U.S. v. Libby

• Decision Date: 26 May 2006
• Docket Number: Misc. No. 06-169.,Misc. No. 06-128.,Misc. No. 06-124.,Misc. No. 06-126.,Misc. No. 06-123.,Misc. No. 06-125.
• Citation: 432 F.Supp.2d 26
• Parties: UNITED STATES of America, v. I. Lewis LIBBY, Defendant. NBC News, Matthew Cooper, Judith Miller, Andrea Mitchell, Time Inc., and The New York Times, Movants.
• Court: U.S. District Court — District of Columbia

432 F.Supp.2d 26

UNITED STATES of America, v. I. Lewis LIBBY, Defendant.

NBC News, Matthew Cooper, Judith Miller, Andrea Mitchell, Time Inc., and The New York Times, Movants.

Misc. No. 06-123.

Misc. No. 06-124.

Misc. No. 06-125.

Misc. No. 06-126.

Misc. No. 06-128.

Misc. No. 06-169.

United States District Court, District of Columbia.

May 26, 2006.

COPYRIGHT MATERIAL OMITTED

William H. Jeffress, Jr., Alexandra M. Walsh, Baker Botts L.L.P., Washington, DC, for Defendant.

Lee Levine, Levine Sullivan Koch & Schulz LLP, Richard Alan Sauber, Fried, Frank, Harris, Shriver & Jacobson, LLP, Robert Stephen Bennett, Skadden, Arps, Slate, Meagher & Flom LLP, Charles Samuel Leeper, Spriggs & Hollingsworth, Washington, DC, for Movants.

United States of America, pro se.

MEMORANDUM OPINION

WALTON, District Judge.

On February 27, 2006, this Court issued an order permitting the defendant to serve subpoenas duces tecum on news reporters and news organizations with production dates well in advance of the scheduled trial date as authorized by Federal Rule of Criminal Produce 17(c)(1). February 27, 2006 Order. Consistent with this Order, the defendant served Rule 17(c) subpoenas on a number of news reporters and news organizations. Currently before the Court are motions to quash from NBC News, Andrea Mitchell, Time Inc.,¹ Matthew Cooper, The New York Times, and Judith Miller ("movants").² Upon consideration of the papers filed in connection with these motions to quash and the oral arguments heard by the Court on these motions, for the reasons set forth below, Judith Miller's motion is granted, but all other motions are granted in part and denied in part.

I. Background

The facts of this case are well-known to the parties and have been previously discussed in this Court's earlier Memorandum Opinions. See United States v. Libby, 429 F.Supp.2d 1, 3-4, 2006 WL 574260, at *1 (D.D.C. March 10, 2006); United States v. Libby, 429 F.Supp.2d 27, 28-29, 2006 WL 1109454, at *1-2 (D.D.C. Apr.27, 2006). It is helpful, nonetheless, to briefly review the facts as they relate to the motions currently before the Court.

The defendant is charged in a five-count indictment with obstruction of justice in violation of 18 U.S.C. § 1503 (2000), two counts of false statements in violation of 18 U.S.C. § 1001(a)(2) (2000), and two counts of perjury in violation of 18 U.S.C. § 1623 (2000). Indictment at 1. All of these charges arise from a criminal investigation into the possible unauthorized disclosure of classified information—Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA")—to several journalists. Indictment at 8, ¶ 25. Specifically, the charges against the defendant are predicated upon statements that the defendant allegedly made to Special Agents of the Federal Bureau of Investigation ("FBI") in October and November, 2003, id. at 9, ¶ 26, and testimony he provided to a grand jury in March 2004, id. at 11, ¶ 30. The alleged false statements occurred when the defendant recounted to the FBI Agents and the grand jury conversations he had with news reporters Tim Russert, Judith Miller, and Matthew Cooper in June and July 2003. See generally Indictment at 11-22.

The charges against the defendant are based entirely upon what the defendant has said was discussed during his conversations with these news reporters. Accordingly, documents and information possessed by the various news reporters and news organizations played a central role during the grand jury investigation that led to the issuance of the indictment. See In re Special Counsel Investigation, 332 F.Supp.2d 26 (D.D.C.2004), aff'd, In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C.Cir.2006), reissuing, 397 F.3d 964 (D.C.Cir.2005), cert. denied, ___ U.S. ____, 125 S.Ct. 2977, 162 L.Ed.2d 906 (2005). And, as evidenced by the motions that are the subject of this opinion, the significance of the media's role has not diminished.

