Libby Doesn't Want Bloggers to Know Who Is Shilling for Him

by emptywheel

Update: OT, but here is the Govt memo on sentencing and related exhibits. You'll notice they say, about 10 different times, that Plame was covert covert covert covert covert.

I noted earlier that there was a mini-controversy brewing over whether the letters sent, arguing that Libby shouldn't go to jail because he's too important, should be released to the public. You may think I'm joking. But Jeffress is particularly worried about the letters getting released to you. To me. To 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.

Though, it's not that I'm really the mocking type--except perhaps of high-priced lawyers who try to mock ordinary citizens watching over the judicial system.

Before I get into Jeffress' heartfelt pleas supporting the privacy of Libby's shills, let me point out that Jeffress cites from his SCOTUS victory in which he protected the privacy of Nixon's tapes.

Finally, it merits noting that just because the media may seek access to the letters does not heighten the First Amendment interests before the Court, or otherwise tip the scales toward disclosure. "The First Amendment generally grants the press no right to information about a trial superior to that of the general public."

Gosh. I knew Jeffress would pull that out some time before we were done with this trial. What am I not surprised that he used it to protect the identities of Libby's shils, rather than to prevent the AP and Dow Jones from getting the backup to Fitzgerald's subpoena?

I especially like mocking high-priced lawyers who got their start defending Nixon.

Once Jeffress gets beyond the blogger problem, though, Jeffress makes an argument that sounds hauntingly similar to the arguments Dick Cheney made to ensure we didn't get oversight over his Energy Commission.

A practice of placing letters such as these into the public record would impair the frankness, and even the number, of letters submitted in future cases.

[snip]

Revealing these private communications, however, would chill the willingness of individuals in future cases from expressing their opinion in an honest or forthright manner or even at all.

While you're reading this, remember we're probably talking about Victoria Toensing and James Woolsey and Mel Sembler--the last two of whom will pesonally benefit if Libby's sentencing ends the scrutiny paid to the origins of the Iraq War.

And that's the problem with Jeffress' argument, logically (I can't speak for its legal validity). He claims there is no overriding interest in releasing the letters.

The well-recognized harms caused by disclosure would not be offset by any perceptible benefit to the Court or the public. Nixon viewed the interest vindicated by giving access to public records as "the citizen's desire to keep a watchful eye over the workings of [the government]." [Jeffress' brackets] ... Other principles seen as favoring disclosure of judicial records are the need for fostering public confidence in the administration of justice and encouraging informed civic discourse. ... Yet none of these interests support disclosing private letters mailed to the Court.

We, the public, do have a very big interest in seeing the letters and knowing who wrote them. Libby has managed to hide most of the names of the people who are paying for his defense. Since he has, by all accounts, served as the perfect firewall, we deserve to know whether those directly benefiting from Libby's lies are footing the bill to defend him. While Judge Walton may not be able to change the laws surrounding disclosure of legal defense funds, I hope he understands that seeing these letters allow us to see precisely who is behind Libby's defense.

Furthermore, given the likely authors of these letters (Fitzgerald notes they include "former and current public officials"), this really is about:

• The citizen's desire to keep a watchful eye over the workings of government: While Reggie Walton refused to let this become a case trying the Iraq War, it is a case about the selective disclosures that led us into the Iraq War. A great many "former and current public officials" are implicated in that process. If they are, at the same time, writing letters to ensure that no one is punished for such lies, it will do great damage to our government. (I'd also say that PNAC and AEI effectively serve as a shadow extension of this government, and the likelihood a lot of these letters come from such sources affects our ability to scrutinize the decisions of our government directly.
• The need for fostering public confidence in the administration of justice: After all, if Libby gets off easily because a bunch of VERYIMPORTANT people who may have just appointed Reggie Walton to the FISA Court weigh in in his favor, it will further undermine confidence in a judicial system that is undergoing a crisis. (Note, I'm not saying I suspect there was any funny business in the FISA appoint and I think Walton is very principled. But it's a question of Walton judging those who have significant power over him.)
• The need for encouraging informed civic discourse: This is, in addition to a limited debate about one convicted felon named Scooter Libby, part of a much larger debate about whether or not this Administration has deliberately dismantled important parts of our independent judicial system. Therefore, in this case, it is important for we citizens to see those letters.

