Judge: Libby order surrounded by doubt
A federal judge suggested on Thursday that President Bush had come very close to acting unconstitutionally in the way he fashioned legal relief for former vice presidential aide I. Lewis Lobby, but the judge ultimately concluded that he had to uphold the President’s clemency action. In a ten-page opinion bristling with actual and implied criticism of the President’s handling of the Libby commutation, U.S. District Judge Reggie B. Walton found that a 1974 Supreme Court ruling dealing with a quite different situation was broad enough to take away a court’s discretion to rule against the President. (The case is U.S. v. Libby, District Court docket 05-394.)
As a result, the judge ordered Libby to report to a probation officer during the day on Friday, to begin serving a two-year term of supervised release — a part of Libby’s criminal sentence that the President left in effect on July 2 even as he spared Libby any time in prison under a 30-month sentence. Moreover, in a sternly worded footnote, Judge Walton warned Libby that if he failed to comply with any condition of his supervised release” — something the judge said he did not think would occur — Libby would have to go to prison for that two-year span. Moreover, the footnote said Walton interpreted Libby’s formal acquiescence in the President’s order leaving intact the supervised release punishment as a waiver of any right to challenge that provision. It was unclear whether this was a finding that Libby could not challenge that part of the sentence in his pending appeal to the D.C. Circuit from his conviction for lying to federal investigators and a grand jury in the CIA leak probe.
The legal and constitutional issue that was before Judge Walton was whether the President had the authority to wipe out Libby’s prison sentence, but at the same time leave in force the term of supervised release. Walton has noted that the “plain language” of the federal law governing such a release specifies that it is only to be imposed after “a term of imprisonment.” But Libby has served no prison time, and won’t, under the President’s clemency decision, so Walton had raised the question of the continuing validity of the supervision.
In upholding the President’s action, “with great reservation,” Judge Walton relied upon the Supreme Court’s decision 33 years ago in Schick v. Reed for the proposition that the President’s constitutional powers of clemency includes the authority — at least in some situations — to modify a criminal sentence even if that does not follow the requirements spelled out by a federal law.
Walton went on to spell out his reluctance to give in to the Schick precedent, suggesting that it did not involve the same circumstances that were at issue in the Libby sentence controversy. He also relied heavily upon the dissent in Schick by Justice Thurgood Marshall, which argued that a President might violate the constitutional doctrine of separation of powers in undertaking to rewrite an existing law.
By commuting Libby’s prison sentence and leaving the term of supervised release in place, Walton wrote, “the President has effectively rewritten the statutory scheme on an ad hoc basis to make the punishment created by Congress applicable to a situation that Congress clearly did not intend. While the President is undeniably empowered through the Constitution to mitigate in length or severity, or annul altogether, a punishment determined by Congress and imposed by the Court, it is far from unsettled, even given the holding in Schick, whether the President may transmute a duty crafted form of punishment into one that is expressly proscribed by statute, such as a requirement that a criminal offender serve a term of supervised release without prior imprisonment.”
The judge said he perceived the President’s action “to be a greater intrusion…into the legislative arena in this case than occurred in Schick.” But, the opinion went on, “the sweeping and expansive language of the Schick majority sanctions what the President has done here.”
The judge, however, had not concluded his critique of the President’s use of the clemency powers. In a footnote, Walton bluntly warned the President that, if he were to try now to put Libby on probation instead of the more restrictive punishment of supervised release, that “would almost surely transgress into an area of authority that is the central prerogative of the judicial branch….The Court would therefore have serious questions about the propriety of the President’s exercise of his clemency power in that way.”
Moreover, the judge took direct issue with the President’s description of Libby’s 30-month prison sentence (imposed by Walton) as “excessive.” In a lengthy footnote at the beginning of his opinion, the judge defended that sentence, relying in part upon the Supreme Court’s decision June 21 in the case of Rita v. U.S., the brief the Bush Administration’s Justice Department filed in that case, the federal sentencing law, and remarks this past June 1 by Attorney General Alberto R. Gonzales arguing that the bottom of a Guidelines sentencing range should be a minimum, not merely a suggestion for judges to follow.
In another legal conclusion, the judge rejected an argument by the special prosecutor in the case, Patrick J. Fitzgerald, that the supervised release punishment was valid because it did, indeed, follow time in custody — the time Libby spent being processed by U.S. marshals. Walton said that this did not satisfy the statutory requirements for supervised release, and that Congress would not have intended that punishment to follow such a brief time “in the company of the United States Marshal’s Service.” Thus, the judge made clear that the President’s action had to rely for its validity solely on his constitutional powers as interpreted in the Schick decision.
