United States District Court for the District of Columbia
November 10, 2004.
IN RE: SPECIAL COUNSEL INVESTIGATION.
The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge, District
Pending before the Court is the Motion of Matthew Cooper and
Time Inc. to Quash Subpoena and/or for Protective Order. The
subpoenas in question were issued by Special Counsel Patrick
Fitzgerald as part of the ongoing investigation into the
potentially illegal disclosure of the identity of alleged CIA
official Valerie Plame. For the reasons set forth in this Court's
July 20, 2004 Memorandum Opinion in the cases Misc. Nos. 04-296
and 04-297, this Court's September 9, 2004 Memorandum Opinion in
the case Misc. No. 04-407, and the additional reasons stated
below, the Court denies the motion to quash.
The facts surrounding this case and Mr. Cooper's role in it are
outlined in the Court's Memorandum Opinion of July 20, 2004.
Developments in the investigation subsequent to that Opinion are
the impetus behind the current motion to quash. After Mr. Cooper
failed to comply with the Court's July 20, 2004 Order, Special
Counsel moved for an Order to Show Cause why Mr. Cooper should
not be held in contempt of court. The same day, Special Counsel
served a subpoena on Time requesting production of notes, tape
recordings, e-mails or other documents of Cooper's relating to
articles he had contributed to or written. Motion of Matthew
Cooper and Time Inc. to Quash Subpoena and/or for Protective
Order ("Mot. to Quash") at 4. Time filed a motion to quash the
subpoena. On August 6, 2004, the Court denied Time's motion to
quash referring to its Opinion of July 20, 2004. Time did not
follow the Court's Order instructing it to comply with the subpoena. On August 9, 2004, the Court held Mr.
Cooper and Time in contempt of court for refusing to comply with
its rulings regarding the subpoenas.
Shortly thereafter, Cooper agreed to sit for deposition and
Time agreed to produce certain documents. That deposition took
place on August 23, 2004. Mot. to Quash at 4. At Cooper's
deposition, Special Counsel explicitly reserved the right to seek
additional testimony from Cooper if the need arose. Government's
Response to Motion to Quash Grand Jury Subpoenas ("Gov't
Response") at 3. After Cooper's deposition and Time's production
of certain documents, Special Counsel made a motion to vacate the
findings of contempt against Cooper and Time, which the Court
On September 13, 2004, Special Counsel issued a second set of
subpoenas upon Mr. Cooper and Time. These subpoenas requested
testimony and documents from Mr. Cooper and documents from Time
regarding conversations between Cooper and official sources prior
to July 14, 2003 regarding former Ambassador Joseph Wilson, his
2002 trip to Niger, his wife Valerie Plame, and/or any
affiliation between his wife Valerie Plame and the CIA. Mot. to
Quash at 6. Cooper and Time currently move to quash those
subpoenas based, in part, on arguments already rejected by this
Court in its July 20, 2004 Memorandum Opinion in the cases Misc.
Nos. 04-296 and 04-297 and the September 9, 2004 Memorandum
Opinion in the case Misc. No. 04-407. The Court incorporates the
rulings in those Opinions to this case by reference. Cooper and
Time raise the additional argument that the second set of
subpoenas should be quashed because they are unreasonable and/or
oppressive under Federal Rule of Criminal Procedure 17(c)(2). In
addition to the papers filed in opposition to the motion to
quash, Mr. Fitzgerald has submitted an ex parte affidavit filed
under seal. Analysis
Rule 17(c)(2) states that a court "may quash or modify the
subpoena if compliance would be unreasonable or oppressive."
Federal Rule of Criminal Procedure 17(c)(2). Cooper and Time
argue that because the second set of subpoenas seek the same
information requested in the original subpoenas, enforcing these
new subpoenas would be unreasonable and/or oppressive.
Specifically, Movants take issue with the fact that Special
Counsel voluntarily limited the previous subpoenas to information
concerning one identified government official, yet he now looks
to gather information that he previously agreed not to seek. Such
an action, Cooper and Time argue, is unreasonable and oppressive.
This Court disagrees.
In his ex parte affidavit, Special Counsel outlines in great
detail the developments in this case and the investigation as a
whole. The ex parte affidavit establishes that the government's
focus has shifted as it has acquired additional information
during the course of the investigation. Special Counsel now needs
to pursue different avenues in order to complete its
investigation. Through the ex parte affidavit, the Court has
determined that the subpoenas were not issued in an attempt to
harass the movants, but rather stem from legitimate needs due to
an unanticipated shift in the grand jury's investigation. The
subpoenas bear directly on the grand jury investigation and are
of a limited time and scope.
The fact that Mr. Cooper will now be subject to two deposition,
as opposed to being asked all relevant questions during the first
deposition, is not indicative of unreasonable or oppressive
government action. Rather, this Court believes the second round
of subpoenas demonstrates quite the opposite. The fact that
Special Counsel did not exhaust all relevant subject matter
during Mr. Cooper's first deposition shows that Mr. Fitzgerald
was proceeding in the investigation with great deference to
Cooper's status as a member of the press. The Court agrees with the government when it states, "To hold that the
Special Counsel waived his right to seek additional testimony by
proceeding in a step-by-step fashion would create a perverse
incentive for prosecutors not to issue narrowly tailored
subpoenas to reporters." Gov't Response at 8. Furthermore, at the
end of Mr. Cooper's deposition, Special Counsel specifically
reserved the right to seek additional testimony if the need
The Court concludes that Special Counsel has in no way violated
Rule 17(c)(2), and therefore, the additional subpoenas served
upon Mr. Cooper and Time shall not be quashed on those grounds.
As explained in depth in previous opinions, this Court holds that
Mr. Cooper and Time have no privilege based in the First
Amendment or common law, qualified or otherwise, excusing them
from providing documents to or testifying before the grand jury
in this matter. Therefore, Mr. Cooper and Time must fulfill their
obligations to answer valid subpoenas issued to them by a grand
jury acting in good faith. An appropriate order will accompany
this opinion. ORDER
Pending before the Court is the Motion of Matthew Cooper and
Time Inc. to Quash Subpoena and/or for Protective Order. For the
reasons stated in the accompanying Memorandum Opinion, it is
ORDERED that the motion is DENIED.
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