The first issue is whether the letters are judical documents traditionally withheld or public records accessible to the public.

The second issue, assuming they are public records, is whether there release would impair the administration of justice.

The key here is that not all sentencing letters play a large role in the adjudication process. Therefore, not all sentencing letters become public records accessible to the public. Therefore, not all sentencing letters are accessible to the public. Furthermore, not all sentencing letters are benefical to the public discourse or add confidence in the adminstration of justice. Sentencing letters can be public records that are accessible to the public under rare circumstances.

So if sentencing letters are released only under extraordinary circumstances, it’s hard to imagine they would produce a chilling effect severe enough to prejudice all future criminal defendents.

The third issue is whether there release is benefical to the addition of the public discourse and confidence in the administration of justice.

Team Libbys says a big no to both. But then argues because of the extraordinary media attention, the authors would become subject to public scrutiny “they did not and should not have known” they would recieve if the letters were released. However, the silver bullet is the authors have not expressed such to the court or in the letters themselves. Team Libby implies this from the personal nature of the letters. Team Libby argues the personal nature would subject the authors to public scrutiny – but that seems like a pretext considering Libby acted as a firewall.

As long as the authors remain silent, its hard to argue that they object to a release due to their fear unwanted public scrutiny based on an implied confidence that could be pierce under the circumstances. Also, if they fear public scrutiny over the letters, it’s hard to argue the letters are not benefical to the public discourse. Plus, the authors are former and current public officals.

What you seem to be saying is that “sentencing letters” should only be seen “in camera” by the Judge. I do not understand if you also mean that the probation officer and prosecution has a right to see sentencing letters submitted by the defense and vice versa.

I would not think that there should be any expectation of privacy accorded to the writer of a “sentencing letter” and any submission to the Court by anyone should be a matter of public record, even if filed under the defacto seal which seems to be accorded to sentencing letters. Certainly, Libby, a convicted felon and proven piece of shit does not deserve any privacy rights in the context of the sentencing letters. What concerns me is any sentencing letter which tries to influence the Court on the basis of Libby’s so called record of public service which is just part of Libby’s contiuning self serving and and self-promotion which has marked his career. Any such sentencing letters should be disclosed so they can be scrutinized.

My reaction to Libby’s concerns is one of wild speculation. Just suppose that some number around 200 people wrote warm, personal letters of concern for a poor beleagured and unfairly prosecuted guy whose only crime was forgetting something or being confused while terrorists were at the gate. And, some 10,000 letters arrived (recall the scene in “Miracle on 34th Street” where postal workers lug bags and bags of letters to the judge and nearly bury him)carrying the message that people across the country are outraged that a confidente to POTUS and VPOTUS, a learned counsel, lied to a grand jury and the FBI in the matter of “outing” a CIA operative in a time of war!!

If you were Libby or Libby’s controllers, would you like them apples in the newspapers across America?!

OK, maybe it’s a crazy thought. OTOH give yourself your best shot at just how many letters were received and which way they might tilt. ;)

Judge Walton can’t change it, but IMHO the law should be changed for nonprofits in general. There are too many ‘charities’ that are too close to being political entities, and it’s time for everyone to see who’s giving what to whom.

Maybe below a certain line – $1000/year, maybe – contributions could remain anonymous, but above that, it shouldn’t matter if a nonprofit is a church or a political campaign: their donors and the amounts they give ought to be public.

The second issue, assuming they are public records, is whether there release would impair the administration of justice.

The key here is that not all sentencing letters play a large role in the adjudication process. Therefore, not all sentencing letters become public records accessible to the public. Therefore, not all sentencing letters are accessible to the public. Furthermore, not all sentencing letters are benefical to the public discourse or add confidence in the adminstration of justice. Sentencing letters can be public records that are accessible to the public under rare circumstances.

So if sentencing letters are released only under extraordinary circumstances, it’s hard to imagine they would produce a chilling effect severe enough to prejudice all future criminal defendents.

The third issue is whether there release is benefical to the addition of the public discourse and confidence in the administration of justice.

Team Libbys says a big no to both. But then argues because of the extraordinary media attention, the authors would become subject to public scrutiny “they did not and should not have known” they would recieve if the letters were released. However, the silver bullet is the authors have not expressed such to the court or in the letters themselves. Team Libby implies this from the personal nature of the letters. Team Libby argues the personal nature would subject the authors to public scrutiny – but that seems like a pretext considering Libby acted as a firewall.

As long as the authors remain silent, its hard to argue that they object to a release due to their fear unwanted public scrutiny based on an implied confidence that could be pierce under the circumstances. Also, if they fear public scrutiny over the letters, it’s hard to argue the letters are not benefical to the public discourse. Plus, the authors are former and current public officals.

Barry says:

May 28th, 2007 at 6:24 pm

. . .I didn’t bother to continue and read the Court’s opinion subsequently issued, and I cannot say whether Kushner really stands for the propositions for which it is cited, but these guys really have guts to cite Kushner at all without mentioning what Judge Linares actually did when confronting a similar problem.

