Friday, March 21, 2008

Presidential Commutation & Disbarment

With the recent disbarment of I. "Scooter" Libby, there have been questions regarding the effect of the president commuting his sentence on his later disciplinary matter.  The bottom line is - probably none. This issue was examined in the context of Eliot Abrams, the former Assistant Secretary of State for Inter-American Affairs. In the case In re Abrams, 689 A.2d 6 (1997), the court held that a presidential pardon does not negate the ability of a disciplinary committee from imposing professional discipline. The Abrams case resulted after President Bush gave Abrams a "full and unconditional pardon" on Christmas Eve in 1992. Although there are four judges that offer a dissent in the Abrams case, the precedent remains for saying that a presidential commutation of sentence does not change the disciplinary board's decision. 

(esp)(w/ a hat tip to Professor Greg Miller)

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A commutation, such as Libby received, is not a pardon; it merely reduces the extent of the sentence. In that light, I can't see how it would possibly affect exposure to professional discipline. A full and unconditional pardon, on the other hand, removes all disabilities due to the conviction; it essentially negates the conviction. So the conclusion that the official licensing agency (especially in DC, a federal enclave) could nevertheless disbar the pardoned felon seems very questionable to me. Perhaps the issue would be whether the disbarment is triggered by the conviction per se, or by the conduct underlying the conviction. The pardon, unless predicated on a showing of innocence, which is not the case here, negates the effect of the conviction; it doesn't deny the commission of the misconduct.

Posted by: Peter G | Mar 22, 2008 11:26:36 AM

It is impossible for Libby to get a Presidential pardon by Bush. However, Libby's disbarment will remain because he is a felon. This is separate from Libby's commutation sentence. I agree with Peter C. Commutation is not a pardon. Libby is still a felon. Bush is left in a pickle in Libby's case and the buzz to whether Bush will pardon Libby. Bush would have to change:

a) American Bar Association Model Rules of Professional Conduct where it says that a lawyer is disbarred with a felony record.

b) Justice Dept. rules on Presidential pardon.

"There is a minimum waiting period of five years after completion of sentence before anyone convicted of a federal offense becomes eligible to apply for a presidential pardon."

Bush will be out of office by the time Libby finishes his sentence.

Posted by: SP Biloxi | Mar 22, 2008 5:25:20 PM


I'm afraid you are mistaken. The Justice Department's clemency rules are for its internal guidance, but are not binding on the President. Bush thus retains the constitutional authority to pardon Libby whenever he wants to, if he so desires. On the other hand, even if Libby is pardoned, it would not affect the DC Bar's authority to disbar him. A pardon removes legal disabilities imposed by reason of the pardoned offense. However, there is a substanial body of case law that a pardon does not prevent a regulatory authority from imposing character and fitness requirements for holding a professional license, based on the underlying conduct, not the conviction itself. Moreover, on the modern view, a pardon is not the same thing as an expungement; a pardon recipient remains a convicted felon, ableit a felon who has been pardoned for his offense.

Posted by: anon | Mar 23, 2008 8:38:00 AM

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