Damn. It pisses me off when high-priced lawyers accuse me, a citizen trying to keep a watchful eye over  the workings of government, of mocking these proceedings.

Comments

[Albert Fall]

Shortest Jeffress:

Wahh. Wahh wahh wahh wahh.

Shorter Jefress:

If the public knew these people either supported a subverter of the Constition and supported treason, or they had been dragooned into offering letters of support because they were too cowardly to stand up to Cheney, the right sorts of people might tend to think less of them, perhaps even Republicans. And we might not win the next election, so where would we be?

[Markinsanfran]

Marcy, what is the precedent concerning releasing such letters? Is there any, one way or another?

[P J Evans]

What, the court can't order them released without identifying information? Is that what Jeffress is whining about?

That's a ridiculous argument, coming from a well-paid defense lawyer in a case involving classified information. Especially when the defense lawyer's client was found guilty (although, unfortunately, not of leaking that classified information).

[pdaly]

Nice post. I suppose Jeffress is giving the bloggers a back handed comment. There was a time when bloggers didn't even make the radar screen.

EW, a suggestion for the upcoming YKos.

Maybe you and other top bloggers could share your systems for sifting through tje information that is shaken out of breaking news/scandals. For example the USA scandal: with all those emails, to and by all those previously unknown foot soldiers, how did you take what was so amorphous and manage to give it shape?

[pdaly]

'compliment' I believe I did type.

[Albert Fall]

Griffin puts Rove in the room:

From tpm: http://www.tpmmuckraker.com/archives/003295.php

Rove rarely shows up directly, only by inference (Jennings, Sara Taylor, Goodling, Sampson).

Here, it looks like Griffin is reporting in directly to what he knows is the true chain of command.

[Dismayed]

Damn, EW. That was one hell of a write up. Bra-fucking-vo.

[Frank Probst]

I'm having trouble following Jeffress' logic here. I think what he's saying is this: If the court starts publishing the nice letters that people write, then people will stop writing nice letters to the court. Is he for real?

[emptywheel]

Frank

I think he's actually saying that, if people knew that Paul Wolfowitz and John Bolton were the guys hailing Libby's character, the argument would quickly become absolutely ineffective.

But he didn't really put it like that.

[Frank Probst]

EW: Yeah, but the judge knows who's writing the letters. It's the rest of us who are in the dark. I think Jeffress isn't really worried about us finding out who DID write letters. I think he's worried about us finding out who DIDN'T write letters. Because it would be a real PR disaster if it turned out that no one with a shred of integrity was willing to vouch for Scooter.

[emptywheel]

Frank

I highly disagree. If you look at Fitz' sidelined comment: that current and former public officials ought to be dealt with separately, it's a classic slow reveal on his part--he's giving the media org that wrote this request 1) the precedent to use to get the public official letters, and, I would suggest, suggesting that they are there and newsworthy.

[Frank Probst]

Hmm. Could be. I wasn't all that interested in who wrote letters for Libby, to be honest. I was more impressed with the big "Fuck you!" have gave to Babs Comstock. Very politely, of course. :)

[Veritas78]

Trials are public events. Judges' decisions are public. Everything that affects a judgment should be public.

That logic applies to executive decisions, too. I never understood the harm if someone was inhibited from giving an opinion to the President for fear of being made public. Secret advice is often bad advice. If you're trying to influence a public official, do it in public. The rest of us have a right to know what you said.

