Libby pays fine; dispute over President’s power lingers
on Jul 3, 2007 at 8:49 pm
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.”
