The Corner

A NEW RULING IN THE CIA LEAK CASE: BAD NEWS FOR COOPER?

Judge Reggie Walton has ruled on Lewis Libby’s request for documents from media organizations in the CIA leak case.  The order is mostly negative for Libby; the judge has reviewed the requested documents, and in many instances has ruled that they would not be relevant to Libby’s defense.  For example, concerning Libby’s request for notes from former New York Times reporter Judith Miller:

It is this Court’s firm conclusion after reviewing the notebooks that providing them to the defendant would not assist him in any way in his attempt to determine who may have provided information to Miller about Ambassador Wilson, his trip to Niger, or Valerie Plame Wilson, or when she acquired such information.

The result is the same for several other requests.  But the judge gave one, possibly quite significant, victory to Libby.  Libby had requested the various drafts for Time reporter Matthew Cooper’s account of his testimony in the case, an account published in July 2005.  Time’s lawyers had argued that the drafts were simply different versions of the same thing and had no value.  Judge Walton disagreed and suggested that the drafts could raise credibility issues about Cooper’s testimony:

After the Court’s examination of the documents, there is no question that they are relevant, as they recount the conversation between Cooper and the defendant, which is the basis for several charges in the indictment.  The admissibility of these documents again turns on whether they can be used as impeachment evidence. 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. 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.  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.

Byron York is a former White House correspondent for National Review.

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