Some journalists who made careers out of questioning government officials and bearing witness to history may soon find themselves answering questions from prosecutors as key witnesses in the CIA leak case.
Ten or more reporters from some of the most prominent news organizations could be called to testify in the perjury and obstruction case of former White House aide I. Lewis “Scooter” Libby. It’s rare enough for reporters to become witnesses. But the Libby case is even more unusual because journalists will be dueling witnesses some called by the defense team, some by prosecutors.
“It will be unprecedented and, as far as I’m concerned, horrifying,” Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said of the case, for which jury selection begins in two weeks.
Prosecutors want to show that Libby lied to investigators about his conversations with journalists regarding outed CIA officer Valerie Plame, and they are expected to rely on former New York Times reporter Judith Miller, Time magazine reporter Matthew Cooper and NBC Washington bureau chief Tim Russert to make their case.
Libby, the former top aide to Vice President Dick Cheney, has said he had no reason to lie and simply didn’t remember those conversations. His attorneys have said they will call as many as seven unidentified journalists to testify about their conversations with Libby to bolster his case.
The Libby case has rankled news agencies for nearly three years, since Special Prosecutor Patrick Fitzgerald began subpoenaing journalists to testify before a grand jury. Fitzgerald said it was the only way he could thoroughly investigate whether any laws were broken.
After a lengthy court fight that included an 85-day jail term for Miller, Fitzgerald won cooperation from journalists. When Libby was indicted, it was clear reporters would be key witnesses.
That puts them in the awkward position of aiding a criminal investigation, something journalism groups say erodes the wall between the government and an independent press.
Plame’s identity was first revealed by syndicated columnist Robert Novak. She believes she was outed as retribution for her husband’s criticism of the Bush administration’s prewar intelligence on Iraq.
Jurors likely won’t hear much about the leak itself because the original source, former Deputy Secretary of State Richard Armitage, has already confirmed his role and Libby is not charged with the leak. But the trial is certain to renew questions about whether the administration used reporters to drum up support for the war.
Roy Peter Clark, a scholar at the Poynter Institute, a school and resource center for working journalists, said he worries about the fallout from the trial. If it’s perceived that reporters grant anonymity to officials engaged in political gamesmanship, prosecutors might be more likely to subpoena them in cases where anonymity was granted in serious issues of public importance.
“This case, it’s magnified by the fact that it’s in Washington and the status of the players,” Clark said. “It’s a bizarre and I’d say dangerous case.”
Justice Department policies require prosecutors to exhaust other remedies before sending subpoenas to reporters, and each decision is reviewed by the attorney general, although U.S. investigators and prosecutors occasionally have violated these rules. In the past 15 years, only 13 media subpoenas have been granted involving confidential sources, Deputy Attorney General Paul J. McNulty told Congress in September.
“This record reflects restraint,” he said. “We have recognized the media’s right and obligation to report broadly on issues of public controversy and, absent extraordinary circumstances, have committed to shielding the media from all forms of compulsory process.”
Libby’s attorneys have not publicly named the reporters they expect to be defense witnesses. Two reporters have said they will fight subpoenas, but defense attorney William Jeffress said he expects that will be resolved before trial. Because Libby is calling them to testify about his own conversations with reporters, Jeffress said there should be no confidentiality concerns.
President Bush did not include Libby on his list of pre-Christmas pardons, and the Justice Department said he does not have a pending pardon application on file.