Friday, July 13, 2007

The Libby Commutation: "Now We're Going to Move On"

U.S. District Judge Reggie Walton upheld the two-year term of supervised release imposed on former Administration aide I. Lewis Libby, albeit "with great reservation," after the President commuted the thirty-month term of imprisonment (opinion below).  Under the Supreme Court's decision in Schick v. Reed, 419 U.S. 256 (1974), a sentence commutation can impose a punishment not otherwise authorized by statute so long as the punishment does not violate the Constitution.  In Schick, President Eisenhower commuted a death sentence for an Army sergeant convicted of murdering an eight-year old girl to life imprisonment without possibility of parole, even though there was no statutory authorization to refuse to allow parole.  Judge Walton expressed concern that allowing for a term of supervised release, which the statute conditions on a prior term of imprisonment, effectively encroaches on Congress's authority to enact punishments, but the court applied Schick as the closest controlling precedent and allowed the remaining punishment to stand.  Needless to say, no one will appeal this decision because both the Special Counsel and the defendant supported that interpretation of the law.

With the supervised release brushfire doused, is the controversy over the Libby commutation -- and the whole issue of the leak of Valerie Plame's role with the CIA -- finished?  According to the President, that is what should be the case.  In a press conference (here), President Bush, in response to a question about the commutation, stated:

I'm aware of the fact that perhaps somebody in the administration did disclose the name of that person, and I've often thought about what would have happened had that person come forth and said, I did it. Would we have had this, you know, endless hours of investigation and a lot of money being spent on this matter? But it's been a tough issue for a lot of people in the White House, and it's run its course and now we're going to move on. [Italics added]

While it may be done for the President, the discussion of the Grant of Executive Clemency has not died down.  In an editorial in the Detroit Free Press (here), Michigan Attorney General Mike Cox wrote:

Any time our criminal justice system ensures that the truth-telling function of our system is alive and viable, it is a cause for celebration for all citizens. Telling the truth under oath can be uncomfortable; it can be embarrassing and lead to problems for one's friends and associates, but fudging or protecting one's friends or family does not and cannot commute the necessity for truth-telling.

Simply put, our system of justice depends on truth-telling. Without that rigor, without that pressure, without that compunction to tell the truth, our system of justice will die. As a nation, we must demand that our public officials honor that pact. I have no doubts that Libby is basically a good man. At the same time, a jury of his peers has affirmed his guilt for lying under oath.

If truth is a pillar of our system of justice, then not telling the truth dramatically damages the structural support of that same system of justice. Lying under oath deserves to be punished. And President Bush was wrong to commute Lewis Libby's sentence.

(ph)

Download us_v_libby_supervised_release_opinion_july_12_2007.pdf

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/the-libby-commu.html

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