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Media Lawyers Fight Libby Subpoenas

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Lawyers for NBC News, The New York Times and Time Inc. accused a former White House aide Tuesday of threatening the integrity of their news gathering operations by seeking access to a wide range of documents in the CIA leak case.

The media lawyers, in separate filings, said I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, is on a "fishing expedition" with his request for documents from the news organizations.

They are asking U.S. District Judge Reggie B. Walton to block seven subpoenas seeking access to drafts of news articles, e-mails and notes generated by any and all of the news organizations' employees — not just the three reporters involved in the case.

Libby, 55, is charged with perjury and obstruction of justice for lying to the FBI and a federal grand jury about how he learned about CIA operative Valerie Plame and what he subsequently told reporters about her.

Conservative columnist Robert Novak named her in a column July 14, 2003, eight days after Plame's husband, former U.S. Ambassador Joseph Wilson, alleged in an opinion piece in The New York Times that the Bush administration had twisted prewar intelligence on Iraq to justify going to war.


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The CIA sent Wilson to Niger in early 2002 to determine whether there was any truth to reports that Iraq had tried to buy yellowcake uranium from Niger to make a nuclear weapon. Wilson determined that there was no truth to the reports. But the allegation nevertheless wound up in President Bush's 2003 State of the Union address.

Libby is charged with lying about what he told reporters about Plame as he acted as a point man in the White House's efforts to counter Wilson's charges.

The Libby defense team has issued subpoenas to: NBC News and its correspondents, Tim Russert and Andrea Mitchell; The New York Times Co. and its former reporter Judith Miller; and Time Inc. and its reporter Matthew Cooper.

Generally, the subpoenas seek all documents prepared or received by any employee of NBC News, The New York Times and Time that refer to Plame and her husband before Novak's column was published.

The subpoenas also seek drafts of articles, even those that were not published; communications between reporters and editors; and e-mail exchanges among any reporters about Plame or Wilson.

Libby's indictment grew out of conversations he had with Russert, Cooper and Miller in June and July 2003, a two-month period in which the White House, according to Special Counsel Patrick Fitzgerald, was mounting a campaign to undermine Wilson's charges about the Iraq war.

Media lawyers argue that documents generated by other reporters are irrelevant and turning them over would violate the First Amendment's protections for the press.

NBC's lawyers said Russert does not have any documents that would show that Plame's CIA employment was known before Novak's column. They said Mitchell's records aren't relevant to the criminal case and are protected from release under the First Amendment.

Lawyers for The New York Times depicted Libby as desperate in casting a "wide net" that he hopes will locate "a statement somewhere" that Plame's role as a covert CIA operative was well known in Washington before Novak's column.

If Libby is permitted access to all that he seeks, they said, it would cause "an immediate and chilling effect on The New York Times' news gathering activities." Sources would become reluctant to talk or allow their interviews to be recorded. And reporters would begin to maintain, or not maintain, notes with an eye toward possible litigation, they said.

The New York Times lawyers also said Libby is improperly seeking documents pertaining to reporters and editors who will not be called as witnesses. Only Miller, who spent 85 days in jail last year refusing to testify about what Libby told her, is the only New York Times employee expected to testify for the prosecution, the newspaper's lawyers said.

Lawyers for Miller said Libby is improperly seeking access to her telephone records and calendar, "personal and sensitive professional references" that are completely unrelated to Libby or the CIA leak case.

Time magazine's lawyers said Libby already has all of Cooper's notes because the company gave them last summer to the special prosecutor, who in turn gave them to the defense team.

Instead, Libby is trying to find out about communications that "MAY have occurred and documents that MAY exist," the Time lawyers wrote.