[bmaz]

EW@00:05 - Agreed completely. I have never breached this issue in Federal court; I'll see what i can find. Others will probably beat me to it. In state court here there is an easy way around the issue if you want to insure privacy of mitigation letters. There is no Constitutional rational basis for non-disclosure; in fact, I would suspect such an analysis would tend to support disclosure if it trended in either direction. Do you know if any media folks are going to weigh in on this legally? I think there is a basis for differentiation from both the average district court defendant and Jeffres' Nixon case in that the predicate acts behind Libby's convictions stem from direct conduct in the course and scope of his employment by, and duty to, the United States public citizenry. There is, at a minimum, an arguable public interest in, and right to, this information. This isn't grand jury material, it will be leaked sooner or later anyway, but I agree it should be made public now. If these fine citizens are so fucking proud of their Scooter, and their opinions of him, let the rest of us share in the basis.

[freepatriot]

this is a Public Trial, in an Open Court, sentencing a convicted felon, as part of the daily business of the People Of The United States

what reason could there possibly be to withhold letters from public view that were submitted to the judge in this case ???

if the people who submitted the letters had some reason to fear damage from writing the letters THEN THEY SHOULDN'T HAVE WRITTEN THE FUCKING LETTERS

it's THAT FUCKING SIMPLE

they submitted the letters KNOWING THAT THIS WAS A CRIMINAL TRIAL

fuck em, and the horse they rode in on

if you didn't want your association with a known felon to become public record, you shouldn't have submitted a letter to the Judge in the criminal trial

how fucking stupid can you be ???

Judge Walton, if you're reading this, feel free to copy and paste that into your ruling

[MayBee]

-he's giving the media org that wrote this request 1) the precedent to use to get the public official letters, and, I would suggest, suggesting that they are there and newsworthy.

It would be nice if he showed equal respect to media orgs requesting the Miller affadavits be unsealed.

[joejoejoe]

There is precedent for releasing the letters from United States vs. Robert W. Ney.

From MSNBC, 1/20/07:
"Prior to the sentencing, nine letters from citizens, most from Ohio, were sent to U.S. District Judge Ellen Huvelle and filed at court, asking the judge to impose the maximum sentence. One letter said, "I beg you to give him at least 27 months and if possible put an extra 0 on his sentence behind the 7." Another letter says, "If the punishment fit the crime, he'd be shot at sunrise." Also filed are 95 pages of letters from supporters of Ney, including his sister, asking the judge to be lenient. Ney's primary care physician, Dr. Renata Dela Cruz, wrote, "I became concerned that his use of alcohol was influencing his behavior."

Please release all the letters Judge Walton.

[Frank Probst]

Holy shit. I just skimmed the related exhibits you linked to. This is the first time I've seen this type of statement in an official government document: "She was assigned to the Counterproliferation Division (CPD) at CIA Headquarters, where she served as the chief of a CPD component with responsibility for weapons proliferation issues related to Iraq."

Allow me to translate the Beauracratese into English: "How fucking clear do we need to be? She was covert. Her job was studying WMDs in Iraq. She was deliberately betrayed because she and her co-workers weren't telling Dick Cheney what he wanted to hear. And unlike Judy Miller, she really was proven fucking right in the end."

BTW, I agree that the supporting documents say, "Covert covert covert covert covert." But that wasn't the big take-home message of the memo itself, which really said, "Liar liar liar liar liar!"

[pontificator]

Frank -- you're right, that Exhibit makes it "case closed" on the issue of Plame's status, and other important revelations.

This is an important document that I hope is given the attention it deserves by the media.

[pseudonymous in nc]

We, the public, do have a very big interest in seeing the letters and knowing who wrote them.

After all, public disclosure has been somewhat lacking right through this case, from the in-house rules of Miller and Russert towards those in power right through to Tucker Faye Carlson's curious omission of his poppy's role in the defence fund.

