Reggie's Going to Smile

by emptywheel

If the hapless Democratic Congress ever gets around to an investigation through which they can ask Reggie to turn over the CIA Leak case grand jury materials.

But for now, I'd say he's still cranky, wouldn't you?

In commuting the defendant’s thirty-month term of incarceration, the President stated that the sentence imposed by this Court was “excessive” and that two years of supervised release and a $250,000 alone are a “harsh punishment” for an individual convicted on multiple counts of perjury, obstruction of justice, and making false statements to federal investigators. Although it is certainly the President’s prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses (or even to decline to provide a reason for his actions altogether), the Court notes that the term of incarceration imposed in this case was determined after a careful consideration of each of the requite statutory factors, and was consistent with the bottom end of the applicable sentencing range as properly calculated under the United Stats Sentencing Guidelines.

Indeed, only recently the President’s Attorney General called for the passage of legislation to “restore the binding nature of the sentencing guidelines so that the bottom of the recommended sentencing range would be a minimum for judges, not merely a suggestion,” a stance that is fully consonant with the policies of this Administration as a whole. In light of these considerations, and given the indisputable importance of “provid[ing] certainty and fairness in sentencing . . . [and] avoid[ing] unwarranted sentencing disparities,” it is fair to say that the Court is somewhat perplexed as to how its sentence could be accurately be characterized as “excessive.”[my emphasis]

In the meantime, I'm not holding my breath on the hapless Congress.

Update: And then later, when Reggie contemplates whether the President's wacky ideas about sentencing "offend the Constitution," he says:

The Court concludes, with great reservation, that it does not.

Not a happy camper. In fact, Reggie (probably unconstitutionally) decides to answer a question many have been asking:

Should the defendant fail to comply with any condition of his supervised release, ... the term of supervision may be revoked and the defendant may be required to "serve in prison..."

Comments

[freepatriot]

nothing says hypocrisy like george bush's repuglican party

lots of former repuglicans are no longer repuglicans cuz of shit like this

including a local former mayor

george bush is giving repuglicans a bad name

anybody wanna bet that Judge Walton regrets his own political registration about now ???

God's own party looks more like Satan's own party lately

so when do the honorable people like Judge Walton stand up and denounce this party of criminal fuckers ???

btw, john mccain's presidential campaign is about to "Crash And Burn" in the most spectacular political death I've ever witnessed. mccain should "auger in" in 10, 9, 8, ...

[William Ockham]

Libby should be glad that I'm not in Walton's position. If I were, I'd come up with the most ridiculous conditions possible and pounce on any excuse to haul Libby off to jail.

I'm still not a lawyer, but I think Walton is correct is asserting that a violation of supervised release should result in Libby going to jail. If I'm reading that penultimate footnote correctly, he's saying that by agreeing to supervised release, Libby is agreeing to go to jail if he violates it.

[mighty mouse]

William O.--and might Libby object, saying he wanted/agreed to a free skate,if he doesn't like those restrictions? could he demand a full pardon after all, if there's some restriction he does not cotton to and won't comply with? or is that even a plausible scenario? maybe he'll be as good as gold...but I can see him objecting to certain kinds of community service (or is the fix in with the probation folks?)?

[prostratedragon]

Sounds as if Hizzoner has had an "Oh, what the hell" moment, the next one of which —they don't usually return you to your starting point when they're discharged— should get him about up to Ockham. I do so wish some other folk would have at least their first such moment in the very near future.

[DrDick]

I loves me some Reggie. This boy knows snark and does. not. suffer. fools. period.

[Slothrop]

So...wait a second...Libby can be hauled into jail at a moment's notice if it's determined that he's violating the rules of his "supervised release."

Is that what you're telling me?

Who or what determines whether it's being violated?

[Sally]

This is going to be one heck of a supervised release! May the Court's budget allow for 24/7 tag-alongs with Scoots. More than one way to skin a cat, folks.

[TomJ]

If supervised release is anything like probation, just remember Paris Hilton. Anyway, if there was no recourse for breaking the rules, why would there be rules to follow? But in this case, it is more administrative, probably like the out-on-bail question, short hearing, limited, if any appeal. Judges essentially own your balls once convicted.

[orionATL]

the importance of judge walton's comment cannot be overstated.

it just might herald a rebellion from the customary deference of the federal judiciary.

a judge as cautious, fair, and circumspect as walton was in the libby trial

rarely says something this direct and harsh in ANY case,

let alone one involving the president of the united states.

bush and cheney better hope their silbermans and scalias can save them,

because it looks to me like the rest of federal judiciary might be starting to get royally pissed.

if so,

nothing, but nothing, could be worse for the welfare of the bush gang.

[Jodi]

The two conditions that I have heard of us that Mr Libby

1. Get a job.
2. Make a monthly report on his activities.

Seems pretty much a cinch to comply.

[bmaz]

EW - Why haven't either or both the HJC and SJC made Judge Walton smile and so requisitioned all the GJ materials? This type of mindless lapse is precisely why I have been so negative about the whole committee hearing structure as the vehicle to truth and accountability on the range of issues in need of it. There is no coherence in the effort, it is piecemeal, slow and plays right into the hands of the Administration desire to run out the clock. This is simply bullshit and it is a dereliction of duty by the Democratic leaders to not uphold the Constitution by doing exactly what the Constitution contemplates and demands be done, ie initiate impeachment proceedings. If they are so timid and fearful that they cannot bring themselves to do so against Bush and Cheney yet; fine, start with Gonzales. The continued damage being done to this country and the rule of law is, at this point, as much, if not more, the fault of the Democrats in Congress for willfully refusing to do their jobs. It is simply inexcusable.

Secondly, Judge Walton is absolutely seething, eh? His outrage and disgust is literally palpable. I would like to see, and I believe Judge Walton has all but formally invited them to, the government (prosecution) request the modification of the terms and conditions of supervised release to include some onerous terms. I would also like to see the Government (prosecution) put the interjection of this pardon (commutation) into play in terms of Libby's appeal. There is at least a cognizable argument that, in light of Libby's stipulation to the sentence imposed by the Court (less the confinement of course), Libby has waived any arguments on appeal that relate to the sentence of the Court. Furthermore, Libby's stipulation to and acceptance of the Court's sentence, coupled with the historic precedence that acceptance of a pardon grant is, in the eyes of the law, effectively an admission to the crime and prosecution, could be argued to be a waiver of his appellate rights to challenge the prosecution. I have never been a big fan of the established admission of guilt by acceptance of a pardon reading of Burdick v. US, and Biddle v. Perovich may be contrary (although it looks distinguishable from Libby's circumstances); but I would certainly take a stab at this argument with the Circuit Appellate Panel, who, you never know, might have a bit of Judge Walton in them too.