Should Scooter Libby's Sentencing Letters Be Made Public?
Marcy (Empty Wheel) argues that the sentencing letters written on behalf of Scooter Libby should be made available to the public.
Team Libby disagrees (brief here), asserting that the letters are not judicial records because they haven't been filed with the Court (they were submitted in camera through the Probation Department) and aren't subject to the First Amendment, and because the privacy interests of the authors outweigh the interest of the public's right to know. Also, Libby argues, since courts have discouraged or prohibited the disclosure of such letters in the past, a change in this case might have a chilling effect and deter supporters of defendants in future cases from writing candid letters of support.
Team Libby is particularly concerned about bloggers:
Given the extraordinary media scrutiny here, if any case presents the possibility that these letters, once released, would be published on the internet and their authors discussed, even mocked, by bloggers, it is this case.
The Government isn't taking a position and Judge Walton is considering the issue as media groups also want access.
As a defense lawyer, I believe most letters should be private. Particularly if they are attached to the pre-sentence report which itself is not public.
But, what about letters written by current public officials? Shouldn't those be made public? I believe they should be. It's a matter of transparency in Government. I think the public's interest in knowing which of their officials requested leniency for Libby outweighs the officials' privacy rights. If they used their public title in writing the letter, we have a right to know about it.
One other note: Team Libby does not argue the publication of the letters is prejudicial to Libby. Do they even have standing to contest the release of the letters to the media (which includes bloggers in this case) based on privacy rights of those not their clients....or on behalf of future defendants who likewise are not their clients? I don't think so.
Judge Walton should release the letters written by current public officials.
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