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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    my take on this is that a whole bunch (5.00 / 2) (#5)
    by scribe on Mon May 28, 2007 at 05:02:15 PM EST
    of the letters were written by the usual cadre of clowns who preach "lock 'em up forever and throw away the key, but not until you torture them into insanity", insofar as that applies to the poor, the non-white, and the disenfranchised (in one way or more).

    It Would Not Do For These Clowns to be shown to be the hypocrites they are when they go to the judge to beg that he keep Mr. Lily White Rethuglican Ueberlord out of the slammer until Bushie can pardon him.  It Might Hurt to have their hypocrisy a matter of public record.

    All the letters should be released.

    And, no, Scooter does not have standing.  If there's one thing Rethugs have spent the last 35 years working on, it's limiting standing.

    As to his sentence, he should be glad I'm not the sentencing judge.  Booker makes the guidelines advisory, not mandatory.  Prof. Berman, over at Sentencing Law and Policy, has noted recent studies showing Courts of Appeals have routinely overturned downward departures as unreasonable and been far less likely to overturn upward departures as unreasonable, IIRC in some circuits by as much as a 9:1 ratio.

    The point is, taking into account all 6 of the statutory factors that the judge is supposed to consider (of which the guidelines are merely one), I can easily come up with an argument - and support it by existing precedent (preferably and likely uniformly where the defendant was poor and/or of color) - for giving Scooter-boy the max.

    How much harm to society?  Well, his lies were a part of covering up the whole lying genesis of the Iraq war - half a million dead.  Compare that to the harm to society by that aspiring rapper (whose name escapes me as I write this) who got 57 years under mandatory minimums for legally having a gun at home while dealing drugs in his car.

    Or, compare it to any number of the women doing the full 10 or 20 for drug conspiracy where all they did was pick up the phone and hand it to their lowlife drug-dealing boyfriend and wound up having no information to trade.

    Deterrence value?  From one of the 4 most powerful men in the government of the most powerful nation in the world to 25 years in a federal dungeon?  Sounds to me like a good reason to be honest when the FBI and grand jury come

    Use of special skills or position?  Viz. above - the truism that the most dangerous traitors are those who had first been most trusted applies in spades here.  He could not have done the damage he did without exceptionally special skills.

    Potential for future dangerousness?  How about "his actions (along with the VP) burned a decades-long attempt to infiltrate and short-stop the illegal market in technology usable for nucelar weapons.  We don't know how many cities must die because of this little fit of pique - but almost certainly some will.  We don't know how many avoidable wars (even where the proliferation really, reaally exists) will have to be fought because of this conspiracy, but there will be some."

    Besides.  "He's a lawyer - he should know better."

    we will see some -- maybe all -- of them. (none / 0) (#11)
    by the rainnn on Mon May 28, 2007 at 07:35:56 PM EST
    uh-huh what you said.

    now, as i argued here on
    saturday -- there is clearly
    a good deal of precedent to
    suggest judge walton OUGHT
    to allow disclosure -- though,
    for the moment, the government,
    led by patrick fitzgerald, has
    taken no position on the matter
    . . .

    the new york times ought to seek a
    declaratory-judgment that the letters
    are judicial records, and as such, should
    be made public.

    . . .i note that in cases where access
    was held not warranted, it was very narrowly
    tailored -- only the names of  unindicted
    co-conspirators, for example, in stoneman were redacted.

    the privacy interest was reputational -- presumably
    the unindicted co-conspirators did not ask to be in-
    vestigated.  clearly, anyone who wrote a letter for
    mr. libby made a choice to do so.  the government
    did not put the letter-writers in the middle of
    one of the more important high-ranking-govern-
    mental-agents' wrongdoing cases of the last twenty
    years. no, they made that choice, on their own.  it
    must be noted that -- given the level of suspicion
    about concerted action on the part of the white house,
    including the office of the vice president, and his
    former chief of staff, the american people and press
    possess a very legitimate interest in being sure that
    everything -- everything -- with respect to mr. libby's
    sentencing is handled up in the sunshine, not below-decks.

    so -- the letter-writers having their
    names disclosed may well be a simple
    consequence of the peoples' right of
    access -- given the high-profile, and
    extremely newsworthy nature of the
    crimes mr. libby committed, and for
    which he was convicted.

    so -- based on the precedents cited in
    kushner, at my site -- the most-salient inquiry is:

    to what extent will judge walton rely,
    in his ultimate judicial/sentencing
    decision-making process -- on any
    or all of the letters? -- this, at
    least as to letters not from public
    officials, will be the key factor in
    making the disclosure determination.

