Fred Fielding, Counsel to Richard M. Nixon and George W. Bush, Greenlights Probation
By Margie Burns
on 7/11/2007, 8:45am PT
Guest blogged from DC by Margie Burns
These are interesting times. A short update on the most recent legal motions in the Libby case:
As we know, in a Grant of Executive Clemency on July 2, George W. Bush commuted all prison terms for I. Lewis ‘Scooter’ Libby. The grant states that it leaves “intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.”
What with Libby not having served any time, Judge Walton, the trial judge in the Libby case, ordered input from prosecution and defense on the question of whether there could be any “release” – and consequently any “supervised release,” i.e. probation.
First response came from Fred Fielding, Esq., now Counsel to the President. Fielding was the man who helped Nixon negotiate the shoals of the Watergate investigation --- speaking of no jail time --- concluding with Nixon’s resignation followed in short order by a presidential pardon even without a conviction – and, according to Nixon and then-President Gerald Ford, without even a request for a pardon. One sees why Fielding would be welcome aboard the current White House.
Fielding’s letter, dated July 6, remarks,
Although to date neither party has accepted the court’s invitation to solicit the White House’s view as to the impact of 18 U.S.C.  3583 on the remaining aspects of the sentence, we do feel compelled to share our views as guidance to the parties since this matter involves a plenary power of the President.
The White House takes no official position on the matter of statutory construction, in part because it is believed that such evaluation is not relevant in this case.
This is because, Fielding says, citing a previous case,
the President’s July 2nd Proclamation ‘flows from the Constitution alone, not from any legislative enactments,’ and therefore cannot be ‘modified, abridged or diminished’ by any act of Congress.
Pardon is a plenary power; no question. As a power employed by the president, a figure of authority much distrusted in advance by the founders of American government, it is exceptional – just as the power of impeachment is exceptional as a defensive weapon of the legislative branch against a chief executive. Pardon, like impeachment, was intended by the founders to be a rare stopgap, for use in theoretically rare instances where the system falls down and needs reparative intervention by another branch of government. An example of good use of pardon power when the judicial system fails would be death-penalty cases where the publicly appointed defense attorney falls asleep in the middle of a capital trial, but the defendant’s appeals fail anyway.
So, Fielding goes on to conclude, since the presidential proclamation says Libby will be on probation, on probation he shall be:
The President’s July 2, 2007 commutation of the prison term released the defendant from the Bureau’s [of Prisons] custody by directing any and all prison terms to “expire” in advance of all other components of the sentence, which remain “intact and in effect.” The remaining components of the sentence require the defendant, among other things, to report to the Probation Office immediately to begin his term of supervision.
Both sides in the case apparently agree with Mr. Fielding – and Bush -- that Libby should serve probation. Special Counsel Patrick Fitzgerald, in a thorough filing for the prosecution dated July 9, states that
it is the government’s position that the supervised release term remains operative, and that, by effect of the commutation, the supervised release term began on July 2, 2007.
Defense appellate attorney Mark Stancil, in Libby’s reply also dated July 9, states,
As a constitutional matter, however, the President had the power to commute a portion of Mr. Libby’s sentence on the terms prescribed in the President’s July 2, 2007 Grant of Executive Clemency, notwithstanding any statutory provision that might otherwise conflict with the President’s action.
The defense concludes,
Mr. Libby does not take issue with the legal analysis contained in the July 6, 2007 letter from Fred F. Fielding, Counsel to the President (attached as Exhibit 1).
Both sides submitted the Fielding letter as an exhibit.
The ruling on Libby’s probation has at this writing not yet been handed down. I still wonder how it will be possible, or whether it would be possible, for Libby to violate the conditions of his probation if he does end up on supervised release.
It’s not too likely that he’ll start dealing to support himself, or engage in any of the acts typically prohibited by probation. But what about consorting with his former acquaintances, or being seen around his former hangouts? Does his conviction mean that he has to refrain for two years from obstruction of justice?