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July 9, 2007

Interesting Libby developments on two fronts

This new AP story update a lot of interesting on-going Libby stories.  Here are highlights:

House Judiciary Chairman John Conyers exhorted President Bush Monday to allow top aides to explain to Congress why Bush commuted I. Lewis "Scooter" Libby's prison sentence. In a letter to Bush on Monday, Conyers said the commutation was troubling and could eliminate Libby's incentive to provide information about the administration's role in leaking the identity of former CIA officer Valerie Plame Wilson....

In another development, White House counsel Fred Fielding told U.S. District Judge Reggie B. Walton that the confusion over Libby's commuted sentence is unnecessary. ... Walton said in court documents that the law "does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration." In a letter to the judge, Fielding said that Libby should simply report to probation officers as if he was recently released from prison.

Under supervised release, Libby would have to submit written reports to probation officers each month and secure full-time employment. He would be prohibited from traveling without permission.

Thanks to How Appealing, you can read the Fielding letter, which is actually addressed to Special Counsel Fitzgerald, at this link.  I will post the Conyers letter when I find it on-line.

UPDATE: Thanks to a helpful fellow blogger, I leanred the Conyers letter is available at this link.

ANOTHER UPDATE:  As Peter noted in the comments, this post at SCOTUSblog has all the filings on the supervised release issue flagged by Judge Walton.  Apparently everyone is saying that Libby is still subject to supervision for two years. 

July 9, 2007 at 02:53 PM | Permalink


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He needs employment? How many of you are guessing his next boss will be the good honest folks at Haliburton?

Posted by: BabbuLu | Jul 9, 2007 4:40:50 PM

So Libby now lacks incentive to talk about the administration that just kept him from prison? What a surprise.

Posted by: defense attorney | Jul 9, 2007 4:57:41 PM

Conyers is a moonbat:


Posted by: federalist | Jul 9, 2007 5:06:38 PM

SCOTUSBlog has posted links to copies of the White House filing with Judge Walton, Special Prosecutor Fitzgerald's filing, and the defendant's filing as well. All agree that the President has the constitutional power to commute part or all of a sentence to another form of sentence, including under circumstances and on terms that would not be lawful or statutorily authorized if imposed by a sentencing judge, so long as those other terms and conditions are not themselves unconstitutional.

Posted by: Peter G | Jul 9, 2007 5:42:42 PM

The arguments summarized on Scotusblog make no sense. How can the president impose an illegal sentence? The proper way to commute the sentence as supposedly intended would have been to convert it to two years of federal probation. Supervised release and probation are similar (though not identical) as far as conditions of release go, but are quite different if revocation ever becomes an issue. (SR has guidelines regarding possible punishments, including confinement, whereas a probation violation entails a full re-sentencing.)

Posted by: Bob Jenkins | Jul 9, 2007 8:25:22 PM


I agree with you that it would have been cleaner if Bush had converted the sentence to two years' probation and the fine. That would have avoided any issue about supervised release. Having said that, the president can indeed impose a sentence that would not have been lawful for a court to impose. That is black letter constitutional law. There is a long history, for example, of conditional grants of clemency that impose conditions that a court would not have been authorized to impose, provided only that the condition is not "constitutionally objectionable." Schick v. Reed, 419 U.S. 256, 266 (1974). The court has not attempted to spell out the precise contours of what that standard might entail, other than to opine that it would preclude discrimination on the basis of race, sex, political preference and the like, as well as transparently irrational decisional procedures, such a flipping a coin. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289-92 (1998). Perhaps the most famous conditional grant of clemency occurred in 1971, when President Nixon commuted the sentence of former Teamster’s boss Jimmy Hoffa, on the condition that he “not engage in direct or indirect management of any labor organization” until his original sentence would have expired. Hoffa’s subsequent challenge to the constitutionality of the condition was rejected. See Hoffa v. Saxby, 378 F. Supp. 221 (D.D.C. 1974).

Posted by: Sam | Jul 9, 2007 11:01:31 PM

Harold Krent's 2001 law review article on this topic is a must read: "Conditioning the President's Conditional Pardon Power." 89 California Law Review (No. 6) 1665-1720.

Posted by: PSRuckman | Jul 10, 2007 1:21:25 AM

I'm a a long-time reader, first-time poster, and a criminal defense attorney.

What happens to Libby if he violates his otherwise-illegal term of supervised release? Can he be sent to prison?

Posted by: Dave | Jul 11, 2007 9:48:04 AM

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