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Accountability By Footnote

reggiewalton.gifIn case you were wondering how truly unusual it is for a President to swiftly commute the prison term of a loyal minion (via NYTimes) in an effort to continue to obstruct justice, wonder no more (via Sentencing Law blog):

On July 2, 2007, the President of the United States commuted the term of incarceration imposed on the defendant by the Court, “leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.” Grant of Executive Clemancy at 1. It has been brought to the Court’s attention that the United States Probation Office for the District of Columbia intends to contact the defendant imminantly to require him to begin his term of supervised release. Strictly construed, the statute authorizing the imposition of supervised release indicates that such release should occur only after the defendant has already served a term of imprisonment. 18 USC Sec. 3583(a) (stating that the defendant “[may] be placed on a term of supervised release after imprisonment”) (emphasis added). That is, despite the President’s direction that the defendant’s prison sentence be commuted and his term of supervised release remain intact…Sec. 3583 does not appear to contemplate a situation in which the defendant may be placed under supervised release without first completing a term of incarceration.

In other words, Reggie has taken the President and his bumfuzzled legal advisors to the statutory woodshed for their sloppy reading of the law. And this President, who has grown so used to doing as he pleases without anyone questioning his authority, has just been given a small lesson in “strict construction” by a conservative jurist who holds the rule of law to actually mean something beyond an inconvience that the President can disregard at will.

It is the footnote on page two of the opinion that really brings this home:

If either party believes that it would be helpful to solicit clarification from the White House regarding the President’s position on the proper interpretation of Sec. 3583 in light of his Grant of Executive Clemancy, they are encouraged to do so.

Shorter Judge Walton: clean up your own damned mess, George, because I’m not covering for you.

I do think that this from BOP Watch from Howard Keiffer (via TalkLeft) is a viable argument:   that Libby’s prison sentence began, arguably, the day he was booked into the federal prison system and given his inmate number and booking procedures, including being fingerprinted, because that gets credited as a day of time served in the prison system recordkeeping.  I’d say this is certainly an argument I’d be making if I were a government attorney working my holiday on a legal brief, anyway.

For more on potential collateral damage from the commutation of the Libby prison term and the presidential declaration that the sentencing guidelines as written were too harsh for Scooter but, hypocritically, not too harsh for any other person so sentenced, see this compilation of links from Sentencing Law blogJeralyn has some great analysis of this, including a good walk through of why the “excessive sentencing guidelines, but only for Scooter” argument falls so flat — do go and read this one. Here’s an excerpt:

Why? Because in his view, the sentence was too harsh. He thought the Judge calculated Libby’s guidelines at too high a level. He thought the Judge should have granted Libby a departure from the guidelines. Because he disagreed, because he is President, because Scooter Libby is in his elite circle, he threw the law out the window. He didn’t reduce the sentence to a lesser term of imprisonment. He didn’t wait for the Court of Appeals to decide if Judge Walton was right or wrong. He didn’t wait for the system to run its course. Instead, because he didn’t want Scooter Libby to spend even a single night in prison, he intervened and set Libby free.

He made this decision just weeks after he had the Attorney General send his minions to Congress to argue that every federal offense should carry a mandatory minimum sentence from which a Judge cannot depart. In other words, for every other defendant in America, Bush wants to preclude judges from exercising discretion and require them to sentence according to a mathematical formula. Libby, on the other hand, gets a free pass because the Judge didn’t exercise the discretion Bush thinks Judges in other cases ought not to have.

With that one stroke of the pen, Bush trivialized and rendered meaningless the hard work of Judge Walton, the D.C. Circuit Court of Appeals, the prosecutors and the probation officer. He told them it didn’t matter how much time they spent analyzing the facts or the law or even whether they were right or wrong. He could care less what the law held. He thought differently and that’s all that mattered.

For every other defendant, prosecutor, judge and defense lawyer around the country, his action says something more: The law doesn’t apply if the defendant has a good enough connection to the President — and only if the defendant has a connection to the President.

Finally, I think this quote from an article that Digby cites is particularly on point:

That Bush chose to make an exception for a political ally is galling to many career Justice Department prosecutors and other legal experts. Federal prosecutors said Tuesday the action would make it harder for them to persuade judges to deliver appropriate sentences.

The critics included some Republicans who said Bush’s decision did not square with an administration that had been ardently pro law-and-order. “It denigrates the significance of perjury prosecutions,” John S. Martin Jr., a former U.S. attorney and federal judge in New York, said of the commutation.

Prosecutors and federal judges nationwide are going to face a flurry of habeas petitions based on the Presidential commutation — that the sentencing guidelines are too excessive. You think the law and order types were unhappy with what the Bush Administration has done with the DOJ before, you ain’t seen nothing yet. 

The one good thing that may come from this entire mess is that we have needed to have a discussion about the sentencing guidelines for a long time — that President Bush opened the door to that discussion with blatant favoritism for a political crony as a reward for his obstruction of justice is appalling.  That Judge Walton is doing his part to make certain that the President and his legal toadies understand that they don’t get to construct the laws they want out of thin air, cobwebs, and Presidential edict is a good start.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com