All sides agree: Libby must remain supervised

Relying upon different legal authorities but reaching the same conclusion, the special prosecutor in the CIA leak case and the White House’s top staff lawyer agreed on Monday that former vice presidential aide I. Lewis Libby must serve a term of supervised release following his conviction for lying to federal investigators and a grand jury. Special Counsel Patrick J. Fitzgerald, the prosecutor, and White House Counsel Fred F. Fielding told a federal judge that President Bush’s nullification of prison time for Libby did not affect the former aide’s obligation to serve the part of his sentence that involves supervision by federal correction officials. In a brief filing, Libby’s personal attorneys said he accepted the White House view.

Fitzgerald’s filing in U.S. District Court can be found here, and Fielding’s letter – written to Fitzgerald to Libby’s lawyers and submitted by them to the Court — can be found here. Libby’s filing can be found here.

If U.S. District Judge Reggie B. Walton, the sentencing judge in the case, agrees with that view, Libby would have to report immediately to the federal Probation Office. The supervised release specified in the sentence was two years.

One significant aspect of the White House letter is that it says the issue is to be resolved entirely on the basis of the President’s official wishes and his clemency powers under the Constitution, and not a federal law that otherwise would govern supervised release situations. With that as the legal foundation of the argument, the White House thus retains the option, should the President decide later to exercise it, to give Libby a full pardon and wipe out any time that then remained on the supervised release condition. Thus, this new filing is not a firm conclusion that Libby would have to serve all of that part of his sentence. He already has paid the monetary part of his punishment — a $250,000 fine and a $400 special allotment.

Fitzgerald did not dispute the constitutional argument that the White House asserted; in fact, he included it as one alternative way to resolve the situation with Libby. But the prosecutor had two other alternative arguments that he put forth first.

Initially, Fitzgerald contended that the President’s commutation order did not seek to alter any part of Libby’s sentence except the 30-month prison term, so supervised release — a valid part of the sentence — was not disturbed. As a second argument, responding directly to Judge Walton’s expressed skepticism that the supervised release would remain in effect if Libby never served a day in prison (the law speaks of supervised release being served “after imprisonment,” Fitzgerald suggested that Libby did serve a single day in confinement — the day he was processed by the U.S. Marshal’s Service. That constituted official detention, and thus supervised release could come after that.

Fitzgerald’s ultimate conclusion was that Libby’s term of supervised release began on July 2, the day President Bush commuted the prison sentence but left the release condition intact.

In his third alternative, Fitzgerald took much the same position as the White House did in the Fielding letter. The President’s “plenary power to commute,” the prosecutor contended, “authorizes the President to impose a condition to commutation that is not explicitly authorized by statute.” For that proposition, the prosecutor relied upon a 1974 Supreme Court ruling in Schick v. Reed.

The White House letter by Fielding also cited the Schick decision. “As the President’s July 2nd Proclamation ‘flows from the Constitution alone, not from any legislative enactments, it cannot be modified, abridged or diminished’ by any act of Congress,” Fielding wrote, quoting from Schick.

Libby’s counsel said he accepted that view “as a constitutional matter” and thus did not take issue with Fielding’s legal analysis. If the issue were to be resolved on statutory grounds, however, his lawyers suggested that supervised release would appear to be forbidden because it would not follow a term in prison.