WASHINGTON — In an unusual expression of frustration, the judge who sentenced former White House aide I. Lewis "Scooter" Libby to 30 months in jail, only to see the sentence commuted by President Bush, said he was "perplexed" by the act of clemency.
In his first public comments on the matter, U.S. District Judge Reggie B. Walton took issue with Bush's statement that the prison sentence ordered for Libby last month was "excessive." Walton defended the sentence, saying that he followed established legal precedents as well as a strict interpretation of federal sentencing guidelines that has been supported by Bush's own administration.
"In light of these considerations ... it is fair to say that the court is somewhat perplexed as to how its sentence could accurately be characterized as 'excessive,' " Walton wrote.
"Although it is certainly the president's prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses, the court notes that the term of incarceration imposed in this case was determined after a careful consideration of each of the requisite statutory factors."
The judge, who was appointed to the federal bench by Bush in 2001 in part because of his tough law-and-order approach to sentencing, made the comments in a lengthy footnote to an order issued Thursday.
Bush intervened in Libby's case July 2, hours after an appeals court refused to allow Libby to remain free while he appealed his perjury and obstruction of justice conviction in the CIA leak case. Bush commuted the jail sentence but left intact a requirement that Libby serve two years' supervised release and pay a $250,000 fine -- which Libby has since paid.
Backing it up
In his order, Walton cited several legal precedents supporting his sentencing ruling, including a decision in June by the U.S. Supreme Court in a case known as Rita vs. United States. The high court ruled in that case that a sentence that did not depart from the sentencing guidelines was inherently reasonable.
The 30-month sentence for Libby, Walton observed, was at the low end of federal sentencing guidelines. The Bush administration and the Justice Department, he pointed out, have been strong proponents of those guidelines for judges, which are supposed to ensure that defendants in federal cases receive similar sentences for the same crimes.
"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,'" Walton wrote.
He also questioned whether Bush had the constitutional power to order the supervised release without sending Libby to jail. The form of probation, according to the law, is supposed to be reserved for after someone has served time.
"The president has effectively rewritten the statutory scheme on an ad hoc basis to make the punishment created by Congress applicable to a situation that Congress clearly did not intend," Walton wrote.
While the pardon powers are broad, "it is far more unsettled ... whether the president may transmute a duly crafted form of punishment into one that is expressly proscribed by statute," the judge wrote. "The court concludes, with great reservation, that it does not" offend the Constitution.
Walton ordered Libby to report to the federal probation office "with all requisite haste." He noted that if Libby failed to comply with any condition of his supervised release, he would be sent to prison.
Like other criminal defendants, Libby may not leave the judicial district without the permission of the court or probation officer. According to court papers, he "shall work regularly at a lawful occupation," "refrain from excessive use of alcohol" and "not associate with any persons engaged in criminal activity," among other requirements. He is also required to perform 400 hours of community service.
At a news conference Thursday, Bush acknowledged publicly for the first time that someone in his administration perhaps leaked the name of former CIA officer Valerie Plame to the news media -- an act that launched the criminal investigation that resulted in Libby's conviction.
"And, you know, I've often thought about what would have happened had that person come forth and said, 'I did it.' Would we have had this, you know, endless hours of investigation and a lot of money being spent on this matter?" Bush said.
"It has been a tough issue for a lot of people in the White House, and it's run its course, and now we're going to move on."