Journalists Said to Figure in Strategy in Leak Case

By ERIC LICHTBLAU
Published: November 16, 2005
WASHINGTON, Nov. 15 - Lawyers for I. Lewis Libby Jr., the former White House official indicted on perjury charges, plan to seek testimony from journalists beyond those cited in the indictment and will probably challenge government agreements limiting their grand jury testimony, people involved in the case said Tuesday.

"That's clearly going to be part of the strategy - to get access to all the relevant records and determine what did the media really know," said a lawyer close to the defense who spoke on condition of anonymity.

At Mr. Libby's arraignment this month, his lawyers alluded to using a First Amendment defense in fighting the charges, but they have declined to say what that strategy might entail.

In interviews, lawyers close to the case made clear that the defense team plans to pursue aggressively access to reporters' notes beyond the material cited in the indictment and plans to go to the trial judge, Reggie B. Walton of United States District Court, to compel disclosure as one of their first steps.

Defense lawyers plan to seek notes not only from the three reporters cited in the indictment - Tim Russert of NBC News, Matt Cooper of Time Magazine and Judith Miller, formerly of The New York Times - but also from other journalists who have been tied to the case.

Chief among those is Robert D. Novak, who first disclosed in a column in July 2003 that Valerie Plame worked for the Central Intelligence Agency.

Ms. Plame, also known as Valerie Wilson, is married to Joseph C. Wilson IV, a former diplomat who became a vocal critic of the Bush administration's use of intelligence on Iraq's weapons capability after he was sent to Niger to investigate reports that Iraq had sought to buy uranium there.

Mr. Libby, the former chief of staff to Vice President Dick Cheney, was indicted last month on charges of perjury, obstruction of justice and making false statements to the Federal Bureau of Investigation. Prosecutors said he misled a grand jury and investigators about his conversations with journalists about Ms. Wilson.

With critical issues of journalistic confidentiality at stake, lawyers and news media analysts said, the issue of Mr. Libby's access to reporters will probably end up before the appellate court, just as the battle over Ms. Miller's confidentiality agreement did earlier this year.

Ms. Miller spent 85 days in jail after she initially refused a federal judge's order to disclose her source, who turned out to be Mr. Libby.

The prospect of another legal battle over access to reporters' records "could be worse for the media" than the Miller showdown, said Lucy Dalglish, head of the Reporters Committee for Freedom of the Press. "You now have a situation where you have a government investigation hung completely on testimony from journalists, with journalists turned into witnesses, and that is a scary notion."

Ms. Dalglish said that unlike the special prosecutor, Patrick J. Fitzgerald, who was restricted partly by Justice Department regulations on subpoenaing reporters' notes, Mr. Libby's defense team will not be bound by those same rules.

"This is a very unsettling case, and it could take years in the courts to resolve," she said.

Mr. Fitzgerald, in securing the cooperation and testimony of some journalists, agreed to limit the scope of his questioning to conversations with certain sources and topics.

But the defense is likely to challenge the limited nature of those interrogations and seek to explore a range of other topics about the reporters' dealings with White House officials, the substances of their conversations and the offers of confidentiality offered to sources, the people involved in the case said.

Lawyers for Mr. Libby have been meeting in recent days to discuss strategy, but they are not known to have contacted any news media officials to seek access to notes or other material in the case.

Lawyers for both the Justice Department and Mr. Libby have acknowledged that First Amendment issues in the case, combined with the time-consuming process of reviewing classified information related to the charges, could cause delays.

The next hearing is set for February, but lawyers say a trial is unlikely until midyear - just as the Bush administration will be gearing up for midterm Congressional elections.

Lawyers for both Mr. Fitzgerald and the defense team declined to discuss strategies.

While some in Washington have speculated that Mr. Libby might be willing to consider a plea bargain as a way of removing a political cloud from the White House, his recent hiring of a number of top trial lawyers - including Theodore V. Wells Jr. and William Jeffress Jr. - signaled that he planned to go to trial.

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