Judge questions Libby's probation after Bush clemency

The Bush clemency of Libby's sentence just took a turn into the Twilight Zone here. I found this story through DKos user Pontificator. Pontificator reports that U.S. District Judge Reggie Walton is asking for legal clarification regarding President Bush's clemency of Scooter Libby's sentence, since Bush issued the clemency before Libby even served a single day in jail. And now because of this action by the president, it may be that Scooter Libby would not have to serve probation, since under federal law, probation can only follow a prison sentence. Pontificator includes the link to Judge Walton's court order here. Walton writes:

On July 2, 2007, the President of the United States commuted the term of incarceration imposed upon the defendant by the Court, "leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence." Grant of Executive Clemency at 1. It has been brought to the Court's attention that the United States Probation Office for the District Court of the District of Columbia intends to contact the defendant imminently to require him to begin his term of supervised release. Strictly construed, the statute authorizing the imposition of the supervised release indicates that such release should occur only after the defendant has already served a term of imprisonment....That is, despite the President's direction that the defendant's prison sentence be commuted and his term of supervised release remain intact....

President Bush issued a clemency on Libby's sentence before Libby even served a single day in jail. The U.S. Probation Office requires that a "supervised release" can only occur after a defendant has served a term of imprisonment. And yet, the Bush administration's clemency statement clearly states that President Bush is granting clemency on Libby's prison sentence, and not clemency on Libby's fine or probation:

Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison.

What a contradiction here!

CNN has also picked up on this story:

WASHINGTON (CNN) -- President Bush spared former White House aide I. Lewis "Scooter" Libby from prison, and his clemency order may wipe out Libby's 2-year probation as well, the trial judge told lawyers Tuesday.

Strictly interpreted, the statute authorizing probation indicates that supervised release "should occur only after the defendant has already served a term of imprisonment," U.S. District Judge Reggie Walton wrote.

Walton ordered lawyers to weigh in with their arguments on the matter by Monday.

Walton had sentenced Libby to 30 months in prison for perjury, obstruction of justice and lying to investigators probing the 2003 exposure of the name of CIA operative Valerie Plame.

Libby was prosecuted for actions during the investigation of the leak, not for the leak itself.

Bush commuted Libby's sentence Monday, calling the term too harsh.

I'm not sure if President Bush expected this little legal contradiction to occur, or if President Bush and Vice President Dick Cheney were both so worried about Scooter Libby singing to federal prosecutors on the Bush scandals, that they wanted to keep Libby completely out of jail, rather than have Libby serve a couple of days first before granting clemency. According to The New York Times, President Bush supposedly "spent weeks thinking about the case against Mr. Libby and consulting closely with senior officials, including Joshua B. Bolten, the White House chief of staff; Fred F. Fielding, the White House counsel; and Dan Bartlett, Mr. Bush’s departing counselor." And yet, Bush did not consult the Justice Department, or perhaps even Attorney General Alberto Gonzales on the issue of Libby's clemency:

Pardons are typically reviewed by the Justice Department and sent to the president for a final determination. But a former administration official said that in this case the White House had sent a message of “we’re not going through the usual pardon scrub, we’re going through this one ourselves.”

President Bush never consulted with the Justice Department lawyers on this clemency, which the Justice Department lawyers could have quickly seen through this contradiction. Instead, the Bush White House wanted to do this one themselves, creating another legal confrontation, and a political scandal.