The Libby Tapes
posted by Dave Hoffman
Reading news reports tonight about the Scooter Libby trial, one might imagine that matters of some constitutional note are up for grabs. MSNBC leads:
Reporters file to get Libby recordingsJudge will decide Monday whether to release grand jury testimony
Given the medium, and the cast of characters, we might almost think we’ve got another US v. Nixon on our hands.
Reading the reports in the mainstream press, I got the very strong sense that the judge was considering closing the courtroom while the prosecution played certain grand jury proceedings before the jury. Given the Republic’s long tradition of closed trials, but recent move toward sealed dockets, this would indeed be a problem of some significance.
Reading the blogs, I realize that this is just about finding a way to feed the beast on a slow news day. It’s pretty clear that the news media want the actual tapes – a mere transcription isn’t going to do – and think that they have a constitutional right to access them. That is, the grand jury testimony will absolutely be released on Monday, and it will be heard, in Court, before the jury. The reporters merely want rebroadcasting rights.
This strikes me as a hard argument, especially where (as Judge Walton no doubt realizes) the additional prejudice from publicity can only create grounds for appeal. I’m with Justice Souter and Chief Justice Roberts. Courts don’t exist to entertain the public, but to resolve disputes and administer justice. Whatever value that the public might potentially reap from listening to GJ tapes, it could get more by reporters spending the time trying to put the transcripts of such tapes in context. Indeed, I simply don’t understand the normative force of the right-to-cameras-in-trial as an initial matter.
(I’m also unclear why this issue couldn’t have been litigated before the trial through limine practice. It seems, from Slate’s description, that the jury waited 4 hours while counsel resolved a similar problem this morning. And folks say that there should be more trials? But I’ve griped enough for one evening.)
February 2, 2007 at 11:47 pm
Posted in: First Amendment
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Responses (2)
John - February 3, 2007 at 12:45 am
I agree that it’s somewhat trivial and journalists could find a far better use for their time. But…
Assuming the public right to a record of the court proceedings, why should the presumption be against sharing anything other than text transcripts.
If the principle of public access is at play, then it seems to me the courts should have the burden of justifying why any particular media version of the record is held back.
RCinProv - February 3, 2007 at 11:16 am
And what, I wonder, makes the transcription so “mere”? Looks like a rhetorical sleight of hand to me. Transcripts are *not* the same as tapes for a host of reasons that should be apparent to anyone who has ever tried to assess the credibility of witnesses. So there is more than entertainment value at stake; and transcripts are often lame substitutes for tapes.
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