Libby v. Nixon?
July 4, 2007 1:26 AM   Subscribe

Is there a parallel between the Special Prosecutor problem in US v. Nixon and the commutation of a sentence imposed pursuant to a Special Prosecutor investigation, as in the case of "Scooter" Libby? [more inside]

I've been asking this question around to anyone I thought could answer it -- to no avail -- so I decided I might as well bring it here, as well. I'm honestly curious what I'm missing here -- either the question is critical to the Libby issue, or I'm nuts, and if I'm nuts, I'd like to know why. I'd like to make it clear up front that I'm not trying to bait anyone here -- I'm going to be defending this position, and I need to test if its tenable.

The question is: How does commuting Libby's sentence square with U.S. v. Nixon? According to the GAO, Fitzgerald's appointment by Comey reads:
"By the authority vested in the Attorney General by law, including 28 U.S.C. 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary. It also states, 'Further, my conferral on you of the title of Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.'"
That seems to me to directly track Nixon, which reads, in relevant part:
"So long as this regulation is extant it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board [418 U.S. 683, 696] of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. ...

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so. So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it."
That was the rationale for why Nixon couldn't escape the Special Prosecutor's investigation -- I don't see why the same rationale doesn't apply here, particularly given that Knute and a few other cases explicitly limit the pardon power when it interferes with vested rights, which Fitzgerald has under Nixon and Marbury at the very least.

But this can't be right. I haven't seen this discussed elsewhere in the Libbystorm. What am I missing here? I'd like to go talk with some of my profs about this later in the week, so for the sake of my preparation, any pontifications y'all have are most welcome.
posted by spiderwire to Law & Government (17 answers total) 1 user marked this as a favorite
 
This is good question.

A good way to approach it is to look at the two disputes. Let's first identify who is on the side of each:

In the Nixon case, Nixon was asserting executive privilege against the special prosecutor's subpoena. Fundamentally, Nixon and the special prosecutor had a beef of some sort with each other.

In the Libby case, Bush is asserting his Constitutional pardon power, and well, Libby is agreeing. Fitzgerald may have some negative personal feelings about this, but a prosecutor's duties end at sentencing. So it's not really clear who has a beef with who. Bush favors the exercise of the pardon power, as does Libby, and nobody else is really involved.

Fitzgerald's responsibility was to investigate and prosecute the case, and he did. The judge's job was to oversee the trial and hand down a sentence, and he did. The jury's job was to decide guilt, and they did.

So this is the first obvious difference. In Nixon, two people were asserting conflicting legal rights--there was a dispute. In Libby, it's just not clear who has the legal right to dispute Bush's exercise of the pardon power.

The second major difference is that the Constitution vests the pardon power with the executive's as an exercise of its sole discretion, but executive privilege is not absolute and must yield to more important, countervailing government interests.

In other words, in Nixon, the courts had a standard to apply. They could weigh the interests involved and come to a decision. In Libby, though, it's not even clear how the courts would review an exercise of executive discretion. What's the appropriate standard to apply, and why?

The third major difference is that judicial review of Libby case presents much greater separation of powers issues. There is only one actor here, Bush, and he's exercising discretion granted to him by the constitution. Since the three branches of government are coequal, the courts have no right to review his exercise of the pardon power, any more than he has the right to direct a verdict in a court.

Nixon was different, because by vesting the special prosecutor with power and then turning it against the executive branch, the matter could no longer be characterized as solely within the executive. There was an extra-executive dispute that was appropriate for adjudication.

The bottom line is that Nixon presented a "justiciable" question while Libby probably doesn't, since 1) no party has standing to challenge the action, 2) there is no standard of review, 3) it presents solely a political question.
posted by Mr. President Dr. Steve Elvis America at 2:03 AM on July 4, 2007


I don't think anything about the sentence has anything to do with the special prosecutor. In the Nixon case, the president (whoever that might be at the time of sentencing) also would/did have the power to pardon or commute sentences.
posted by winston at 3:32 AM on July 4, 2007


The prosecutor's power has nothing to do with the commutation of the sentence. In fact commutation doesn't limit the prosecutor's power in any fashion.

The prosecutor's power is to prosecute cases, not impose sentences. Only the court (judicial branch) has the power to impose a sentence, and the President's power to commute that sentence remains intact, regardless of the basis for the prosecutor's power.

(BTW, I'm a criminal defense atty.)
posted by mikeand1 at 7:51 AM on July 4, 2007


These are fair points, but I'm still not 100% convinced, so, with all due respect, I'd like to press them a bit. IAALS, so if you'd bear with me, I'd appreciate it.

AFAIK, the justiciability decision in Nixon doesn't turn on delegation. The AG doesn't have the power to assert executive privilege, either. Nixon reads:
So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it.
That strikes me as responsive to the point that "Since the three branches of government are coequal, the courts have no right to review his exercise of the pardon power, any more than he has the right to direct a verdict in a court." Moreover, I'm not sure what the distinction is between directing a verdict in a court and substituting a completely different sentence, which is canonically within the pardon power.

Nixon also reads:
This setting assures there is "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S., at 204 . Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id., at 198.
It seems to me quite clear that commuting a sentence in the middle of an appeals process constitutes interference "in the regular course of a federal criminal prosecution."

