Greetings from the Libby trial. Prosecutors are still playing the eight-hour audiotape of Libby’s grand jury testimony — only 39 minutes left! After that, there will be more legal wrangling, perhaps another witness, and then NBC’s Tim Russert.

One of the more interesting fights going on between defense and prosecution concerns some reporters who were told about Valerie Plame Wilson — or may have been told about her — but who were not questioned by prosecutor Patrick Fitzgerald. Specifically, the defense has focused on NBC’s David Gregory, whom Ari Fleischer testified he told about Mrs. Wilson, and NBC’s Andrea Mitchell, who has said she was not told but has also implied lots of other people know about Mrs. Wilson. (In addition, Fleischer testified that yet another reporter, John Dickerson, received the leak, too.) In his opening argument, defense lawyer Ted Wells said,

Now, you will find that the Government went out and did ask David Gregory and Andrea Mitchell if they would submit to an interview. And both of them told the Government, we don’t want to be interviewed. We don’t want to talk about it. What did the Government do? They did not subpoena Andrea Mitchell. They did not subpoena David Gregory. They just said we don’t want to be interviewed. That was the end of it. Twenty-two minutes with Russert, they don’t ask him. David Gregory, I don’t want to be interviewed, no subpoena. Andrea Mitchell, I don’t want to be interviewed, no subpoena.

Well’s plan is two-fold. One is to suggest that Fitzgerald cracked down hard on some reporters and let others off easy because Fitzgerald was more interested in proving his own theory of the case than in finding out what happened. The other plan is to concentrate on NBC reporters in an attempt to impeach Russert by suggesting that he must have known about Mrs. Wilson if David Gregory, and possibly Andrea Mitchell, knew.

What does Fitzgerald say? In a new court filing, he argues that he was constrained by Justice Department guidelines concerning when prosecutors may subpoena members of the media. “It is important that the jury be informed that the government was not free to obtain any information it desired from any and all reporters it chose to subpoena,” Fitzgerald argues, “but was obligated to act with restraint, and with a view toward accommodating the needs of members of the media.” Fitzgerald has asked the judge to give the jury a special instruction explaining that prosecutors had to tread carefully when issuing subpoenas to journalists.

Would anyone really believe that? Fitzgerald played the hardest of hardball with some reporters who received leaks, while with others — Gregory and Dickerson and possibly others — he laid back. Libby’s lawyers have a good question.