Bush's Commuting Prison His Terms May Mean Not Even Probation for Libby
Will the Libby Defense Fund Pay the $250,000 Fine for Millionaire Libby?
By Margie Burns on 7/4/2007, 6:22am PT  

Guest blogged by Margie Burns.

President Bush's "Statement by the President on Executive Clemency for Lewis Libby" says that

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby.

Bush goes on to mention specifically the only remaining elements of legal punishment, probation and a fine of $250,000.

Now it looks as though even these two residual sanctions on Libby may turn out to be nonexistent.

On July 3 (yesterday), Judge Reggie B. Walton, the trial judge, issued a new order in the Libby case. Noting that probation appears to be defined by law as "supervised release after imprisonment" and that the president had commuted all of Libby's imprisonment, the judge said 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.

The judge continues,

It is therefore unclear how [] 3583 should be interpreted in unusual situations such as these, and the Court seeks the parties' positions as to 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 [] 3583 precludes the application of a term of supervised release altogether now that the prison sentence has been commuted.

Walton has ordered both sides in the case to submit their arguments on this question by Monday July 9.

While the defense position may be predictable, it will be interesting to see how either side argues a case with no precedent. Bush's Grant of Executive Clemency itself specifically orders that commutation will be

leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.

So we'll see which outweighs the other --- the apparently plain language of the statute or the presidential dictum on this single occasion.

If Libby actually does have to go on probation, which looks like a sizable "If" at this point, I wonder whether further false statements would violate the conditions of his release. --- Oh, wait --- that's right: what release?

Somewhat related point, here: some of the better-informed commentary suggests that Libby may not, even now, be totally off the hook as a potential witness. Evidently, according to lawyers who have been interviewed regarding the commutation, Libby could still be "immunized" by either the prosecution or Congress. Maybe a miracle will happen, and he may yet help to inform the electorate.

Meanwhile, there's that matter of the $250,000 fine, which seems to have been ignored so far in the media outlets. Admittedly, the fine would not be a major issue for Libby anyway and is therefore more weasel words in the presidential statement. His defense fund has already raised some $5 million. But even so, is there any guarantee that Libby will actually have to pay it himself?