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Getty Subpoenas for reporters near in Petraeus leaks lawsuit

A First Amendment showdown may be looming with new indications that journalists are about to be pulled into litigation over leaks about the government investigation that led to the resignation of CIA Director David Petraeus and, ultimately, his conviction on a charge of mishandling classified information.

Lawyers for Jill Kelley, a Florida woman who claims her privacy was violated by the FBI and Defense Department in the course of the probe, are signaling plans to subpoena reporters to appear at depositions to answer questions about their anonymous sources for stories about the inquiry.

"Plaintiffs have indicated that they may seek to depose certain reporters in September and/or October," lawyers for Kelley and for the government said in a joint filing last week with U.S. District Court Judge Amy Berman Jackson in Washington.

The filing (posted here) did not specify which journalists Kelley is planning to call. Kelley's attorney, Alan Raul, declined to comment.

Earlier court filings have revealed that Kelley's lawyers already obtained at least one email sent to Johnson by a journalist, Daniel Klaidman of the Daily Beast (now Yahoo News). Kelley's team has also raised concern about or sought more about Kelley-related stories by the Associated Press, Tampa Tribune, USA Today, Washington Post, and ABC News.

Jackson may have made the apparently imminent round of subpoenas all but inevitable when she ruled in July that Kelley could not at this point depose Homeland Security Secretary Jeh Johnson about any disclosures he made of information about Kelley when he served as the Pentagon's top lawyer or thereafter. The judge said that because Johnson is a cabinet official, Kelley needs to attempt to get information from journalists first before seeking to force Johnson to answer questions.

Subpoenas in Privacy Act lawsuits against the government can be treacherous for reporters who decline to reveal their sources. In 2008, a judge imposed a fines of up to $5,000 a day on former USA Today reporter Toni Locy for refusing to identify her sources for reports about a suspect in anthrax attacks in 2001, Dr. Stephen Hatfill. After an extensive legal battle, Locy avoided the fines and possible jail when the government agreed to pay $4.6 million to settle the scientist's lawsuit.

It's unclear whether Jackson will insist on fines, jail or similar coercion for journalists who refuse to answer questions in the Kelley lawsuit or whether the judge will find a more perfunctory effort to obtain information from reporters adequate to proceed with a deposition of Johnson.

Kelley's lawsuit contends her privacy was invaded after she reported suspicious, unsolicited emails to the FBI because they suggested familiarity with the schedules of senior military officials she was acquainted with such as Gen. David Petraeus and Gen. John Allen. The probe exposed an extramarital affair Petraeus had with his biographer, Paula Broadwell.

Kelley alleges that government officials leaked her emails to members of the press and suggested to journalists that there was evidence she had an affair with Allen, which she denies.

Petraeus stepped down in late 2012 after results of the investigation were shared with the White House. Earlier this year, he pled guilty to mishandling classified information by retaining briefing books containing classified details and sharing them with Broadwell, an Army reservist. He was sentencted to 2 years probation and ordered to pay a $100,000 fine.

The timing of any potential subpoenas for journalists remains somewhat unclear, but Jackson entered an order Monday directing both sides to complete depositions in the case by October 13.

UPDATE (Tuesday, 9:12 P.M.): This post has been updated with additional context.