July 2007 — President Commutes Sentence of Government Official Convicted In Connection with the Disclosure of Identity of Former CIA Operative, Valerie Plame

In the perjury trial of I. Lewis "Scooter" Libby ( United States v. Libby ), arising from public disclosure of the identity of CIA operative Valerie Plame, the U.S. District Court for the District of Columbia on December 19, 2007, invited comments on a plan to limit the number of journalists in the courtroom during voir dire. A media coalition including NAA filed an application seeking open access to jury selection and daily audio recordings of the proceedings. In a second phase, on February 1, 2007, the Libby defense team opposed contemporaneous release of audiotape of Libby's grand jury test imony played in open court and introduced as exhibits. The media coalition joined by NAA briefed D.C. Circuit precedent establishing the common law right of access to copy trial exhibits and the principle that audio tapes, which enter the public domain once played and received into evidence, must be treated no differently from a court reporter's transcript, the parties' briefs and the judge's orders and opinions. In a third phase, on May 17, 2007, the court requested comments on disclosure of sentencing letters in the case to the media, but expressed concern about disclosing the names and personal information of the letters' authors. Journalists from the AP and The Washington Post had asked to see the letters. NAA joined a motion filed by the media coalition on May 25. On May 31, 2007, U.S. District Judge Reggie B. Walton issued an order indicating a release of letters, with some redaction of authors' personal information, but not prior to the June 5 sentencing.

The U.S. District Court for the District of Columbia on December 19, 2006, invited comments on a plan to limit the number of journalists present in the courtroom during voir dire . In response, on January 4, 2007, a media coalition including NAA filed an application on January 4, 2007, seeking both open access to the jury selection process and daily audio recordings of the proceedings.

Noting overwhelming public interest in the trial, and believing potential jurors would be less candid in response to voir dire questions when facing a roomful of journalists, the court on January 9, 2007, denied the applications, preferring to limit to two the number of journalists present in the courtroom where the live proceedings would take place. To preserve openness, the court said credentialed journalists would have access to a Media Center to view the proceedings through live closed circuit video and audio feeds (with no recordings of the feeds permitted), with a second viewing room for “the public and other journalists.” Characterizing these accommodations as unprecedented, the court said it would instruct jurors that they could answer questions at the bench if their responses would touch “on deeply personal matters” with a legitimate privacy interest, such as whether they had been victims of crime or suffered from health problems. The court rejected the application for audio or video recordings for subsequent public dissemination, on grounds that the Judicial Conference of the United States does not authorize dissemination of such recordings beyond enumerated exceptions that include broadcast of appellate arguments. Even if an official audio recording were produced (beyond one used by the court reporter), the court said it would not authorize its daily release, to avoid influence on jurors of arguments heard “anew” in the media in “an uncontrolled setting.”

In a second phase, on Thursday, February 1, the Libby defense team objected to the contemporaneous release of audiotape of Libby's grand jury test imony once played in open court and introduced as exhibit. In response, the following afternoon the news media coalition including NAA filed an Application setting forth D.C. Circuit case law on access to the tapes, and Judge Reggie B. Walton scheduled briefing for the weekend. The Libby defense team filed an Opposition on Saturday, February 3, seeking to block inspection and copying of the audio files. On Sunday, February 4, the news media coalition filed its Reply to the Opposition. The media coalition noted that the D.C. Circuit has always found the common law right of access to copy trial exhibits a sufficient basis to require access, without reaching the constitutional question of whether there is such a First Amendment right. The reply brief cited In re National Broadcasting Company, 652 F.2d 609 (D.C. Cir. 1981) ( Jenrette ); and Cottone v. Reno , 193 F.3d 550 (D.C. Cir. 1999), for the principle that audio tapes enter the public domain once played and received into evidence and must be treated no differently from a court reporter's transcript, the parties' briefs and the judge's orders and opinions. Further supporting contemporaneous release were United States v. Thompson , No. 89-3160, 1989 WL 248625 (D.C. Cir. Oct. 13, 1989)( per curiam ); and In re American Broad. Cos. ( Hinckley ) , 537 F. Supp. 1168 (D.D.C. 1982). While the Opposition cited cases ruling to the contrary from other circuits, the Reply noted that those cases had done so by expressly disagreeing with the strong presumption in the District of Columbia Circuit in favor of common law right of access. After oral argument Monday morning, February 5, 2007, the judge granted the news media's application for access to the Libby audiotapes, ruling from the bench that the tapes of the grand jury test imony could be released once played in their entirety to the jury.

On March 6, 2007, after 10 days of jury deliberation, Libby was convicted on four of five felony counts. Libby was found guilty of obstruction of justice, perjury and making false statements to the FBI.

In a third phase, on May 17, 2007, the court requested comments on disclosure of sentencing letters in the case to the media, but expressed concern about disclosing the names and personal information of the letters' authors. Journalists from the AP and The Washington Post had asked to see the letters. NAA joined a motion filed by the media coalition on May 25. On May 31, 2007, U.S. District Judge Reggie B. Walton issued an order indicating a release of letters, with some redaction of authors' personal information, but not prior to sentencing. Libby faced a possible 30 years in prison. On June 22, 2007, the court imposed a sentence of 30 months in prison, 2 years of supervised release, a fine of $250,000, and a special fine of $400.

In a Grant of Executive Clemency on July 2, 2007, President George W. Bush commuted the prison term, finding it “excessive” and leaving the other terms of the sentence in place. On July 15, Judge Walton granted probation despite reservations that the statute governing supervised release requires it be imposed only “after a term of incarceration.” In a footnote to his opinion, Republican appointee Walton wrote, "Although it is certainly the President's prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses (or even to decline to provide a reason for his actions altogether), the Court notes that the term of incarceration imposed in this case was determined after a careful consideration of each of the requisite statutory factors…and was consistent with the bottom end of the applicable sentencing range as properly calculated under the United States Sentencing Guidelines… [I]t is fair to say that the Court is somewhat perplexed as to how its sentence could accurately be characterized as ‘excessive.' "

First Published:
July 01, 2007