Saturday, May 27, 2006
Using the standard set out in Nixon (1974), Judge Reggie B. Walton, who is hearing the case against Lewis Libby, has ordered Time Magazine and Matthew Cooper to turn over documents the defense has requested. But he granted a motion by Judith Miller to quash the subpoena against her, and he granted in part the motions by the other parties in the case--the New York Times, NBC, and Andrea Mitchell, whom Libby had also subpoenaed, alleging that they had materials vital to his case.
Miller, Cooper and Mitchell had also claimed a First Amendment and common law privilege against disclosure. After limiting the documents to be turned over, Judge Walton noted that the reporters were "personally involved in the conversations with the defendant that form the predicate for the charges in the indictment. Their testimony is critical to the government's case and challenging it will likely be critical to the defense. Thus, the Court is only concerned here with whether a reporters' privilege exists to shield from disclosure documents relating to these three news reporters." Judge Walton concluded that the journalists do not have, under Branzburg, a First Amendment privilege in this case, and he believes that Libby would be able to overcome any common law privilege the journalists might assert.