Judge questions Libby's probation after Bush clemency

WASHINGTON (CNN) -- President Bush spared former White House aide I. Lewis "Scooter" Libby from prison, and his clemency order may wipe out Libby's 2-year probation as well, the trial judge told lawyers Tuesday.

Strictly interpreted, the statute authorizing probation indicates that supervised release "should occur only after the defendant has already served a term of imprisonment," U.S. District Judge Reggie Walton wrote.

Walton ordered lawyers to weigh in with their arguments on the matter by Monday.

Walton had sentenced Libby to 30 months in prison for perjury, obstruction of justice and lying to investigators probing the 2003 exposure of the name of CIA operative Valerie Plame.

Libby was prosecuted for actions during the investigation of the leak, not for the leak itself.

Bush commuted Libby's sentence Monday, calling the term too harsh. Watch President Bush explain his decision »

Earlier Monday, a federal appeals court had unanimously ruled that Libby could not delay serving his sentence, which would have put him just weeks away from reporting to prison.

The president let the convictions stand, along with a $250,000 fine and probationary period Walton had included in the sentence.

Bush on Tuesday defended his decision and said he wouldn't rule out a pardon for Libby, Vice President Dick Cheney's former chief of staff.

"I made a judgment, a considered judgment, and I believe it's the right decision to make in this case. I stand by it," Bush said.

"As to the future, I rule nothing in and nothing out," he said as he left a visit to Walter Reed Medical Center.

White House spokesman Tony Snow also discussed the possibility of a pardon in the daily White House briefing.

"There is always a possibility or there's an avenue open for anybody to petition for consideration of a pardon," Snow said. "As far as we know, that's not been done, and we don't know if it's contemplated by Scooter Libby or his defense team."

Snow said the conviction, fine and probation were "hardly a slap on the wrist."

"Scooter Libby has been convicted of a felony. ... The felony conviction has an impact on his life. He's not going to be able to practice law," Snow said.

Commutation provokes outrage

Bush's commutation provoked outrage from Democrats and former U.S. Ambassador Joseph Wilson, husband of the former CIA operative.

Wilson suggested the president made himself "an accessory to obstruction of justice."

"I think this administration has demonstrated time and time again it is corrupt from the top to the bottom. I think the president short-circuited the rule of law and the system of justice that has undergirded this country in the entire history of the republic," Wilson told CNN's "American Morning."

Special Prosecutor Patrick Fitzgerald "has said from the very beginning that the reason he was not able to get to an underlying crime was because Mr. Libby repeatedly lied," Wilson said.

Wilson and his wife have filed a civil suit in the case. "We want to get the truth out and hold these officials to account for their abuse of power."

In a statement issued Monday night, Fitzgerald took issue with Bush's description of the sentence as "excessive," saying it was "imposed pursuant to the laws governing sentencings which occur every day throughout this country."

House Judiciary Committee chairman Rep. John Conyers, D-Michigan, announced Tuesday that his committee would hold a hearing July 11 on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials." No witnesses have been announced.

"It is imperative that Congress look into presidential authority to grant clemency, and how such power may be abused," Conyers said. "Taken to its extreme, the use of such authority could completely circumvent the law enforcement process and prevent credible efforts to investigate wrongdoing in the executive branch."

Commutations cannot be challenged

A commutation is distinct from a pardon, which is a complete eradication of a conviction record and makes it as if the person has never been convicted.

Commutations are rarely granted, said CNN's chief legal analyst, Jeffrey Toobin. A commutation is one of the constitutional powers of the president and it cannot be challenged by any attorney or court, he said.

Bush did not wait for Libby or his lawyers -- who are still appealing his convictions -- to request clemency, Snow said.

A government official said that Bush did not consult with the Justice Department before rendering his decision. The Justice Department normally reviews petitions for clemency and generally advises against them when a case is still on appeal or until a convict has begun serving time.

"This is not something, again, where you have to go back and consult members of the Justice Department about what the facts of the case are or the circumstances surrounding it," Snow said.

Asked what input Cheney had into the commutation, Snow said, "I'm sure that the vice president may have expressed an opinion."

Snow said Tuesday that Bush "spent weeks and weeks consulting with senior members of this White House" before deciding on the commutation.

Plame had worked in the CIA's counter-proliferation division before the March 2003 invasion. She told a congressional committee in March that her exposure effectively ended her career and endangered "entire networks" of agents overseas.

Plame's name became public when Robert Novak named her in his column on July 14, 2003.

Former Deputy Secretary of State Richard Armitage has admitted he disclosed the information to a reporter. Novak pointed to another "senior administration official" -- Bush political adviser Karl Rove -- as the second source for his column.

Libby is the highest-ranking White House official ordered to prison since the Iran-Contra affair.

"This decision ... sends a signal that if you have friends in high places then you can get out of serving jail time," said Tom Fitton of Judicial Watch, a conservative nonpartisan foundation in Washington.

Polls suggest the American public may not be happy with Libby's commutation.

A CNN/Opinion Research Corp. poll taken in March asked if Bush should pardon Libby -- 69 percent said no, 18 percent said yes.

"I think the White House probably made the calculation that the only people left standing by this president are conservatives and they want him to keep Libby out of jail. Therefore, not much left to lose," CNN senior political analyst Bill Schneider said. E-mail to a friend

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