Jeffrey Toobin has an excellent new article in the New Yorker, available here, on how reporters are finding it increasingly difficult to protect their sources as a result of the frequency with which they are being subpoenaed in criminal investigations. He explains how Judge Tatel's decision in PlameGate is not the law of the land, or even in the federal courts in the District of Columbia, and that journalists fighting the subpoenas have little cause for optimism.

Toobin also discusses how defendants intend to fight back. Case in point: Scooter Libby.

As Libby's lawyers prepare for his trial, which will probably take place this year, they are expected to ask to see the journalists' notes, and they may subpoena other reporters who covered the investigation. At the trial, Libby's team will try to undermine the journalists' credibility by challenging them on everything from sloppy note-taking to evidence of bias. "This guy is on trial for his freedom, and it's not his job to be worried about the rights of the witnesses against him," a person close to Libby's defense team said. "There are going to be fights over access to the reporters' notes, their prior history and credibility, and their interviews with other people. By the time this trial is over, the press is going to regret that this case was ever brought."

The court docket in Scooter Libby's case shows San Francisco lawyer John Cline has filed an entry of appearance. He's an expert in classified documents. The San Francisco Chronicle reports:

Cline has been involved in several high-profile criminal cases whose outcomes turned in part on demands for the introduction of such government secrets at trial. These have included the criminal defense of Oliver North and the case of Wen Ho Lee, a former nuclear scientist who had been accused of mishandling nuclear secrets. Reached in Washington on Monday, Cline confirmed that he had been retained by Libby, but he said he could not comment on the case.

The Chronicle has this assessment of why Libby added Cline to the team:

Lewis Libby's lawyers are crowing mightily about how Bob Woodward's disclosures help their case. In doing so, they misinterpret Patrick Fitzgerald's comments.

At the news conference the day of the Indictment, Fitzgerald did not say that Libby was the first Administration official to disclose Valerie Plame Wilson's identity to a reporter. He said Libby was the first person known to the Government to have disclosed her identity. There's a sea of difference between the two.

In fact, Mr. Libby was the first official known to have told a reporter when he talked to Judith Miller in June of 2003 about Valerie Wilson.

Now, later in the press conference, he does say:

He was at the beginning of the chain of phone calls, the first official to disclose this information outside the government to a reporter. And then he lied about it afterwards, under oath and repeatedly.

I think it's perfectly clear what Fitzgerald meant in light of his statement at the beginning of the conference - Libby was the first person the investigation uncovered who disclosed the information to a reporter.

[Update: Reddhed at Firedog Lake agrees and adds valuable additional thoughts.]

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Original Post

Taylor Marsh reports on special prosecutor Patrick Fitzgerald and Libby's agreement to keep all discovery provided to Libby out of the hands of third parties and the lawsuit filed by Dow Jones, parent of the Wall St. Journal, to prevent the Court from going along.

As a defense lawyer, I have to say, the right thing to do is keep the material in the hands of the parties. I read Fitzgerald's proposed order (pertinent paragraphs are reproduced below) which is available on Pacer, the federal court docketing system, and it's very similar to ones I get in gang and large drug cases. It even requires the lawyers to return the discovery once the case is over and to keep a record of every person associated with the defense with whom they share it. Why? For one thing, the Government doesn't want unindicted co-conspirators to get their hands on it. For another, they want to protect the identity and safety of cooperating witnesses.

Wow. A new Pew Research poll shows that 79% of Americans believe the indictment of Cheney's Chief of Staff, Lewis "Scooter" Libby is important to the country. Pew's summary of findings are here.

And Bush's base is weakening:

Will PlameGate and other Administration missteps affect today's elections around the country? Another question: Will today's voting be an indicator for the 2006 elections?

Arianna connects the pardon dots on Lewis "Scooter" Libby.

Libby has hired a legal team that includes Theodore Wells and William Jeffress, two prominent criminal lawyers with a reputation for playing hardball in the defense of their high-profile clients. Word is they are going to start asking for access to a lot of sensitive documents. Will this increase the pressure on the White House to consider a preemptive pardon?