In geographic terms alone, the United States District Court for the District of Columbia is of course remarkably well situated to influence the development of American public law.
This Court’s scrappy and practical judgment in response to the presidential commutation of Scooter Libby can take its place with the best of the Court’s important moments in constitutional history.
It’s both ironic and encouraging that the Court, right in the midst of widespread allegations of a reflexive shift on precedent and established law by the “new” United States Supreme Court, has been handed the responsibility to rule on ground floor issues implicating the extent of American presidential power.
In this decision, Libby, potential intrusion of the claimed presidential power obviously tested this Court and this judge, as it would any.
But the reportedly at times, grumpy, at times, genial, always nuts and bolts, once Republican, African American Judge, Reggie Walton assessed the test the Bush executive action posed. Finding it defensible at least in the light of precedent, the judge nevertheless went on to identify, tag and highlight the implications of the possible invasion of the jurisdiction of the legislative and judicial arms of government which he pointedly styled and emphasised as the “co-ordinate branches.” His decision isolates and expresses clearly the portent that this commutation, in this form, in the context of the Libby sentence holds. It is blunt, clear and documented.
Walton did not need to do this. But doing it showed the best traditions of this Court in that City.
U.S. v. Libby, of course, is not U.S. v. Nixon.
But in the morass of the spin, the press, the politics and high browed intrusions, the nuts and bolts, institutional courage that was the history of this case, Walton trumped with nothing more than the courage and independence of straight forward intellectual honesty. He did so in the pattern the court formed long before — then it was by another practical, another often grumpy judge – this one happening to be, Italian-American– John Sirica.
So, at least twice in these last thirty-five years, the circumstances of the location of this Court’s district combined with law and politics to results in the best traditions of the American republic.
So you need to take some heart. What happens – and what fails in — another much grander court, not far away, where precedents are seeming to be cynically ditched and authority is being dealt away by footnotes is troubling.
But what Judge Reggie Walton accomplished in his decision of July 12, 2007 in the district court for the District of Columbia should make us all remember that laws and constitutions are large and tangled webs and that there are plenty of us out there, many alternately grumpy and genial, to make sure, when all is said and done, that the rule of law is not for turning.
Comment by Tantallon — July 12, 2007 @ 10:28 pm
I have typed a comment before, but it never appeared. Hope this one does! I agree with the first comment; let us hope that an independent judiciary survives the usurpation by Bush administration and that the new Supreme Court justices get a grip on what their job is supposed to be, and not make it a political football game that denigrates our whole society.
Comment by Sandy — July 14, 2007 @ 4:06 pm
Seems to me that this Judge has let his emotions cloud his reason. In my view, he seems clearly miffed that Bush described the sentence he gave libby as ‘excessive’, and that umbrage caused him to spitefully raise the technical nit about whether the statute allows libby to serve probation if he hasn’t served time in jail.
Why do i call this a technical nit? Because two things should seem crystal clear to any judge not motivated by personal spite/animus:
1) as Justice Marshall noted about 190 years ago, the explicit grant of a greater power implies the presence of a “nested” lesser power. Thus, since a President has the explicit power to pardon, he surely has the implicit power to shorten or commute.
2) Congress’s intent that a convict serve probation only after serving jail time was surely aimed at the NORMAL proceedings of the criminal justice system, i.e., it was clearly intended to govern the behavior of the JUDICIAL branch, the branch, and was not intended to apply to the extraordinary actions of the President re his pardon power. I doubt that any of the congressmen who passed this bill ever thought about whether a President could commute the jail time but leave the probation intact, so for the judge to raise that issue was absurdly petty.
Thus, it’s clear that this miffed judge is engaging in bush-bashing. sadly, he seems to have many fans.
Comment by steve jaros — July 16, 2007 @ 9:07 am
PS – i understand that “probation” and “supervised release” are different, that the latter is designed to follow “release” from prison. But that is of no import here re the point:
“Schick” upheld the President’s power to commute a sentence of death to life w/o possibility of parole even though the “w/o possibility of parole” aspect was not a punishment outlined in the congressional statute (concerning military justice) and thus wasn’t part of congress’s intent in crafting the law.
thus, from the perspective of a lower-level judge bound to SCOTUS precedent, “libby” should be open-shut: even IF congress intended for supervised release to come after jail, “Schick” clearly empowered the president to commute libby’s sentence such as to leave that aspect of the punishment intact despite the removal of the jail component.
thus, legally his 10-page opinion was poinitless. but the judge’s point wasn’t legal – his goal was to score political points at the president’s expense.
Comment by steve jaros — July 16, 2007 @ 9:29 am