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Ex-Cheney aide may get reporters' notes

Judge rules materials are admissible

From Paul Courson
CNN Washington Bureau



Tim Russert
Matthew Cooper
Judith Miller
Robert Novak

WASHINGTON (CNN) -- Two reporters, a television network, a magazine and a newspaper might have to surrender notes before the trial of Lewis "Scooter" Libby, the indicted former top aide to Vice President Dick Cheney.

Libby's lawyers had subpoenaed a broad range of notes to help prepare his defense against federal charges he lied to investigators and a grand jury about his knowledge of a CIA operative, Valerie Plame. The lawyers argue that Libby's right to a fair trial outweighs any constitutional protect claimed by the media against handing over the materials.

On Friday, U.S. District Judge Reggie Walton agreed, writing, "The court declines to recognize a First Amendment reporters privilege."

In orders to Andrea Mitchell, NBC News, Matthew Cooper, Time magazine and The New York Times, Walton concluded the defense's "requests are specific, and the responsive documents are relevant."

In addition, Time must hand over draft versions of an article Walton says would be helpful for Libby's defense.

Walton said he had found alterations between drafts Cooper had written for his 2005 article, "What I told the grand jury." Such information, Walton said, would allow Libby's lawyers to challenge Cooper's likely testimony.

Walton ordered the relevant documents handed over to Libby's team by June 2 and described an "inevitability that Cooper will be a government witness at trial."

Walton received much of the sought-after materials for a closed-door review prior before issuing his order.

Except for Time magazine and Cooper, Walton's order does not require any documents to be immediately disclosed to the defense, pending a final ruling on admissibility during the trial of the case set for January 2007.

In the same action, Walton rejected a subpoena issued to former New York Times reporter Judith Miller, saying Libby's requests for notebooks, appointment calendars and her telephone records "appear to be nothing more than a fishing expedition."

The wording was the same as that which Miller's attorney, Bob Bennett, had used in fighting the subpoena.

CNN, a sister company to Time magazine, was among the outlets served, but the defense was satisfied that the TV news network had no materials relevant to the request.

Libby, 55, Cheney's former chief of staff, is charged with perjury and obstruction of justice, accused of lying to the FBI and a federal grand jury about how he learned about Plame and what he subsequently told reporters about her.

Libby's indictment grew out of conversations he had with Miller, NBC's Tim Russert and Time magazine's Cooper in June and July 2003. During this two-month period, the White House, according to special counsel Patrick Fitzgerald, was mounting a campaign to undermine charges made by Plame's husband, former U.S. Ambassador Joseph Wilson, about the Iraq war.

In an opinion piece in The New York Times, Wilson alleged that the administration had twisted prewar intelligence on Iraq to justify going to war. Eight days later, his wife was identified in a column by syndicated columnist Robert Novak.

The key to Libby's defense is whose memory is correct -- Libby's or the three reporters. That means raising questions about whether Miller, Russert and Cooper could have learned about Plame and her CIA connection from other reporters at their respective news organizations or government officials besides Libby.

In court documents filed on Wednesday the special prosecutor in the case said that Cheney could be called as a witness because of extensive conversations he had with Libby about Wilson's op-ed piece. Cheney had also made handwritten notes on a copy of that piece. (Details)

Libby has denied wrongdoing and pleaded not guilty.

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