Word broke late yesterday that lawyers for Lewis "Scooter" Libby had filed new papers in the criminal case stemming from the CIA leak.
Raw Story described and quoted extensively from the new filing. It was discussed here in diaries by
Hound Dog and
H2O Man, as well as over at
Talk Left. Initially, there had been some confusion regarding the
filing itself, since it was not posted on the District Court's electronic docket until quite late in the evening,
well after the initial posts regarding it.
Today, Judge Reggie Walton expressed his extreme displeasure about leaks to the media in a case about leaks to the media (oh, the irony!). Yesterday's stories, and the filing that only occurred after those stories had been written, appears to have been the last straw, and the judge may now be prepared to impose a "gag order". More on Walton's excoriation below.
In a two-page Order (available electronically from the court's docket, but not yet hosted anywhere without a password-protected firewall that I can see), Judge Walton leads off by quoting from the
Local Criminal Rules for the District of D.C.:
It is the duty of the lawyer or law firm not to release or authorize the release of information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which the lawyer or the law firm is associated, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.
(LCrR 57.7(b)(1), Release of Information by Attorneys and Court Personnel, Conduct of Attorneys in Criminal Cases)
He then continues,
This Court has previously cautioned the parties about making extrajudicial statements and warned that the Court would not tolerate this case being tried in the media. Despite this Court's prior admonition, it appears that on several occasions information has been disseminated to the press by counsel, which has included not only public statements, but also the dissemination of material that had not been filed on the public docket. The dissemination of such statements and material undoubtedly has the potential to "interfere with a fair trial or otherwise prejudice the due administration of justice."
Citing then to another related subsection of the Local Rules, Judge Walton threatens to impose a gag order on the parties (and attorneys), noting that,
In a widely publicized or sensational criminal case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial . . .
(LCrR 57.7(c))
Walton has given each side until next Friday, April 21, to respond in writing with any reasons why such an order should not be entered. In a footnote concluding today's order, Judge Walton lays out his frustration:
This Court has strongly held views against lawyers trying to gain a tactical advantage by disseminating extrajudicial information to the media. The Court expressed that view to counsel at the early stages of this litigation and expected that counsel would comport with the Court's informal admonition. And although the Court is loath to enter orders that compel lawyers to adhere to their professional responsibilities to the Court, one being compliance with the Rules of the Court, this Court will nonetheless not hesitate to act if action is deemed necessary.
Presumably, Judge Walton wants to retain some semblance of control over his administration of Libby's trial, and believes that the lawyers here
are trying to gain an improper tactical advantage (frankly, they would be remiss if they weren't trying). It will be interesting to see what Fitzgerald's submission next week looks like, since it would appear as though Walton is principally directing his fire at Libby's attorneys, Ted Wells and his colleagues. Would Fitz support a gag order? It's entirely possible. And how do Wells, et al., defend their release of information to the media? We'll know in just over a week, if not sooner.