Cross-posted at The Next Hurrah
I was a little confused, at first, when I read Eric Lichtblau's article on Libby's First Amendment defense.
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.
Oh sure, I understand how Libby has played the First Amendment like a fiddle thus far. Getting Judy to go to jail in the name of protecting the First Amendment so that whistleblowers can have protected conversations, when all she was doing was protecting the criminal behavior of a guy lashing out a whistleblower and therefore making it less likely the press would expose the wrongdoing of the powerful in the future. And now Libby's buddy Mr. X has gotten in on the action, getting Bob Woodward to sit on a story for two years, all in the name of protecting the First Amendment that is supposed to ensure stories get told.
''I explained in detail that I was trying to protect my sources. That's job number one in a case like this. . . .
So yeah, Libby and his co-conspirators have played the First Amendment masterfully, so far.
But I was confused, as I mentioned, when I read Libby's defense team wanted to expose everything in the journalists' notes:
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.
I mean, the First Amendment has helped them so far. But imagine what would happen if Judy's notes were all open to the public? It would expose the extent to which Libby, cooperating with Judy and Ahmed Chalabi and Harold Rhode and everyone else in the war party, staged a massive fraud on the American people, lying to get us into war and then lying again about the justification for it. Killing thousands. Ruining the American military in the process. Fitzgerald would drop those puny perjury charges in a second and go after treason, conspiracy, fraud, the works. Libby can't allow Judy's notes to get exposed, because it would bring down the whole charade.
But all my confusion vanished once I did a little more research into Libby's lawyer William Jeffress. You see, in addition to having the advantage of working with Bush consigliere James Baker, and in addition to already representing one of the key players in this drama, Jeffress once won a case before SCOTUS for a high-profile Republican crook. You may have heard of this crook. Richard Nixon. Ring a bell?
<rant>What the hell has happened to the press corps in this country? You've got the highest-ranking administration official in a hundred-some years indicted, picking a new legal team. And your bios on the second of these lawyers doesn't extend beyond the "corporate law yadda yadda." But this lawyer, mr. yadda yadda, won a case before SCOTUS for Richard fricking Nixon. Richard Nixon!?! You ever heard of him?? Not only that, but he won a case before SCOTUS about media access to trial evidence.You think that might be relevant to this case? Media access, in a trial in which journalists are going to be star witness one, two, and three? Just maybe? Richard Nixon? Don't you think maybe that's relevant????</rant>
Well, it turns out the Richard Nixon case just might be pertinent to US versus Libby. Because Jeffress' Nixon case, you see, managed to limit press access to some of the Nixon tapes while the case was being appealed. From the decision:
Considering all the circumstances, the common-law right of access to judicial records does not authorize release of the tapes in question from the District Court's custody
[snip]
The release of the tapes is not required by the First Amendment guarantee of freedom of the press.
[snip]
Nor is release of the tapes required by the Sixth Amendment guarantee of a public trial. While public understanding of the highly publicized trial may remain incomplete in the absence of the ability to listen to the tapes and form judgments as to their meaning, the same could be said of a live witness' testimony, yet there is no constitutional right to have such testimony recorded and broadcast. The guarantee of a public trial confers no special benefit on the press...
Are you beginning to see why this case is pertinent, other than Jeffress' experience dealing with massive Republican crooks before?
Libby's defense team is planning on claiming access to reporters' notes. And to be fair, they will probably be able to make a very compelling argument that Libby can't prove his "every journalist knows" defense unless he has access to the notes from all the journalists.
But at the same time, they're going to use precisely this SCOTUS decision--argued for Richard fricking Nixon, no less--to argue for limiting the press' access to the press' notes. A neat trick, huh? That is, they're going to argue on one hand that they get access to the notes, but on the other hand that the press doesn't get to report on the contents of the notes, beyond what gets entered into the court record.
Are you seeing where this is going?