), was the sole authority cited by the Supreme Court in Nixon to support its
statement that "[g]enerally, the need for evidence to impeach witnesses is insufficient to require
its production in advance of trial." 418 U.S. at 701 (citing Carter, 15 F.R.D. at 371). Nixon thus
confirms that Mr. Libby's reliance on Fryer is misplaced.
Mr. Libby also cites LaRouche, 841 F.2d 1176, to support his argument. But in that case,
the First Circuit explained that it was willing to depart from the general rule only because of "the
unique circumstances of [the] case"--namely, that the witness whom the defendants hoped to
impeach through outtakes from a televised interview had recently testified at the trial of a co-
defendant and would "likely give testimony against the defendants that is substantially similar."
Id. at 1180 n.7. In such circumstances, the court held, the witness's "general testimony [was]
already known" and thus the concern over admissibility was diminished. Id. at 1180. The First
Circuit's decision--which the court went out of its way to limit to its "unique circumstances"--
does not support the broad reading Mr. Libby gives it, and certainly does not suggest that a
departure from the general rule would be justified in this case.
9
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 10 of 14
II. THE SUBPOENA MUST BE QUASHED OR MODIFIED BECAUSE IT SEEKS
DOCUMENTS PROTECTED BY THE REPORTER'S PRIVILEGE.
Even if Mr. Libby's subpoena satisfied the standards of Rule 17--which it plainly does
not--it would need to be quashed or modified because the documents it requests are protected by
the reporter's privilege that exists under the First Amendment and common law.
A. First Amendment
Mr. Libby contends that there is no First Amendment-based reporter's privilege
applicable in criminal cases. Opp. at 37-41. Mr. Libby rests his argument on the Supreme
Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and the D.C. Circuit's
splintered panel decision in In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141 (D.C.
Cir. 2006), modifying 397 F.3d 964 (D.C. Cir. 2005). Neither case, however, supports
Mr. Libby's position.
In Branzburg, the Supreme Court declined to hold that a reporter's privilege relieved
journalists from an obligation to testify in a grand jury investigation being conducted in good
faith. Mr. Libby misreads Branzburg, however, in arguing that its holding "applies to criminal
proceedings across the board." Opp. at 38. To be sure, the court in United States v. Liddy, 354
F. Supp. 208 (D.D.C. 1972), appeared to accept this view, but the Liddy court's narrow
interpretation of Branzburg was superseded by the D.C. Circuit's subsequent ruling in Zerilli v.
Smith, 656 F.2d 705 (D.C. Cir. 1981). Indeed, in Zerilli, the D.C. Circuit explained that
Branzburg allows a First Amendment privilege "even where a reporter is called before a grand
jury to testify." Id. at 711. Accordingly, the suggestion in Liddy that Branzburg forecloses a
First Amendment privilege in all criminal matters does not remain good law.
10
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 11 of 14
With regard to the Judith Miller decision, that case arose in the context of a grand jury
subpoena, and thus is distinguishable for the same reason that Branzburg is. See 397 F.3d at 970
("Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment
privilege protecting journalists from appearing before a grand jury or from testifying before a
grand jury or otherwise providing evidence to a grand jury . . . ."). Nothing in either Branzburg
or Judith Miller precludes application of a First Amendment privilege outside the limited context
of a grand jury subpoena.
Mr. Libby's attempt to distinguish United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000), is
equally unavailing. Mr. Libby does not dispute that in Ahn, the D.C. Circuit held that "reporters
possess a qualified privilege" grounded in the First Amendment. Id. at 37. Rather, Mr. Libby
contends that Ahn is distinguishable because it arose in the context of an attempted withdrawal of
a guilty plea. Opp. 40. Not only does this argument contradict his earlier argument that
Branzburg "applies to criminal proceedings across the board," Opp. 38, but Mr. Libby does not
explain why a criminal defense subpoena issued in the context of withdrawing a guilty plea
should be treated any differently from a criminal defense subpoena issued in the context of
preparing for trial.