On the other hand, during Libby’s arraignment Jeffress told the judge that there may be “protracted litigation” about access to classified information -- leaving the impression that they could try to string the case along until, say, near the end of Bush term when a pardon would have less of a political impact. In any case, Libby’s judge has set a Feb. 3 conference with Libby’s lawyers to discuss the possibility that some of the proceedings might have to occur outside of public view. That’s three months from now. In other words, file the Libby case under Slow Grinding Wheels of Justice and get ready for a long, hard legal slog.

The Wall St. Journal (free link) today discloses Lewis Libby's latest defense strategy. Goodbye memory defense (smart move.) Hello trash the reporters.

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.

The New York Times profiles Judge Reggie Walton who will preside over the Lewis Libby trial and quotes a fellow judge on the D.C. district court as saying he's a tough sentencer:

Judge Walton, a former prosecutor who handled many cases involving drugs and street crimes early in his career, is known for handing down tough sentences.

"You're always going to get a fair trial with him," Judge Lamberth said, "but if you're convicted, he's going to ensure you do adequate time to reflect the crime."

Lewis Libby's new lawyers made their appearance at his arraignment today. They are Ted Wells and William Jeffress.

Wells won acquittals for former Agriculture Secretary Michael Espy and former Labor Secretary Raymond Donovan. He is a partner at the New York-based firm of Paul, Weiss, Rifkind, Wharton & Garrison.

Jeffress is from the firm Baker Botts, where Bush family friend and former Secretary of State James A. Baker is a senior partner. Jeffress has won acquittals for public officials accused of extortion, perjury, money laundering, and vote-buying, his firm's Web site says.

I am not familiar with Jeffress. Ted Wells is an excellent choice.

Raw Story reports that it has confirmed that Fred Fleitz, then the Chief of Staff for John Bolton and also a senior CIA WINPAC official, is the "Senior CIA Offical" who first disclosed Valerie Plame Wilson'identity after Bolton requested information about Wilson's trip. Raw Story reports that Libby requested information about Wilson's trip from John Bolton; Fleitz gave Bolton the name. Bolton then passed it on to David Wurmser who passed it on to John Hannah.

As has been reported previously, David Wurser and John Hannah have been cooperating with Fitzgerald in the probe.

Upon receiving this information, Libby asked Bolton for a report on Wilson's trip to Niger, which Wilson presented orally to the CIA upon his return. Fleitz was one of a handful of officials who was in a position to know Plame's maiden name, the sources said.

Matthew Cooper was on ABC's This Week Sunday speaking about his conversations with Lewis Libby and Karl Rove. (Transcript on Lexis.com)

GEORGE STEPHANOPOULOS, ABC NEWS: Matt, I have to begin with you today because you are right in the middle of this Lewis Libby case and let me show you part of the indictment where some of Scooter Libby's, Scooter Libby's testimony was included. There was a question to him in the grand jury, March 5th, 2004, "And it's your specific recollection," this is to Mr. Libby, "that when you told Cooper about Wilson's wife working at the CIA you attributed that fact to what reporters," answered, "Yes," "plural, were saying, correct?" "Yes, I was very clear to say reporters are telling us that because in my mind I still didn't know it as a fact. I thought I was, all I had was this information that was coming in from the reporters." Is that how the conversation went?

Count Five of Lewis Libby's indictment (html version) alleges that Libby lied to the grand jury on both March 5, 2004 and March 24, 2004 when tesifying about his conversation with Matthew Cooper and other unnamed reporters.

The recitation of phrases used by Libby sets off alarm bells in my head. They are the same as Cheney used in the September 14, 2003 edition of Meet the Press.

Libby in Count 5 (p. 21, Par. 2B)

"I don't know Mr. Wilson. We didn't ask for his mission....I didn't see his report."

Cheney on Meet the Press:

I don’t know Joe Wilson....I don’t who sent Joe Wilson. He never submitted a report that I ever saw when he came back.