With Washington’s attention focused on the murky fate of top White House official Karl Rove, one surprising and potentially significant development in the ongoing CIA leak case against top White House official I. Lewis (Scooter) Libby has largely escaped notice. It concerns questions about the credibility of one of the reporters at the center of the case. To the surprise of many, however, the reporter in question is not the much-maligned ex-New York Times reporter Judith Miller – but Time magazine correspondent Matthew Cooper.

The issue surfaced recently when US District Court Judge Reggie B. Walton issued an Order and Memorandum Opinion in response to efforts by attorneys for Miller, Cooper, two journalists from NBC News and their respective news organizations to quash subpoenas from Libby’s attorneys seeking a wide range of the journalists’ work material.

After personally reviewing the documents in question, Judge Walton upheld Miller’s motion to quash her subpoena in full – meaning she would not have to turn over anything – but ordered at the same time that Time magazine must turn over drafts of articles written by Cooper. Walton noted there were variations in the drafts, written after Cooper had testified before the grand jury that investigated and indicted Libby in the case involving the leaking of C.I.A. operative Valerie Plame Wilson’s name. ‘’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,'’ the judge wrote in a memorandum opinion.

“This slight alteration between the drafts will allow the defense to impeach Cooper, regardless of the substance of his trial testimony, because his trial testimony cannot be consistent with both versions,” the judge concluded. “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.”

What do all the legal shenanigans mean? One lawyer close to the case, who requested anonymity so as not to anger Judge Walton, agreed that the discrepancies between the drafts of the articles could potentially be used to impeach Cooper’s credibility at trial. “Compare that to the Judith Miller portion of the judge’s ruling,” the attorney explained. “She has been criticized publicly for her supposed ‘credibility problems.’ But after looking at transcripts of interviews and drafts of articles by Miller, the judge ruled that she is credible — in direct opposition to Cooper, as specifically noted by Judge Walton.”

Miller’s legal team is said to have “taken some small solace” from Judge Walton’s opinion that “there are no credibility issues for Miller,” according to the source. But attorneys for Time Magazine and Matt Cooper can’t be so sanguine, given the potential issues raised by Judge Walton’s ruling.
After all, Libby was indicted on perjury, obstruction of justice and making false statements charges after he told a grand jury and Federal Bureau of Investigation agents on two occasions that he did not disclose Valerie Plame Wilson’s secret CIA identity to Cooper and Miller. Both reporters testified otherwise to the grand jury.

Libby’s defense team had hoped to turn his trial into what the New York Times has labeled “a wider forum about the reasons for going to war in Iraq and what Mr. Libby has portrayed as the Bush administration’s legitimate efforts to respond to critics of the war on the merits.” But Judge Walton’s ruling shows he is determined not to allow the trial “to become a forum for debating the accuracy of Ambassador Wilson’s statements, the propriety of the Iraq war or related matters leading up to the war, as those events are not the basis for the charged offenses.”

Libby’s defense team had also hoped to put the press on trial along with their client, but the recent rulings by Judge Walton have stymied them at every turn. “The only question the jury will be asked to resolve in this matter,” Walton ruled, “Will be whether the defendant intentionally lied when he testified before the grand jury and spoke with F.B.I. agents about statements he purportedly made to the…newspaper reporters concerning Ms. Wilson’s employment.”

Should Matt Cooper’s credibility be put in serious question during the trial, however, the former chief of staff to Vice President Dick Cheney might yet beat the rap.