No Easy Answers

RESPONSE OF MR. I. LEWIS LIBBY TO COURT'S ORDER OF MAY 29, 2007


On May 29, 2007, the Court raised the question whether the media has any right to access
to sentencing letters prior to the 7une 5, 2007 sentencing hearing. Mr. Libby opposes disclosing
any of these private letters prior to sentencing absent their author's consent as the media
possesses no right of access and, even if it did, such a right would be overcome by countervailing
policy and privacy interests.

ARGUMENT


Any common law right of access to judicial records is necessarily predicated on an
underlying action by a court. The D.G. Circuit has clearly stated that this right of access
"assumes a judicial decision. If none occurs, documents are just documents; with nothing
judicial to record, there are no judicial records." United States v. El-Sayegh, 131 F.3d 158, 162
(D.G. Cir. 1997). In El-Sayegh, the court held that no common law right of access existed to an
unexecuted plea agreement because no judicial decision had been made. Id. at 162-63. The
same is true here. With the possible exception of the small fraction of letters referenced in Mr.
Libby's forthcoming sentencing memorandum, no judicial action or proceeding which could
convert the letters at issue from private correspondence into judicial records will occur prior to

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sentencing. Therefore, during this period, the common law does not reach the majority, if not
all, of the letters in question.

Even if the letters are considered judicial records subject to a common law right of
access, disclosure is, as a general rule, unwarranted. See United States v. Kushner, 349 F. Supp.
2d 892, 909 (D.N.7. 2005) (holding that sentencing letters "should generally not be accessible
under the common law"). This is particularly true with respect to the bulk of the letters before
the Court - letters from private individuals which have not been referenced by any sentencing
memoranda. These letters should be afforded, at most, a de minimus presumption of access.
United States v. Kushner, 349 F. Supp. 2d 892, 907-09 (D.N.7. 2005) (stating that letters such as
these are subject to a "weak or non-existent" presumption of access). Such a threadbare
presumption of access cannot outweigh the substantial privacy and policy interests in favor of
maintaining the confidentiality of the sentencing letters. See Response of Mr. I. Lewis Libby to
Court's Order of May 17, 2007, at 3, 4-8 (Dkt. 348).' Moreover, providing the public with
access to this group of sentencing letters prior to, rather than after, sentencing would not
advance the principles courts associate with disclosure. See generally IN re Reporters (Committee
for Freedom of the Press, 773 F.2d 1325, 1336-37 (D.G. Cir. 1985) (noting that the benefits of
an open trial, such as ensuring the appearance of fairness and checking judicial misconduct,
would not be "enhanced by access to documents . . . before judgment rather than after") (Scalia,

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1 It merits noting that the media's ar&_nent by implication that the privacy interests must be significant to
overcome any presumption of access misses the mark. See Application for Access to Letters Directly Sent to the
Court Concerr_ng Sentencing at 9, IN re United St#tes v. Libby, 1:07-mc-00228 (RBW). None of the cases cited by
the media make such a sweeping statement. In fact, simply writing the Court to express one's "opi_ons about
Defendant and the appropriate pu_srment" alone favors protection from disclosure. United St#tes v. L#wreNce, 167
F. Supp. 2d 504, 506, 508 (N.D.N.Y. 2001). Several letters before the Court go farther, however, and "reveal the
nature of the writers' personal relationships with the defendant" or otherwise share personal details about the
author's own back&ound. United St#tes v. Gotti, 322 F. Supp. 2d 230, 250 (E.D.N.Y. 2004). Such honest and
forthright commu_cation enhances the Court's pre-sentence fact-finding and its ability to fashion a just sentence,
and, accordingly, have historically been kept confidential. Kushner, 349 F. Supp. 2d at 909. This Court should do
no less.

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7.). No oversight or need for a "watchful eye" is necessary over an action that has not occurred.
See Ni_oN v. WarNer (Communications, INC., 435 U.S. 589, 598 (1978).

The media may argue that disclosing these letters functions as a check on the Court's
decision-making or otherwise fosters public confidence in the administration of justice. This
argument, however, is inapposite prior to sentencing. Courts favor providing access to letters
such as these only when they are "explicit[ly] reference[d] . . . at the hearing" as significantly
influencing the defendant's sentence. Kushner, 349 F. Supp. 2d at 906 (emphasis added)i see
also Gotti, 322 F. Supp. 2d at 250 ("if the letters should have a sigN_caNt impact on the court's
sentence, the public is entitled to know that") (emphasis added)i L_wreNce, 167 F. Supp. 2d at
509 (precluding disclosure where "the specific contents of the letters sent directly to the Court
did not play a sigN_caNt role in the exercise of the Court's judicial power") (emphasis added)i
see generally Kushner, 349 F. Supp. 2d at 907 (finding that no heightened presumption of access
applies to groupings of letters referred to collectively by the court at sentencing). This obviously
does not apply pre-sentencing because the necessary underlying event, Mr. Libby's sentencing,
has yet to transpire. Moreover, any determination of which specific letters significantly affected
the Court's final decision is best made after the Court has stated its rationale for Mr. Libby's
sentence.

United States v. Kushner is instructive on this point. Upon a pre-sentencing motion by
the media for access to letters, the court rejected disclosing sentencing letters from private
individuals unreferenced in the parties' sentencing memoranda, e_cept for those the court
explicitly relied upon at sentencing, which would only be made publicly available at sentencing.
349 F. Supp. 2d at 896 n.3. In the only other case to address a pre-sentencing request for access
to letters, the court rejected disclosing sentencing letters. See United States v. Boes_, 674 F.

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Supp. 1128, 1129-30 (S.D.N.Y. 1987). Indeed, the defense is aware of no case in which the
court prior to sentencing disclosed sentencing letters from private individuals unreferenced in
any sentencing memorandum. Accordingly, disclosure of such letters is inappropriate prior to
sentencing.

As implied above, courts have applied a heightened presumption of access to those letters
referenced in sentencing memoranda and, to a lesser extent, from current or former public
officials. 2 See Kushner, 349 F. Supp. 2d at 905-907. The Court has received letters from public
officials and Mr. Libby's forthcoming sentencing memorandum will reference letters from
private individuals and public officials. 3 The policy considerations referenced above still favor
not disclosing these letters prior to sentencing.

CONCLUSION


For the aforementioned reasons, Mr. Libby respectfully requests that the Court not
disclose any sentencing letters prior to the sentencing hearing.

Dated: May 30, 2007 Respectfully submitted,

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2 The media attempts to extend the recognized public official exception to letters submitted by "public figures."
Application for Access to Letters Directly Sent to the Court Concerning Sentencing at 7, IN re UNitedSt#tes v.
Libby, 1:07-mc-00228 (RBW). The Court should reject this. The only case cited by the media on this point, United
St#tes v. Kushner, addressed letters submitted by current and former public o_ficials and did not extend any
presumption of access to letters from public figures. 349 F. Supp. 2d at 906-07.

3 Mr. Libby's sentencing memorandum does not idenú_ the authors of the various letters it references. M. Libby
therefore respectfully requests that, should the Court decide to disclose the letters, either prior to sentencing or
afterwards, that the names, addresses, and all other identi_ing or personal information (e.g., current occupation,
place of employment, relationship to M. Libby) be redacted.

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Mr. Libby's forthcoming sentencing memorandum discusses the contents of several letters sent
on behalf of Mr. Libby. The memorandum does not identify the authors and Mr. Libby
respectfully requests that, should the Court choose to disclose these letters, the names, addresses,
and all identifying information be redacted from the letters.


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posted by cboldt  # 5/30/2007 10:30:00 PM