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.
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.