Journalists' Documents Sought in CIA Leak Case

The judge in the CIA leak case orders journalists to turn over some documents sought by the defense, but rejects other requests. Lewis Libby's lawyers say they need reporters' notes and other documents to show who besides Libby might have revealed the undercover identity of CIA agent Valerie Plame.

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The judge overseeing the leak case of Lewis Scooter Libby has rejected journalists' claims of reporters' privilege. Judge Reggie Walton today ordered Time Magazine reporter Matt Cooper to turn over documents that the judge said could be relevant to Libby's defense.

NPR's Ari Shapiro reports on what this means for the freedom of the press.

ARI SHAPIRO reporting:

Defense lawyers for the vice president's former chief of staff demanded a pile of documents from The New York Times, NBC News and Time Magazine. Reporters said the defense team didn't have a right to any of it. So Judge Reggie Walton took the notes, drafts and e-mails into his office, looked at them in private and came out with a 40-page opinion describing exactly which documents the defense team can and can't have.

The Time documents have to be turned over right away. Some New York Times and NBC documents might have to be turned over later, depending on who gets called as a witness and what they say on the stand.

Mr. GREGG LESLIE (The Reporters Committee for Freedom of the Press): It could have certainly been worse, but it could have been a lot better.

SHAPIRO: Gregg Leslie is legal defense director of The Reporters Committee for Freedom of the Press.

Mr. LESLIE: It was nice to see a court say that, even if they don't recognize a First Amendment privilege, at least there's still a tough test that a party has to satisfy.

SHAPIRO: He says, generally, subpoenas for reporters' work are just fishing expeditions at heart. And, in this opinion, Judge Walton slaps down the defense again and again saying things like, the defendant is simply seeking to examine general categories of documents with the hope that they contain information that may be helpful to his defense.

Washington University law professor Neil Richards says that shows the care that Walton took not to infringe too much on reporters.

Mr. NEIL RICHARDS (Washington University, St. Louis, Missouri): Because, on the one hand, we want to have our criminal justice system work properly. Where there is evidence, which may be either exculpatory or incriminating, we want to get that evidence. But at the same time, we do want to protect the integrity of the process of news gathering.

SHAPIRO: The judge said news gathering is not totally sacred. Jim Martin used to be a U.S. attorney in St. Louis.

MR. JAMES MARTIN (Armstrong Teasdale LLP, St. Louis, Missouri): The judge drew a very distinct line between reporters that may simply be covering a story versus reporters that are part of the story. And, in this criminal trial, three of the reporters are clearly part of the story and therefore their notes and their records become very relevant.

SHAPIRO: The case asks whether Libby lied when he told a grand jury and federal investigators that he never leaked a CIA agent's identify to reporters. So, reporters didn't just document the alleged crime, they were part of it.

Judge Walton wrote in his opinion, the First Amendment does not protect news reporters or news organizations from producing documents when the news reporters are, themselves, critical to both the indictment and prosecution of criminal activity.

American University law professor Steve Wermiel says that distinction may not make reporters feel any better.

Mr. STEPHEN WERMIEL (Washington College of Law, American University, Washington, D.C.): The crime we're talking about here is, to the extent that it's a crime, is one that flows from doing your job, from going out and talking to sources and gathering information and reporting the information that you gathered.

SHAPIRO: More worrisome to Eve Burton, general counsel for Hearst Corporation, is that the subpoenas in this case are part of a larger trend.

Ms. EVE BURTON (The Hearst Corporation): I will tell you that we have, in the last eight months, gotten 54 subpoenas around the country at our newspapers and our broadcast stations. A year earlier, we got five over that same period.

SHAPIRO: And she says that is tremendously harmful to news gathering.

Ari Shapiro, NPR News, Washington.

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