The subpoena battle in the Valerie Plame leak investigation pitted the news media against federal prosecutors. So reporters subpoenaed last month by the attorneys for the scientist once suspected in the anthrax attacks might be surprised by their new ally: The Justice Department is coming to their defense.
In documents filed April 27 in the U.S. District Court for the District of Columbia, federal prosecutors wrote that Steven Hatfill has overstepped court orders allowing him to compel testimony from reporters whom he had already questioned and has instead "served a new round of subpoenas" on organizations "that he failed to question during the discovery period."
Judge Reggie Walton gave Hatfill permission in March to re-subpoena reporters to find out the names of the government sources who had told them about the DOJ's investigation of Hatfill. Then-Attorney General John Ashcroft had called him a "person of interest" in the 2001 anthrax attacks that killed five people.
Hatfill, represented by lawyers at Harris, Wiltshire & Grannis, filed suit in 2003 alleging that this statement and other leaks to the press by unknown law enforcement officials violated his right to privacy.
During the first round of depositions, prosecutors wrote, Hatfill subpoenaed six reporters: Newsweek's Michael Isikoff and Daniel Klaidman, ABC's Brian Ross, The Washington Post's Allan Lengel, CBS's Jim Stewart, and USA Today's' Toni Locy. They provided accounts of what government officials had told them about Hatfill but weren't required to name their sources, only to identify them broadly as officials from DOJ or the FBI. Hatfill had also subpoenaed the news organizations, but those were dropped when the individual reporters testified.
Hatfill asked Walton to force the Justice Department to turn over documents that might help him identify the specific sources. But when Walton denied this, he gave Hatfill permission to find the sources through another means: the news media.
This time, Hatfill has subpoenaed eight news organizations, including three that he didn’t before — The New York Times, The Baltimore Sun, and the Associated Press. The subpoenas require organizations to turn over documents relating to Hatfill, from email contacts to notes to company policies about confidential sourcing. They also mandate that a representative of each company appear for a deposition at the office of Hatfill’s lawyers on various dates over the next two weeks.
Hatfill has yet to ask Walton to compel the individual reporters to identify their sources. It’s unclear whether he will subpoena more individual reporters this time around, but court documents indicate the names of 22 journalists whose bylines appeared on articles related to Hatfill.
For the Justice Department, this is already going too far. “The court should reject this attempt to expand discovery,” prosecutors wrote.
Lawyers for the various news outlets say they have yet to decide how they'll respond to the subpoenas. For now, says Kevin Baine, a partner at Williams & Connolly who represents the Post, Newsweek, and ABC, “We’re not going to be in initial responses handing over anything or giving testimony that identifies sources.”