[Jeff]

I'll just add that another, albeit minor, conservative talking point bites the dust: we've known for a while that Plame took a leave from the CIA for about a year, but the conservative talking point has insinuated and in some cases claimed that the leave was involuntary, the idea being that it was forced upon her because of something untoward about her or her conduct. Wrong again. From the unclassified summary of Plame's CIA employment and cover history:

In September 2004, Ms. Wilson requested and received permission to be placed on leave without pay for personal reasons. She returned to duty in August 2005.

[MayBee]

but the conservative talking point has insinuated and in some cases claimed that the leave was involuntary,

There was a newspaper article (what was it? A London paper, IIRC) that said as much. Seems to have been untrue.

If it is this clear she was covert, I'm surprised she isn't suing Harlow and Grenier for not making that clear when they told people outside the CIA about her.

[earlofhuntingdon]

Many of the "I Love Scooter" letters, no doubt, are from public officials, presumably including Mr. Cheney, and from paid hacks, liks Toensing and Carlson. The letters from public officials and public persons were filed as part of the public record, subsequent to the public trial and conviction of a public official, in the case of a lawyer and top White House official convicted of obstructing justice in an investigation involving leaks of classified national security information.

It seems abundantly clear that the public is entitled to know why public officials and other public persons think Lil' Scooter is entitled to leniency, and why he should not to start serving his term pending the outcome a two to three-year appeals process.

It may be inconvenient to his supporters that bloggers can analyze a matter repeatedly and to a finer degree than one or two passes in the mainstream press, and that they can record their criticism in a dialogue not possible in one-way print and broadcast journalism. It may feel strange to Mr. Libby that he can no longer wield the power of the White House to manipulate the press in his favor. But those feelings are common to average citizens and convicted felons alike. They are legally and morally irrelevant to the issue of the public's right to know.

Given Mr. Libby's privileged upbringing, his private schools and two Ivy League degrees, including a law degree, his decades of govt service, and years spent defending white collar criminals, the behavior for which he was convicted is even more egregious than that of a violent criminal. Further, he did not have to make do with a public defender, struggling under a caseload made worse by govt underfunding. He had the best criminal defense team that millions of donated dollars could buy. He was convicted of four felonies.

Moreover, his wrongdoing may have affected thousands or more. He has knowingly descended from a model of behavior to a model of public corruption. He deserves no harsher treatment than a violent criminal, no lighter treatment, either. He should start serving his sentence.

[MayBee]

It's interesting that Fitzgerald has included the Waxman hearing as an exhibit. Did you see that the Feb 12 memo written by Plame has now been released?

[Jeff]

There was a newspaper article (what was it? A London paper, IIRC) that said as much. Seems to have been untrue.

Evidently it was untrue. That'll teach conservatives to be so credulous of the MSM, no?

If it is this clear she was covert, I'm surprised she isn't suing Harlow and Grenier for not making that clear when they told people outside the CIA about her.

I really doubt there's any grounds for suing Grenier. Sure, he rightly felt guilty for what he did. But strictly speaking, he had good reason to think that Libby had basically every clearance known to humanity, and after all he'd signed those NDAs. Plus there's not much historical precedent for senior government officials blowing the cover of covert CIA officers.

As for Harlow, there's no question he did wrong by her. Maybe it's an ordinary legal-strategic decision that suing the CIA spokesman would muddy up the case they have to make. But there's probably also the reflection that he may have just done a poor job of dissuading Novak under difficult circumstances, and it being clear that Novak had heard about Plame from senior administration officials, he gambled wrong, essentially conceding the knowledge that she was associated with the CIA in order to try to suggest to Novak that he refrain from publishing, whereas, Novak being Novak, the better judgment would have been simply to deny up and down any knowledge of any affiliation Valerie Plame or Valerie Wilson or Joe Wilson's wife had with the CIA. And I remain perfectly open to the possibility that Harlow was sort of sitting on the fence, since after all he was a righthand man to Tenet.