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July 3, 2007

Legal complications following Bush's commutation

I have been wondering about President Bush's statement that Libby would still serve "two years of probation" given that he was actually technically sentenced to two years of "supervised release."  This is important in part because "supervised release" is only a legal possibility under federal law after a term of imprisonment.

Fortunately, Judge Walton is all over these intricate legal issues.  Today he issued a two-page order explaining his concerns about how one can have a "term of supervised release after imprisonment" per 18 USC 3583 now that the President has erased the imposed term of imprisonment.  The order, which can be downloaded below, calls for briefing on this issue from the parties by July 9.

Download libby_3583.pdf

UPDATELyle Denniston discusses this issue here at SCOTUSblog.

July 3, 2007 at 05:50 PM | Permalink


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» "Far from a Slap on the Wrist" - Libby's Sentence from White Collar Crime Prof Blog
Far from a slap on the wrist, is what Tony Snow, white house spokesperson, said when talking about the fact that President Bush decided to commute Libby's sentence so that he will not have to serve any jail time. After [Read More]

Tracked on Jul 4, 2007 12:03:58 AM

» Will Libby Escape Probation Too? Maybe Not from Discourse.net
Meanwhile, Judge Walton asks if Libby is even eligible for probation when his sentence was commuted before he served it (the statute assumes that supervised release follows incarceration). Hes asked for briefs by Monday (Judge Waltons ord... [Read More]

Tracked on Jul 4, 2007 5:57:02 PM


This is what happens when the President doesn't consult the DoJ Pardon Attorney. Or, say, some other lawyer familiar with sentencing.

Oy vey.

Posted by: NCProsecutor | Jul 3, 2007 10:17:30 PM

Or, say, any lawyer?

Posted by: Leah | Jul 3, 2007 10:48:07 PM

Doug, what about Judge Walton for your sentencing hall of fame? This is a pretty impressive (and quick) observation about the statute. And, all in all, I think his handling of the Libby sentencing has been admirable.

Posted by: | Jul 3, 2007 11:06:03 PM

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.

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Posted by: Howard O. Kieffer | Jul 3, 2007 11:35:17 PM

Howard is correct.

If appeal is filed, could DOJ confess error and move to be remanded back to the district court for a new trial - thus new sentence?

Posted by: Deuce | Jul 4, 2007 12:16:47 AM

How do you get to count "time served" against a sentence that's been commuted to nil time? In the meantime, Libby's showing up for intake is just that - showing up for intake.

It doesn't become "time served" until it's assessed against the balance of the sentence which, at this point, is zero time.

At any rate, Mr. Kieffer's understanding of "imprisonment" doesn't appear to have been contemplated by either the framers of the statute, the sentencing judge, or, most importantly, the Commuter in Chief.

Posted by: illusory tenant | Jul 4, 2007 1:18:13 PM

LYING SCUMBAGS, all of them (the administration)
They have destroyed the fabric of this once great nation, Dick and Bush, fornicators to the max...

Posted by: keepyourheaddown | Jul 4, 2007 3:49:51 PM

Illusory: Read the Proclamation. Bush did not commute the sentence to "nil time." He commuted any further period of imprisonment. Anything in addition to the day that Libby has credit for, that is, as Howard correctly explained. And the Proclamation expressly leaves the 2-year term of supervised release "with all of its conditions" in place. On Monday, Judge Walton can invoke 18 USC 3583(e)(3) and set a hearing to modify those conditions, in light of changed circumstances, to add (for example) a condition of home confinement or even of intermittent imprisonment for up to a year. See my detailed comment, with citations, at TalkLeft.

Posted by: Peter G | Jul 4, 2007 9:23:14 PM

Sorry Howard, booking is not imprisonment. He was not granted time served credit for his 15 minute booking in the sentencing order

Posted by: Alois.Brunner | Jul 4, 2007 11:14:49 PM

Thanks, Peter G.

Read the Proclamation. ... [Bush] commuted any further period of imprisonment. Anything in addition to the day that Libby has credit for, that is, as Howard correctly explained.

But it doesn't say "further," it says the imprisonment component of the sentence is commuted. It's gone, erased in its entirety. It also doesn't say “commuted to time served.” If it did say “further,” then at least that would be an indication that the President contemplated Libby's intake as constituting imprisonment.

