Granted In Part, Denied In Part

It was win some, lose some for the Libby defense team as Judge Walton handed down his opinion (40 pages) and order (2 pages) regarding subpoenas to various news organizations.

I expect to read these later. Have a great weekend.

WORTH KNOWING: On Judy Miller, the court says her public accounts of her testimony are reliable:

...after reviewing the subpoenaed documents (the draft articles and
transcripts) and comparing them to the indictment and other news articles reflecting Miller’s anticipated testimony, there is no indication that Miller’s trial testimony will deviate in any way from her prior written statements.

But I find this to be baffling:

This Court has greater difficultly concluding that documents responsive to request four are relevant. This request seeks documents “reflecting or referring to any request or recommendation by Judith Miller, prior to July 14, 2003 . . . to pursue a news story or investigation relating to former Ambassador Joseph Wilson’s trip to Niger or his claims concerning that trip.” N.Y. Times’ Mem., Ex. A.

Although the defendant claims that documents responsive to this request could be used to attack Miller’s credibility because there appears to be
a dispute as to whether such a request was actually made, Def.’s Opp’n at 23-24, Miller’s memory of these events is at best only tangentially related to her memory of her conversations with the defendant. The relevance of these documents, therefore, is suspect. In fact, the only possible way documents responsive to this request could be relevant is if the defendant, during his cross-examination of Miller, is permitted to inquire into whether she sought to pursue a story on Ambassador Wilson and his trip to Niger. However, unless something occurs during the trial which the Court cannot currently envision, it is virtually inconceivable that this line of inquiry will be permitted.

Huh? Presumably Ms. Miller is going to be asked about why she was talking to Libby at all. Presumably she will be asked why there are entries for "Valerie Flame" and "Victoria Wilson" in her notebook, and to explain her testimony that she may have discussed Ms. Plame with other sources. But the judge can't conceive of cirsumstances in which she will be asked whether she was actually working on a story?

TIME: The defense asked for

2. All documents, whenever prepared or received, indicating or suggesting that any employee or agent of Time Inc. other than Matthew Cooper was aware prior to July 14, 2003 that the wife of former Ambassador Joseph Wilson was employed by the CIA.

Neither TIME nor Matt Cooper have any documents that are responsive to that.

However, we love Matt Cooper - the judge has ordered TIME to turn over the preliminary drafts of his "What I Told The Grand Jury" story becasue they are not consistent:

At oral argument on this motion, counsel for Time asserted that the drafts will merely be cumulative, as the drafts are simply repetitive of the published story. Id. at 104. As already discussed, only after Cooper testifies will documents which impeach his testimony become admissible. However, upon reviewing the documents presented to it, the Court discerns a slight
alteration between the several drafts of the articles, which the defense could arguably use to impeach Cooper. See TI00011. Compare TI00030, MCX0013, MCX0021, with, MCX0003, 0005, 00027.20 This slight alteration between the drafts will permit the defendant to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be
consistent with both versions. Thus, unlike Miller, whose documents appear internally consistent and thus will only be admissible if she testifies inconsistently with these documents, Cooper’s documents will undoubtedly be admissible. Because of the inevitability that Cooper will be a government witness at trial, this Court can fathom no reason to delay the production of these documents to the defendant, as they will undoubtedly be admissible for impeachment.

I have been saying since Day One that Matt Cooper would be a bad witness against Libby or Rove. And this may represent a straw in the wind against a Rove indictment, since Cooper would be a key witness there.

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