Libby seeks to exclude evidence of Miller's jailing

NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · Oct. 31, 2006

Libby seeks to exclude evidence of Miller’s jailing

As trial approaches, attorneys for I. Lewis “Scooter” Libby have filed motions to keep out evidence of the court battles of reporters, including Judith Miller.

Oct. 31, 2006 · I. Lewis “Scooter” Libby’s lawyers don’t want information about the contempt proceedings against and jailing of former New York Times reporter Judith Miller to be entered into evidence at his upcoming perjury trial.

Lawyers for Libby, the former chief of staff for Vice President Dick Cheney, filed motions on Monday to exclude evidence relating to reporters’ efforts to quash subpoenas, their contempt proceedings and Miller’s incarceration. Miller was jailed for 85 days starting in July 2005 for refusing to comply with a subpoena to testify.

Libby’s attorneys say disclosing the information would “lure jurors into mistakenly believing that Mr. Libby did something to impede the government from obtaining testimony from certain reporters.”

They assert that Libby “expected that all the reporters to whom he had spoken would also cooperate with the government.”

The motion argues that Miller went to jail not as the result of efforts on Libby’s part to remain anonymous but out of a dedication to the principle of the reporter’s privilege. As a result, they said, the evidence of her contempt charge is not relevant to Libby’s case.

“The reporters who resisted testifying grounded their legal challenges on the First Amendment, reporters’ privilege, and principles of journalistic ethics,” Libby’s lawyers wrote to the court.

The filings state that Libby assumed that Miller’s incarceration had “nothing to do” with Libby because of conversations with Miller’s attorney, Floyd Abrams, and because Libby had already waived his confidentiality agreement.

It was not until September 2005, almost three months after Miller was jailed, that Libby learned that Miller wanted a personal assurances – in the form of a letter and phone call – that the waiver had not been coerced, Libby’s attorneys stated.

Libby’s lawyers argue that since the primary focus is on Libby’s state of mind as to whether or not he intentionally lied, “decisions made by certain reporters and their attorneys to challenge grand jury subpoenas and contempt orders are not [relevant] to Mr. Libby’s state of mind.”

Libby’s lawyers also seek to prevent the government from providing evidence that information from the National Intelligence Estimate was illegally disclosed, or that Valerie Plame’s status with CIA was classified or covert and that disclosing Plame’s status caused damage.

Special Prosecutor Patrick Fitzgerald petitioned the court on Monday to exclude evidence or arguments regarding the government’s decision not to file other charges against Libby or not to charge other people connected with the case.

(United States v. Libby) — HS