Libby and a Pardon

An appellate court has unanimously declined to allow I. Lewis "Scooter" Libby to remain free pending his appeal and he must report to jail at the place and time directed by the US Bureau of Prisons. For the current story take a look at the Washington Post coverage from this afternoon.

The question of a Presidential Pardon comes to us again. There is a regulation which states a pardon may not be requested until five years after any prison time has been served.

The President has unbridled pardon authority under Constitution (Article II Section 2) "... he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment," so it would be completely legal for the President waive the five year waiting period and grant a pardon outright.

Remember, Gerald Ford didn't wait until five years after Richard Nixon served any prison sentence. Ford pardoned Nixon in advance for any crimes he might have committed connected to Watergate.

Short of a pardon, according to the DoJ webpage Commutation Instructions:

The President's clemency power includes the authority to commute, or reduce, a sentence imposed upon conviction of a federal offense, including the authority to remit, or reduce, the amount of a fine or restitution order that has not already been paid. This form of clemency is different from a pardon after completion of sentence.

BUT - the regs surrounding a commutation include this:

Requests for commutation of a prison sentence generally are not accepted unless and until a person has begun serving that sentence. In addition, commutation requests are generally not accepted from a person who is currently challenging his or her conviction or sentence through appeal or other court proceeding.

So, it may well be that Scooter Libby will have to report to prison and/or agree to drop any appeals before the President will commute his sentence to time served, but, as we've said, the President can waive the rules.