Reporters May Get Hottest Tails

more from the WSJ

... The reporters are expected to face a barrage of questions from defense lawyers. Instead of protecting sources, they could end up defending their own credibility, reputations and reporting techniques.

William Jeffress Jr., an attorney for Mr. Libby, told a federal judge last week that he expected significant First Amendment issues that could delay the start date of the trial. While he declined to elaborate further, defense attorneys involved in the case and First Amendment advocates said Mr. Libby's lawyers would almost certainly want to go beyond the scope of the areas covered in testimony the reporters have provided to a grand jury.

Judith Miller of the New York Times, Matthew Cooper of Time magazine and Tim Russert of NBC News were cited in the indictment and are expected to be called to testify. Much of the case against Mr. Libby rests on contradictions between the journalists' accounts of conversations with him and what he told Special Prosecutor Patrick Fitzgerald about those conversations. ...Spokespeople for the news organizations involved in the case declined to comment about whether they would resist having their reporters testify. ...

It would be difficult at this point for the news organizations to argue that their reporters need to protect confidential sources. In addition to discussing their sources with Mr. Fitzgerald and the grand jury, the reporters have each made those conversations public -- Ms. Miller and Mr. Cooper in published, first-person accounts of their talks with Mr. Libby and their testimony, and Mr. Russert in numerous television interviews.

Instead, the battleground now is likely to be how broadly reporters can be questioned beyond their previous testimony before the grand jury. In talking to Mr. Fitzgerald, the reporters were able to narrowly tailor the topics they would discuss related to the leak of the CIA agent's name and Mr. Libby.

Well, theoretically, the reporters were allowed to 'tailor the topics they would discuss'. In practice, we don't know that for a fact.

But legal experts say Mr. Libby's attorneys, like any attorney trying to impugn the testimony of a witness in a criminal trial, will likely try to blunt the prosecution by challenging the reporters on their other sources, their memories of events in question and their own reputations. While the judge in the case, U.S. District Judge Reggie Walton, would be able to limit the grilling of witnesses to what is relevant to the case, criminal-defense attorneys say he will have to allow at least some questions that go to the credibility and professional ability of key witnesses, which in this case are the reporters. That could include performance reviews, corrections on previous stories and internal correspondence related to the reporters or their stories.

“It's Mr. Libby's right to a fair trial versus editorial privileges, and that isn't a close question,” said one attorney closely involved in the case. “Most judges will say the right to a fair trial wins. ... We're over the hump of the identity” of secret sources, the attorney added. “Now we're talking about credibility” of the reporters.

“Even in criminal trials, courts have shown a willingness to restrict allowable testimony from reporters, finding there must be a balancing between the Sixth and First Amendments,” said Theodore J. Boutrous, a Los Angeles attorney at Gibson, Dunn & Crutcher LLP, which is representing Time Inc., a unit of Time Warner Inc., in the leak case. “Most judges are more sensitive to the rights of journalists in a criminal trial setting than in the grand jury room. The scope of allowable testimony almost certainly will be an issue in this trial.”
“It's going to be very difficult to keep the questions coming from Mr. Libby's lawyers narrowly focused on what [the reporters] told the grand jury,” says Lucy Daglish, executive director of the Reporters Committee for Freedom of the Press, a nonprofit journalism organization in Arlington, Va. “In some respects, we start the First Amendment battle all over again.”

Already, embarrassing -- and potentially damaging -- information about some of the reporters in question has come out. In recent weeks, the New York Times has run a front-page story including a description of Ms. Miller as “Miss Run Amok,” and the suggestion by one of the paper's managing editors, Jill Abramson, that Ms. Miller wasn't truthful when she asserted she had told editors they should pursue a story about Mr. Wilson. Two columnists, including the paper's public editor, have suggested it would be hard for her to return as a reporter, potentially weakening her as a credible witness.

Mr. Cooper has said he talked to Karl Rove, President Bush's political adviser who remains under investigation, on “double super secret background.” He later explained it was a reference to a joke in the campy movie “Animal House.”

Mr. Russert may be the toughest witness for the defense to shake. Not only is he a household name but he also has a strong reputation. Mr. Libby told prosecutors that he learned Ms. Plame's identity from Mr. Russert. The television newsman says Mr. Libby called him to complain about another NBC show and the conversation was brief. Mr. Russert even mentioned the conversation to at least one other person, so the prosecution potentially has a supporting witness. Mr. Russert said he learned of Ms. Plame's identity only when reading about it in a column by Robert Novak, who first disclosed Ms. Plame's identity and attributed the information to two administration officials. Mr. Novak is believed to have cooperated with Mr. Fitzgerald though he has refused to publicly acknowledge his testimony or discuss his sources.

It is rare for journalists to testify as witnesses in criminal trials. The Libby case is all the more unusual both for the number of reporters expected to testify, as well as their central role. Even in Branzburg v. Hayes, a landmark 1972 Supreme Court case that said reporters don't have constitutional protection from testifying in criminal cases, the three reporters involved never ended up testifying, according to First Amendment attorneys.

Yet journalists are coming under new pressure to give information in legal settings. Last week, a full appeals court in Washington upheld a lower court's ruling that four reporters must testify about their confidential sources in a civil lawsuit brought by former Los Alamos nuclear scientist Wen Ho Lee against the U.S. government. Mr. Lee alleges that government officials gave reporters personal information about him and violated his privacy in the late 1990s. The reporters -- James Risen of the New York Times, H. Josef Hebert of the Associated Press, Robert Drogin of the Los Angeles Times and Pierre Thomas, formerly of CNN and now with ABC -- have refused to identify their sources.
The legal spotlight comes at a bad time for the media. The public has become increasingly critical of mainstream news organizations amid admissions in recent years that reporters at high-profile newspapers including the New York Times and USA Today fabricated parts of stories. A trial raising questions about well-known reporters could do further damage.

Frank Blethen, chairman and chief executive of the Seattle Times Co., says with all the harm done by media consolidation, ethical lapses and budget cutbacks, consumer faith in the Fourth Estate is already at a low. Against such a backdrop, he says, “it is hard to go to the public” to try to rally support.

Really? I wonder why?

Tags: Judy_Miller, /Libby, /media, /Plame