Libby pays fine; dispute over President’s power lingers
FURTHER UPDATE, Thursday p.m. I. Lewis Libby has paid his $250,000 fine and $400 special assessment imposed as part of his sentence for lying to federal investigators and a grand jury, according to a docket entry in 05-394 in U.S. District Court Thursday. This leaves the question of whether he will have to serve two years on supervised release, as discussed below. In answer to the questions posed in the UPDATE below, Peter Goldberger has cited the Supreme Court’s Dec. 23, 1974, decision in Schick v. Reed, et al.. See his comment to this post.
UPDATE: A little-noticed footnote in the court order discussed in this post raises an interesting legal question: since the President has undoubted power to grant clemency, are his views important on the meaning of the federal statute that controls “supervised release” of convicted individuals? Judge Walton added this footnote to the bottom of his order; “If either party believes that it would be helpful to solicit clarification from the White House regarding the President’s position on the proper interpretation of [18 U.S.C.] 3583 in light of his Grant of Executive Clemency, they are encouraged to do so.” Ordinarily, courts decide for themselves what a statute means, after hearing from counsel on both sides; in the Libby case, Libby is on one side, the United States on the other; the President is not a party. It is highly unusual for a judge to suggest that the President be contacted directly on a point of law. If the President does supply his interpretation, what legal status does that answer have? Since the Justice Department reportedly was not consulted on the commutation of Libby’s sentence, would the President respond to the judge on his own, or seek some advice — from either the Justice Departrment or the special counsel who prosecuted Libby?
The federal judge who sentenced former vice presidential aide I. Lewis Libby for lying to federal investigators and a grand jury on Tuesday raised the possibility that Libby might not have to serve two years on “supervised release” after all. In a two-page order (found here), U.S. District Judge Reggie B. Walton told lawyers on both sides to file briefs on the issue by Monday.
When President Bush in granting clemency on Monday nullified the 30-month prison sentence Walton had imposed, the President said he would leave intact the part of the sentence that required two years of supervised release — somewhat akin to probation, but not the same. But Walton on Tuesday noted that the federal law governing such a requirement states that it is to be served “after imprisonment.”
The judge said in his order: “Strictly construed, the statute authorizing the imposition of supervised release indicates that such release should occur only after the defendant has already served a term of imprisonment….It is therefore unclear how [the statute] should be interpreted in unusual circumstances such as these.”
Lawyers were ordered to file papers by Monday on “whether the defendant should be required to report to the Probation Office immediately, whether he should be allowed to remain free of supervision until some later, more appropriate time, or, indeed, whether the plain meaning of [the statute] precludes the application of a term of supervised release altogether now that the prison sentence has been commuted.”
Re: Judge questions supervision of Libby
This, IMHO, is a very simple issue. Supervised Release, by statute, follows a term of imprisonment. Probation is only applicable when the sentence does not include imprisonment. Libby, contrary to various media reports, never got (and doesn’t now have) Probation.
Libby was originally summonsed into Court (not arrested), but was still booked by the Marshals - probably immediately after entering his plea of not guilty. This is when (contrary to media reports) he was assigned his “prison number.”
Libby, just like virtually every other defendant, receives one day of jail credit for that booking. Accordingly, since Bush commuted the sentence (of imprisonment) and stated that it would expire immediately, the statute is served - his Supervised Release follows the expiration of his sentence - one day (after commutation).
Consequently, this should be a no-brainer for Judge Walton - and all the sentencing pundits who have raised this issue. Technically, Libby must report to Probation within 72 hours of his “release” from incarceration - because of the commutation, that would mean by COB Thursday. His Supervised Release started today - July 3, 2007.
Howard O. Kieffer
Federal Defense Associates
714-836-6031 x 250
Facsimile 714-543-5890
www.boplaw.com
hkieffer@dcounsel.com
Comment by Howard O. Kieffer — July 4, 2007 @ 11:33 am
I have posted a detailed comment on the legalities of this issue here on TalkLeft, supplementing other useful comments from Howard Kieffer, moderator of the federal prison-related listserv BOP-Watch.
Comment by Peter G — July 4, 2007 @ 3:10 pm
“1) The President’s commutation power is plenary — unlimited. Even if the statute does not allow the judge to impose supervised release without a term of imprisonment, the President, in the exercise of his commutation power, can cancel the term of imprisonment and impose “supervised release” without prior imprisonment.”
I agree with Peter G.
Comment by Daniel Thomas — July 5, 2007 @ 12:32 am
Daniel’s quotation is from my comment posted at TalkLeft. The authority for that proposition, which answers Judge Walton’s question, is Schick v. Reed, 419 U.S. 256 (1974). Schick established that the constitutional pardon power includes a power of commutation which in turns encompasses the authority — which cannot be overturned in court by reference to any statutory argument — not only to shorten a sentence but also to change a sentence from one form to another (there, from a death sentence to life imprisonment) and even to put a condition on that new form of sentence (there, lack of parole eligibility) which was not authorized by any law applicable to a judge making a sentencing decision in that sort of case (there, a military prosecution for murder).
Comment by Peter G — July 5, 2007 @ 11:48 am