I understand Mr. Kieffer's argument as a practical matter but it makes no sense logically – or legally, I would argue.

Libby's booking can't be counted as time served against a period of imprisonment that doesn't exist anymore. For the purposes of the statute(s), intake isn't imprisonment per se; it only becomes “imprisonment” in the event there is an actual term of imprisonment against which it might be credited and even then only as a matter of discretion.

The logical consequence of your and Mr. Kieffer's characterization is that Libby has served negative one day of imprisonment, and I highly doubt that Judge Walton will hold that intake is now “imprisonment” for the purposes of the federal sentencing statutes.

He clearly doesn't consider it imprisonment at this point, given the nature and language of his July 3 order. In any event it will be interesting to see what arguments are contained in the motions that order is requesting.

Posted by: illusory tenant | Jul 5, 2007 10:44:58 AM

I am a retired paralegal who wrote hundreds of brief to the Sixth Circuit Court of Appeals. I wonder how Judge Walton can change the sentence at this point. The notice of appeal has been filed, and Rule 35(a), Federal Rules of Criminal Procedure, provides that any change in the sentence must be made within 7 days after the sentencing. I think the D.C. Circuit would have to remand the case in order for Judge Walton to rule on the supervised release question. I think the question of supervised release could be obviated if the case were remanded and the court sentenced Libby to two years probation on one or more of the counts.

Posted by: joe phelan | Jul 5, 2007 4:01:51 PM

To Alois Brunner and Illusory Tenant - any attempt by the sentencing judge to credit Mr. Libby for his "booking day" would be a nullity. Credit decisions are made by the Bureau of Prisons, not the sentencing court. Any attempt to award credit in the sentencing order is treated as "surplusage." IF the booking period constitutes "official detention" under 18 USC 3585, it MUST be credited - there is no "discretion."

Posted by: anonymous | Jul 5, 2007 8:02:58 PM

Judges don't figure "time served" in their sentencing unless it is raised in objections. Here it wasn't addressed, thus that leaves it to BOP to establish how much credit is awarded.

Howard is right.

Posted by: Deuce | Jul 5, 2007 10:14:50 PM

Article II, Section II of the Constitution reads as follows:
Section 2. The President shall have . . . power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Is there precedent or case law that if the House of Representatives impeaches a government official, but the Senate does not convict, then the President cannot grant a pardon to that official?

If that is the case, then this would be a very good reason to impeach Cheney and Gonzales, although there are not enough votes in the Senate, for the two thirds majority, to convict. If they were to be impeached, then the President could not pardon them. I am correct in this interpretation of the Constitution?

Posted by: Karen D. Lane, Esquire | Jul 6, 2007 9:33:36 AM

Thanks for

IF the booking period constitutes "official detention" under 18 USC 3585, it MUST be credited - there is no "discretion."


[T]hus that leaves it to BOP to establish how much credit is awarded.

Understood, but Scooter's commutation absolves him from delivery to the BOP, does it not? Therefore the BOP won't even be in a position to make a determination on whether Scooter's moment of intake constitutes "official detention" or not.

It seems to me there exists a distinct possibility Scooter may end up escaping not only prison sentence but his period of supervised release as well.

"Strict construction" demands nothing less (or more, in this case).

Posted by: illusory tenant | Jul 6, 2007 10:31:39 AM

A friendly wager then, that this will at least be one of the arguments advanced by the gov't in its brief on Monday.

Posted by: anonymous | Jul 6, 2007 7:55:57 PM

I'm sure you're right about that. I'd rather bet that Scooter weasels out of his supervised release - but I'd need some odds on that one!

Posted by: illusory tenant | Jul 9, 2007 9:26:46 AM

You can send the check, made out in the amount of "friendly wager" to . . . :-)

Posted by: anonymous | Jul 10, 2007 11:14:25 PM

lol. Hey, he came pretty damn close.

Posted by: illusory tenant | Jul 13, 2007 10:56:31 AM

Read the truth about "Attorney" Howard Kieffer who filed Circuit court cases as far back as 1992 and had a 1995 case in the US Supreme Court.

Posted by: Fed Court | Jun 22, 2008 3:00:45 PM

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