Interesting thoughts of Libby's commutation on SCOTUSblog.

UPDATE: A little-noticed footnote in the court order discussed in this post raises an interesting legal question: since the President has undoubted power to grant clemency, are his views important on the meaning of the federal statute that controls "supervised release" of convicted individuals? Judge Walton added this footnote to the bottom of his order; "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 [18 U.S.C.] 3583 in light of his Grant of Executive Clemency, they are encouraged to do so." Ordinarily, courts decide for themselves what a statute means, after hearing from counsel on both sides; in the Libby case, Libby is on one side, the United States on the other; the President is not a party. It is highly unusual for a judge to suggest that the President be contacted directly on a point of law. If the President does supply his interpretation, what legal status does that answer have? Since the Justice Department reportedly was not consulted on the commutation of Libby's sentence, would the President respond to the judge on his own, or seek some advice -- from either the Justice Departrment or the special counsel who prosecuted Libby?

The judge said in his order: "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....It is therefore unclear how [the statute] should be interpreted in unusual circumstances such as these."

Lawyers were ordered to file papers by Monday on "whether the defendant should be required to report to the Probation Office immediately, whether he should be allowed to remain free of supervision until some later, more appropriate time, or, indeed, whether the plain meaning of [the statute] precludes the application of a term of supervised release altogether now that the prison sentence has been commuted."

Howard O. Kieffer of Federal Defense Associates writes this comment:

Re: Judge questions supervision of Libby

This, IMHO, is a very simple issue. Supervised Release, by statute, follows a term of imprisonment. Probation is only applicable when the sentence does not include imprisonment. Libby, contrary to various media reports, never got (and doesn't now have) Probation.
Libby was originally summonsed into Court (not arrested), but was still booked by the Marshals - probably immediately after entering his plea of not guilty. This is when (contrary to media reports) he was assigned his "prison number."

Libby, just like virtually every other defendant, receives one day of jail credit for that booking.

Accordingly, since Bush commuted the sentence (of imprisonment) and stated that it would expire immediately, the statute is served - his Supervised Release follows the expiration of his sentence - one day (after commutation).

Consequently, this should be a no-brainer for Judge Walton - and all the sentencing pundits who have raised this issue. Technically, Libby must report to Probation within 72 hours of his "release" from incarceration - because of the commutation, that would mean by COB Thursday. His Supervised Release started today - July 3, 2007.