1115.org

I pointed out on Friday how Judge Reggie Walton had identified a problem with Bush’s commutation of Libby’s sentence, namely that federal law provides for probation “only after the defendant has already served a term of imprisonment”. Since Libby’s sentence had been commuted before he served any time, Judge Walton found no legal basis for placing Libby on probation.

Well, there was an interesting development yesterday, though it really doesn’t seem to have received much attention. The White House sent an unsolicited letter to prosecutor Patrick Fitzgerald clarifying what Bush really meant when he said: commute the prison sentence but keep the probation:

“The President’s July 2, 2007 commutation of the prison term released the defendant from the Bureau [of Prisons]’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,’” Fielding writes in the unsolicited letter. “The remaining components of the sentence require the defendand, among other things, to report to the Probation Office immediately to begin his term of supervision.”

By the powers vested in him, Bush has decreed that what he meant all along was that commuting the sentence means the sentence is deemed to expire in advance, which of course eliminates the obstacles to placing Libby on probation. He is now being placed on probation after the sentence has expired, exactly as the law provides.

Now here’s the really interesting bit. White House counsel Fred Fielding’s letter also says that under President Bush’s commutation order, Libby has 72 hours from the time he is released from the Bureau of Prisons’ custody to report to his probation officer. (The letter is currently unavailable on the TPM server. Looks like they are in the middle of some housekeeping with their document collection. Hence, I can’t access the letter right now to extract a direct quote. Will do so later. But it’s pretty baldly stated, in almost exactly those words.)

This letter is the binding legal interpretation of Bush’s commutation order. And the letter clearly says that under the order, Libby was released from the Bureau of Prisons’ custody on July 2, 2007.

Oh oh! No getting around it. Libby has already violated his probation.

So now, will he go to jail for violating probation, or will St. George step in once again, this time to pardon the violation?

*** Update, 6:40 pm ***

Here’s what Fielding’s letter said:

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 the release from the custody of the Bureau of Prisons” to serve two years under Probation Office supervision.