Now Kushner is merely the opinion of another District Judge from another District Court, and certainly not binding precedent but treating it that way is at least questionable. Needless to say, I didn’t bother to pull any other cited cases. . .

barry — i did — on both counts. . . and while
i agree that team libby has chutzpah — they
likely doomed their effort to avoid almost
all of the letters becoming public, at least
in part, as to each. . .

stoneman is a pretty good precedent, as
are several of the others — it will all out;
after sentencing.

and.i.can’t.wait.

good to see your confirmation, though.

jayt @ 121

George A. @ 103

You mean besides its being ridiculously unconstitutional?

And, fwiw, I think that if GWB refuses to go, the torches and pitchforks come out; millions descend on Washington D.C. I’ll be there.

Just pass the word that this interferes with one’s right to bear arms. Because, you know, it probably would, when push comes to shove.

Here’s a link Allen L Roland that gives some info on this Directive.

Also read Posse Comitatus Act and see the changes in it.

And one should also re-read Military Commissions Act of 2006.

That’s why this new Directive scares the crap out of me. And is should scare everyone else too. This is a dangerous Executive Order by Bush and should be challenged by our representatives. If not than we are in real danger of losing our freedoms.

George A. @ 103

For all the legal eagles here at FDL….

Have any of you read the new presidential order signed on May 7th or 9th yet? If so what are the implications for America as a country? If not here it is National Security and Homeland Security Presidential Directive.

Than please let me know if anyone really thinks that Bush will ever step down.

You mean besides its being ridiculously unconstitutional?

And, fwiw, I think that if GWB refuses to go, the torches and pitchforks come out; millions descend on Washington D.C. I’ll be there.

Just pass the word that this interferes with one’s right to bear arms. Because, you know, it probably would, when push comes to shove.

I skipped past the headnotes and got as far as the Court’s Order:

—–
On December 30, 2004, the Court entered an Order granting Media Intervenors’ motion to intervene and allowing access to the sentencing memoranda and certain of the letters.FN3 The Court indicated in said Order that this Opinion would follow.

FN3. The full text of that Order is as follows:

The Court having considered the motion of the Newark Morning Ledger Company and North Jersey Media Group Incorporated (“Media Intervenors”) to (1) intervene in the instant action and (2) obtain access to all sentencing letters and sentencing memoranda submitted to the Court,

IT IS on this 30th day of December, 2004,

ORDERED that

(1) Media Intervenors’ motion to intervene is GRANTED;

(2) the Government’s sentencing memorandum, with appropriate redactions in order to preserve the confidentiality of grand jury matters, ongoing investigations, and otherwise sensitive information, shall be made available;

(3) defendant’s sentencing memorandum shall be made available;

(4) letters excerpted or explicitly referenced in defendant’s sentencing memorandum shall be made available;

(5) letters submitted by current and former public officials shall be made available;

(6) letters other than those excerpted or explicitly referenced in defendant’s sentencing memorandum and those submitted by current and former public officials, whether submitted directly to the Court or by counsel, shall not be made available, subject to the Court’s explicit reliance on individual letters during the sentencing proceedings, which letters shall be made available at that time; and

(7) letters other than those excerpted or explicitly referenced in defendant’s sentencing memorandum and those submitted by current and former public officials, whether submitted directly to the Court or by counsel, to which the Court makes reference during the sentencing proceedings, but only with respect to the sheer quantity of said letters rather than individual content, shall not be disclosed.

The Court will file an Opinion elaborating upon this Order.

(Linares, J., Order of 12/30/04.)

I won’t bother to restate Judge Linares’s clear order, but it seems to be a nuanced way of dealing with the problem. Current and Past Public Officials wouldn’t give everything that the media may wish, but I’m sure it gives a lot.

I didn’t bother to continue and read the Court’s opinion subsequently issued, and I cannot say whether Kushner really stands for the propositions for which it is cited, but these guys really have guts to cite Kushner at all without mentioning what Judge Linares actually did when confronting a similar problem.

Now Kushner is merely the opinion of another District Judge from another District Court, and certainly not binding precedent but treating it that way is at least questionable. Needless to say, I didn’t bother to pull any other cited cases.

albert fall @ 100

A 6-degrees-of-Scooter-Libby corruption database should be a snap for the blogosphere to assemble once the names come out.

You mean like this?

Oooooh…..

That’s even better than I expected.

Marie Roget @ 62

Good afternoon from L.A.

An excellent post, JH, for this Memorial Day p.m. About to start backtracking FDL posts & comments from the last couple vacation days (just got back from camping upstate).

The photo of Patrick Fitzgerald giving a speech in the link below is an interesting one. The audio files that go w/it also:

Fitzgerald Amherst Commencement Speech, Q&A

How was it up near Lompoc?

[I am 4 days from Alaska…]

Hi, MP. Took me this long to read the last 2 dys. of posts & get back to here. Jalama/Lompoc was amazingly beautiful & refreshing, thanks for asking :) Take pix in Alaska- I’m sure everyone here would love to see ‘em…