Judge: Libby order surrounded by doubt
on Jul 12, 2007 at 3:59 pm
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.
