A letter written by Fred Fielding, WH counsel, to Patrick Fitzgerald and cc'd to Judge Walton has been entered on the case docket in USA v. Libby. Lysias also helpfully pointed out in a comment below that the text of the letter can be viewed on TPM Muckraker.
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UPDATED:PATRICK FITZGERALD has now filed his Response to Judge Walton's request with the Court. Fitz' conclusion: "...it is the government's position that the defendant is subject to the two-year term of supervised release, the supervised release term began on July 2, 2007, and the defendant must report to the Probation Office immediately." Some quotes from Fitz's brief are in this comment.
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UPDATED AGAIN: Libby's response to Judge Walton has been filed. Read it in this diary comment.
The contents of the letter are as follows:
The court's July 3, 2007 Order in the referenced case suggests some lack of clarity as to whether the United States' Probation Office for the District of Columbia ("Probation Office") should be permitted to have the defendant report for his two-year term of supervision under the court's July 22, 2007 Order of Judgment and the President's July 2, 2007 Grant of Executive Clemency ("Proclamation").
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. Section 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 evaluationis not relevant in this case. As the Supreme Court has long held, "the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute." Schick v. Reed, 419 U.S. 256, 264
Thus, while it does not appear that Section 3583 speaks to, let alone precludes, the defendant's term of Probation Office supervision under the present circumstances - the statute addresses only the court's options when it issues or "impose[s]" a sentence - even if there were no specific commutation power to keep intact and in effect the "two-year term of supervised release, with all its conditions" would unmistakably govern. The pardoning power is an enumerated power of the Constitution and ...its limitations, if any, must be found in the Constitution itself." Schick,419 U.S. at 267. As the President's July 2nd Proclamation "flows from the Constitution alone, not from any legislative enactments...it cannot be modified, abridged or diminished" by any act of Congress. Schick, 419 U.S. at 267.
As a factual matter, the court imposed its sentence of imprisonment, supervised release, and other fines and conditions on June 14, 2007 and then "committed [the defendant] to the custody of the United States Bureau of Prisons to be imprisoned" on July 22, 2007. According to the terms of the July 22nd Order of Judgment, the defendant "must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons" to serve two years under Probation Office supervision. The President's July 2, 2007 commutation of the prison term released the defendant from the Bureau's 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."
Also, a Notice of Appearance has been filed in the USA v. Libby case by Gregory L. Poe, Partner at Robbins Russell Englert Orseck & Untereiner, LLP on K Street in D.C., on behalf of Scooter. Mr. Poe's experience in criminal appeals includes filing an Amicus Brief on behalf of Families Against Mandatory Minimums in the Rita v. USA case.
By Judge Walton's Order, briefs in the case are due today.