Judge’s Ruling Yet to Come; Will Libby Be On Probation?

Margie Burns

July 11, 2007, 8:45am
PT

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Guest blogged from DC by Margie Burns

These are interesting times. A short update on the most recent legal motions in the Libby case:

As we know, in a Grant of Executive Clemency on July 2, George W. Bush commuted all prison terms for I. Lewis ‘Scooter’ Libby. The grant states that it leaves “intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.”

What with Libby not having served any time, Judge Walton, the trial judge in the Libby case, ordered input from prosecution and defense on the question of whether there could be any “release” — and consequently any “supervised release,” i.e. probation.

First response came from Fred Fielding, Esq., now Counsel to the President. Fielding was the man who helped Nixon negotiate the shoals of the Watergate investigation — speaking of no jail time — concluding with Nixon’s resignation followed in short order by a presidential pardon even without a conviction — and, according to Nixon and then-President Gerald Ford, without even a request for a pardon. One sees why Fielding would be welcome aboard the current White House.

Fielding’s letter, dated July 6, remarks,

Although to date neither party has accepted the court’s invitation to solicit the White House’s view as to the impact of 18 U.S.C. [] 3583 on the remaining aspects of the sentence, we do feel compelled to share our views as guidance to the parties since this matter involves a plenary power of the President.

Fielding continues,

The White House takes no official position on the matter of statutory construction, in part because it is believed that such evaluation is not relevant in this case.

the President’s July 2nd Proclamation ‘flows from the Constitution alone, not from any legislative enactments,’ and therefore cannot be ‘modified, abridged or diminished’ by any act of Congress.

The President’s July 2, 2007 commutation of the prison term released the defendant from the Bureau’s [of Prisons] custody by directing any and all prison terms to “expire” in advance of all other components of the sentence, which remain “intact and in effect.” The remaining components of the sentence require the defendant, among other things, to report to the Probation Office immediately to begin his term of supervision.

it is the government’s position that the supervised release term remains operative, and that, by effect of the commutation, the supervised release term began on July 2, 2007.

As a constitutional matter, however, the President had the power to commute a portion of Mr. Libby’s sentence on the terms prescribed in the President’s July 2, 2007 Grant of Executive Clemency, notwithstanding any statutory provision that might otherwise conflict with the President’s action.

Mr. Libby does not take issue with the legal analysis contained in the July 6, 2007 letter from Fred F. Fielding, Counsel to the President (attached as Exhibit 1).

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Categories: Accountability CIA Leak Case Scooter Libby

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