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
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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
Case 1:06-mc-00125-RBW Document 8 Filed 05/08/2006 Page 3 of 8 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
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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
Case 1:06-mc-00123-RBW Document 8 Filed 05/08/2006 Page 8 of 15 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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