    as to any letters from public officials:
    those, almost certainly, will be disclosed.

    that said, timing is very important
    here, though. the letters, almost certainly,
    won't be seen until after his
    sentencing-order has been entered. . .

    so -- it is pretty clear that for
    every letter upon which judge walton
    relies in his sentencing, the public
    has a presumptive right of access.

    and, for every letter submitted by
    any public official -- regardless of
    whether judge walton relies on the
    letter in sentencing -- there is a
    presumptive right of public access.

    now i am just rambling, 'cuz i am so
    worked-up about these clowns trying
    to be sure that they are judged by
    differing standards that the rest
    of us  -- the unwashed masses. . .
    it is as though they feel we should
    bow humbly, tugging at our forelocks,
    before them. . .  not i.  nope.  not i.



    How are these letters... (5.00 / 1) (#8)
    by Dadler on Mon May 28, 2007 at 05:30:40 PM EST
    ...any different than character witnesses in a trial?  If we can hear the witnesses, we can hear the letter writers.

    Oooohh, the horror! (5.00 / 1) (#10)
    by Sailor on Mon May 28, 2007 at 06:58:33 PM EST
    golly, someone might mock them! Pffft.

    Can you imagine? (5.00 / 1) (#12)
    by scarshapedstar on Mon May 28, 2007 at 09:43:35 PM EST
    Somebody mocking the Bush Administration? Man, then we'd truly know the Terrorists Had Won.

    Yes (none / 0) (#1)
    by squeaky on Mon May 28, 2007 at 02:57:08 PM EST
    If they are truthful and cast such a postive light on Libby  as they are meant to, let us see them.

    We need to see the other side of the story. Maybe Libby is a fabulous guy, stellar citizen and tireless public servant:

    Convince us. Show us the letters. What possible harm could come of getting a true picture of Libby and his supporters?

    Libby Letters (5.00 / 1) (#2)
    by nellieh on Mon May 28, 2007 at 03:16:57 PM EST
    They are not secret or classified. Anything connected with the conviction and sentencing should be made public. It was the United States of America v. I. Lewis Libby.That's 'us agin him.' If it matters it should be made public. If the writers don't want to be recognized for their loyalty to a criminal, they shouldn't have written the Judge. The sentencing is part of the trial and all but any classified information if it was used should be open to the public. Especially if the Judge is receiving bogus information just to sway for a lighter sentence. I think Judge Walton will do the right thing. After all he IS a Steeler fan! Isn't it ironic that he let Judy sit behind bars until the Aspen roots did something and now she has a hand in putting him there.

    I can't wait (none / 0) (#3)
    by ltgesq on Mon May 28, 2007 at 03:49:40 PM EST
    Scooter is so used to leaking stuff that helps him, and declaring classified any damamging material, that this is true to form.

    I, for one, am just waiting to mock the letters.

    Besides (none / 0) (#4)
    by squeaky on Mon May 28, 2007 at 04:04:57 PM EST
    As someone said at the last hurrah:

    We will finally get to see who in this corrupt administration actually may have some integrity:

    Those who did not write letters on Scooters behalf.

    What is the B I G D E A L ??? (none / 0) (#7)
    by speedemon on Mon May 28, 2007 at 05:14:28 PM EST

    You don't know who is gonna step up for him and why?

    Get a clue please!

    Libby sentencing (none / 0) (#9)
    by naschkatze on Mon May 28, 2007 at 05:53:06 PM EST
    Well, Jeralyn, I hope next week proves your recommendations to be right on both of your recent posts on Libby:  that his sentence will be based on the crimes on which he was found guilty and not on those which he (nor anyone else, hrrmmph!) was charged with and on the disclosure of letters of petition from official figures.  I guess my rationale is kind of a vague one based on OPENNESS.

    Forget pols, I want the journalists' letters (none / 0) (#13)
    by jerry on Wed May 30, 2007 at 03:06:56 PM EST
    I gather some journalists wrote in support of Libby.

    I don't care what the pols say, I know they are partisan.  I want to see what our "neutral" journalists had to say.  The same guys that are so "neutral" and worried about "objectivity" that they do not let themselves vote.

    "Pols" (none / 0) (#14)
    by diogenes on Wed May 30, 2007 at 10:53:59 PM EST
    If a a public official writes a letter as a private citizen rather than as a public officer, then shouldn't it be private?  Depends on what stationery it's written on and on the title in the signature.