Based upon the government's earlier representations, it is clear that the government has provided the defendant all documents in its possession that he is entitled to receive at this time³ that discuss the defendant's conversations he allegedly had with reporters Miller, Russert, and Cooper. The defendant now seeks additional documents and information from these reporters, as well as, among others,⁴ NBC News, Time Inc., and The New York Times, pursuant to Rule 17(c) subpoenas. All six have filed motions to quash the defendant's subpoenas. These motions assert (1) that the subpoenas issued to them do not comport with the requirements of Rule 17(c), and (2) that a reporters' privilege under either the United States Constitution or the common law protects the subpoenaed material from disclosure.⁵ The Court's analysis of these challenges must first begin with Rule 17(c) itself. Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (It is well-settled that a Court should "avoid deciding constitutional questions presented unless essential to proper disposition of a case"). Only if the Rule 17(c) challenges are rejected need the Court address the privilege arguments.

II. Federal Rule of Criminal Procedure 17(c)

Federal Rule of Criminal Procedure 17(c) provides:

(1) In General. A subpoena may order the witness to produce any books, papers documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

(2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.

Fed.R.Crim.P. 17(c). The Supreme Court has concluded that Rule 17(c) is "not intended to provide a means of discovery for criminal cases," but was meant "to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials."⁶ United States v. Nixon, 418 U.S. 683, 698-99, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951)); see United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir.1980) (Cuthbertson I) ("Courts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed.R.Crim.P. 16."); United States v. Haldeman, 559 F.2d 31, 75 (D.C.Cir.1976) (Rule 17(c) "is not a discovery device, [it] confines a subpoena duces tecum to admissible evidence, [and] authorizes the quashing of the subpoena if it is `unreasonable or oppressive.'") (footnotes omitted). Accordingly, "Rule 17(c) may be used to obtain only evidentiary materials." United States v. Cherry, 876 F.Supp. 547, 552 (S.D.N.Y.1995) (citing Bowman Dairy Co., 341 U.S. at 221, 71 S.Ct. 675 ("[A]ny document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena.")). The Rule "is designed as an aid for obtaining relevant evidentiary material that the moving party may use at trial." Cuthbertson I, 630 F.2d at 144. Thus, "Rule 17(c) can be contrasted with the civil rules which permit the issuance of subpoenas to seek production of documents or other materials which, although not themselves admissible, could lead to admissible evidence." Cherry, 876 F.Supp. at 553 (citing United States v. Marchisio, 344 F.2d 653, 669 (2d Cir.1965)). As the Third Circuit has noted, there is a difference between:

exculpatory material in the possession of the prosecution, generally available [to a criminal defendant] under the teachings of Brady v. Maryland, and exculpatory evidence in the possession of third parties. Only the latter is retrievable under a rule 17(c) subpoena; naked exculpatory material held by third parties that does not rise to the dignity of admissible evidence simply is not within the rule.

United States v. Cuthbertson, 651 F.2d 189, 195 (3d Cir.1981) ("Cuthbertson II").

Before Nixon, most courts required a party seeking production of documents under Rule 17(c) to show:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition."

Nixon, 418 U.S. at 699-700, 94 S.Ct. 3090 (citing United States v. lozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952)). Guided by these factors, the Supreme Court in Nixon concluded that to compel production of documents under Rule 17(c), the party seeking production "must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity." Id. at 700, 94 S.Ct. 3090. A subpoena that fails to satisfy these three requirements will be deemed unreasonable or oppressive and must be either quashed or modified. See, e.g., Cuthbertson I, 630 F.2d at 145 (concluding, in part, that the district court properly modified a Rule 17(c) subpoena); United States v. North, 708 F.Supp. 402, 404 (D.D.C.1989) (holding that the government's Rule 17(c) subpoena had to be quashed because it failed to satisfy the relevance, admissibility, and specificity requirements).

The first prong of this test—relevancerequires the Court to assess whether the documents sought have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R.Evid. 401. If the documents are deemed relevant, the Court must then determine whether they would be admissible. This inquiry...