Finally, Mr. Libby's repeated invocations of the "constitutional dimensions" of "the right
of a criminal defendant to the production of evidence," Opp. at 39, again turns a blind eye to the
considerable First Amendment interests at stake here. Mr. Libby is entitled to make the
argument that his asserted constitutional rights as a criminal defendant outweigh the First
Amendment interests at issue in this case, but he misstates the law in assuming that his "right to
evidence" is the only interest at issue.
11
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 12 of 14
B. Common Law
Time's motion to quash showed why the Supreme Court's decision in Jaffee v. Redmond,
518 U.S. 1 (1996), virtually compels recognition of a common law reporter's privilege.
Mr. Libby does not dispute that the Court must resolve this question through application of
Jaffee's three-part test; rather, Mr. Libby contends that application of those factors bars
recognition of a privilege under the common law and Federal Rule of Evidence 501. In so
arguing, Mr. Libby fails even to mention, let alone rebut, Judge Tatel's conclusion that Jaffee
requires recognition of a common law privilege. See In re Grand Jury Subpoena to Judith
Miller, 397 F.3d at 991-1001 (Tatel, J., concurring).
First, Mr. Libby observes that "a number of states and the District of Columbia" have
enacted reporter's shield statutes. Opp. at 42. In fact, 31 States and the District have done so--
and 18 more have recognized protection through judicial decision. Mr. Libby notes that "the
statutes vary widely," id., but the Jaffee Court explicitly recognized that "variations in the scope
of the protection" cannot "undermine the force" of the States' judgment that some form of
privilege is warranted. 518 U.S. at 14 n.13. And while Mr. Libby contends that these statutes
generally are not interpreted "to deprive a criminal defendant of specific evidence relevant to
prove his innocence at trial," Opp. at 42, that point is not only inaccurate but irrelevant, in that it
goes to whether a privilege may be overcome in a particular case, not whether a privilege should
be recognized.
The second Jaffee factor requires courts to assess whether the privilege serves significant
public and private interests. Mr. Libby concedes that "a free press is an important public good,"
but argues that Branzburg found that reporters would not be "unduly hampered" by the absence
of a privilege. But Branzburg was decided nearly 35 years ago--prior to Watergate, prior to the
12
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 13 of 14
enactment of Rule 501, and prior to the Court's decision in Jaffee, which set forth a new
framework for recognizing privileges under the common law that does not require empirical
proof of the harm to First Amendment interests. See 518 U.S. at 10 (recognizing
psychotherapist-patient privilege based on the prospect that "the mere possibility of disclosure
may" harm significant public and private interests) (emphasis added); cf. id. at 24 (Scalia, J.,
dissenting) (criticizing majority for not requiring enough evidence on this point).
Third, with regard to the question whether the First Amendment interests outweigh the
likely evidentiary benefits that would result from denial of the privilege, all Mr. Libby can say is
that the harm is "speculative" and "clearly outweighed" by a defendant's "right to obtain
evidence that may establish his innocence." Mr. Libby thus fails entirely to respond to the
argument in Time's motion to quash: that any evidentiary benefit that would result from the
denial of the privilege is modest, given that "[w]ithout a privilege, much of the desirable
evidence to which litigants . . . seek access . . . is unlikely to come into being." Jaffee, 518 U.S.
at 12.
For these reasons, this Court should recognize and apply a common law reporter's
privilege in this case. Regardless of the precise formulation of the privilege this Court may
recognize, it clearly would encompass the irrelevant documents demanded by Mr. Libby's
subpoena.
13
Case 1:06-mc-00128-RBW Document 13 Filed 05/08/2006 Page 14 of 14
PRAYER FOR RELIEF
This Court should quash or modify the subpoena and award Time Inc. all other relief to
which it may be justly entitled.
Dated: May 8, 2006 Respectfully submitted,
/s/
Theodore J. Boutrous, Jr.
Robin Bierstedt
D.C. Bar No. 420440
Andrew Lachow
Thomas H. Dupree, Jr.
Time Inc.
D.C. Bar No. 467195
1271 Avenue of the Americas
GIBSON, DUNN & CRUTCHER LLP
Room 38-45
1050 Connecticut Avenue N.W.
New York, NY 10020
Washington, DC 20036
(212) 522-3217
Telephone: (202) 955-8500
Fax: (202) 530-9689
Attorneys for Time Inc.
14
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