My idea of a great July 4th holiday -- looking for ways Judge Walton can still screw with Bush & Libby (Yes, I enjoyed it. So what?). Jeralyn at TalkLeft has an article full of legal talk. For the whole thing, see http://www.talkleft.com/...
I'll try to summarize. Basically, Bush has unlimited powers to commute the sentence and apparently, to do away with Libby's prison time but keep the "supervised release" (like parole) in place for two years, despite what the statute says.
But the judge, apparently, has powers of his own under the "supervised release" statute which include:
-Ordering Libby into custody for nights, weekends or any period of time that's less than one year.
-Keeping him from associating with certain people, say Dick Cheney, Karl Rove?
-Home confinement, with or without monitoring.
After reading the whole article and thinking of what the judge's order said yesterday, I get the feeling Judge Walton is toying with Bush, trying to get him to come back and say, "Yes, I really meant it. The prison sentence is too harsh. He doesn't have to go to jail for 30 months, but I said supervised release stands, so it stands." (I can see a pissed off Bush, hating being questioned or challenged saying that.)
Maybe Judge Walton really wants Bush to say just that, especially if Bush fires off his reply as quickly and with as little thought as the original commutation. Or maybe Walton is just trying to stick it to Bush, because Walton already knows the power he has over Libby, despite the president's commutation of Libby's sentence.
Because according to the guy quoted at TalkLeft (expert in appellate law) the judge has certain powers under supervised release, which include the powers to "enlarge the conditions," of that release, including conditions specifically permitted by statute that are noted above, like Scooter spending weekends in jail. And the statute also adds "any other condition [the judge] considers to be appropriate." (Wow. There's some wiggle room I bet Scooter won't like.)
So it sounds like Walton isn't done with Scooter or with Bush. Like Walton's starting a high-powered chess game, to see if he can get Libby in a position to talk, despite Bush's trying to shove this whole mess under the rug.
Is this the deft hand of Patrick Fitzgerald, still doing all he can to get to the truth? Or Judge Walton being pissed off at his verdict being set aside and the way Bush plays fast and loose with the law?
God, I hope so.
In case anyone else brings up Bush's power to pardon... yes, he can. But from everything I've read, if Bush pardons Libby, Libby no longer has the right to refuse to answer questions in front of Congress, like, Was Dick Cheney the one who ordered you to out Valerie Plame? And Bush can't afford to do that, because it most certainly was Cheney, maybe even with Bush's approval. So there will be no pardon.
Can Bush "re-commute" Libby's sentence to say not only was the prison sentence too harsh, but 2 years supervised release is too harsh, too, and Libby has to only pay the fine?
I don't know. Probably, based on the other guy quoted by TalkLeft who says Bush's powers to commute are unlimited.
And maybe that's all Judge Walton sees happening here. If he can do nothing else, he can force the issue back to the front pages, give Fitz a chance to file a brief and have a court hearing and force Bush to "re-commute" Libby's sentence for some other bullshit reason and take away the supervised release, too.
That could be fun for me, as well. Not as satisfying as Scooter spending his weekends in jail. But still... some fun. It keeps the issue alive and in the news, where we thought it was dead and done with just yesterday. And as long as someone keeps the issue alive, it's no telling what might happen.
We can hope, right?
EDITED Landrew pointed out in the comments, What do Libby's lawyers say? They can't argue for a Pardon. Libby certainly doesn't want that, because he could be compelled to squeal on Cheney then. But if Libby's lawyers argue for supervised probation, Fitz agrees, and Judge Walton will have Libby in jail, and I'm sure Libby's been promised if he just takes the fall, he'll never serve a day in jail.
So... do Libby's attorneys argue for supervised release and tell Bush he has to "re-commute" the sentence and take away the supervised release? I don't see any other option than that. And they'll look so stupid in court making that argument. "Yes, Judge. Our client deserves supervised release. He doesn't deserve a pardon."
Right now, Judge Walton is probably researching what other federal judges have done to people on supervised release, to make sure he's not doing anything above the law or outside of it, unlike Bush.