As to the Prosecutor specifically, which I think is the main question here: it seems to me that Marbury and the Appointments Clause vest a right in the Prosecutor, and Marbury notwithstanding, the pardon-power cases (e.g., Knute) specifically limit the President's ability to interfere with vested rights via pardoning. Why doesn't Fitzgerald have standing under Nixon to preserve the sentence?
The prosecutor's power is to prosecute cases, not impose sentences. Only the court (judicial branch) has the power to impose a sentence, and the President's power to commute that sentence remains intact, regardless of the basis for the prosecutor's power.
Could you explain this a little further? Fitzgerald clearly argued at Libby's sentencing hearing pursuant to his Special Prosecutor power. That strikes me as squarely within Nixon's delineation of an issue "arising in the regular course of a federal prosecution."

With regards to some specific questions:
In other words, in Nixon, the courts had a standard to apply. They could weigh the interests involved and come to a decision. In Libby, though, it's not even clear how the courts would review an exercise of executive discretion. What's the appropriate standard to apply, and why?
Off the top of my head: Hoffa v. Saxbe sets out a test of the appropriateness of the pardon power in substituting an alternate sentence as one of "public interest" hinging on "reasonableness." Rita holds that sentences within the Guidelines are presumptively reasonable. Finally, the judge/jury distinction in this case isn't tenable. Apprendi holds that the jury's decision merely determines where in the Sentencing Guidelines the verdict should fall, and the judge's decision merely determines where it should fall within the Guidelines. By choosing a sentence outside of the Guidelines, Bush runs afoul of Apprendi.
The third major difference is that judicial review of Libby case presents much greater separation of powers issues. There is only one actor here, Bush, and he's exercising discretion granted to him by the constitution. Since the three branches of government are coequal, the courts have no right to review his exercise of the pardon power, any more than he has the right to direct a verdict in a court.

Nixon was different, because by vesting the special prosecutor with power and then turning it against the executive branch, the matter could no longer be characterized as solely within the executive. There was an extra-executive dispute that was appropriate for adjudication.
I mentioned this above -- that this question is addressed in Nixon -- but it may be worth mentioning that Fitzgerald was vested with the same Special Prosecutor powers as Cox, and Comey's original appointment guaranteed Fitzgerald freedom from interference in his investigation. E.g., that's why Fitzgerald was able to offer Ari Fleischer immunity.
posted by spiderwire at 7:28 PM on July 4, 2007


You are mixing up different concepts. For example:

"AFAIK, the justiciability decision in Nixon doesn't turn on delegation."

Justiciability is solely a question of whether the court has jurisdiction to adjudicate a case under Article III . It has nothing to do with the power of the Executive Branch to commute a sentence.

"The AG doesn't have the power to assert executive privilege, either."

No, that lies with the President. And executive privilege is an evidentiary privilege, having nothing to do with the power to commute a sentence. Nor did US v. Nixon deal with the power to commute. It dealt with subpoena power under the Rules of Criminal Procedure, which is something entirely different.

You are looking at isolated sentences in an opinion and taking them far, far out of context. That's not how one builds a legal argument. Any legal argument derived from case law depends completely on the laws and facts on which the case relies. This isn't like using Photoshop where one can cut and paste; it requires some consideration of the factual and legal context.

The same goes for your other points.

BTW, not only am I a criminal defense atty, I am a very LIBERAL criminal defense attorney, so it's not like I'm biased against your arguments.
posted by mikeand1 at 11:11 PM on July 4, 2007


mikeand1:
BTW, not only am I a criminal defense atty, I am a very LIBERAL criminal defense attorney, so it's not like I'm biased against your arguments.
Absolutely. I'm not trying to impugn your responses, and I recognize the differences between the cases -- I'm not that poor a law student -- I'm just trying to probe the issue. I very much appreciate you discussing this with me, and hope you'll excuse my mistakes/ignorance. :) However, based on your response, I not sure that I made my argument clear to you. Hopefully you can bear with me for one more moment:
Justiciability is solely a question of whether the court has jurisdiction to adjudicate a case under Article III . It has nothing to do with the power of the Executive Branch to commute a sentence.
Understood -- I was responding to Mr. President Dr. Steve's argument that "Nixon presented a 'justiciable' question while Libby probably doesn't." Regardless, as a threshold question, it seems clear to me that the Libby issue is justiciable. I take it you don't disagree that the Court has jurisdiction here.
No, that lies with the President. And executive privilege is an evidentiary privilege, having nothing to do with the power to commute a sentence. Nor did US v. Nixon deal with the power to commute. It dealt with subpoena power under the Rules of Criminal Procedure, which is something entirely different.
I also understand that. The argument I'm making is that Nixon controverted the executive privilege right on the grounds that the President had delegated plenary power to the Special Prosecutor via the Attorney General, and held that the President didn't have the authority to revoke that right without first revoking the delegation of authority to the Prosecutor to investigate.
You are looking at isolated sentences in an opinion and taking them far, far out of context. That's not how one builds a legal argument. Any legal argument derived from case law depends completely on the laws and facts on which the case relies. This isn't like using Photoshop where one can cut and paste; it requires some consideration of the factual and legal context.
Okay, now that's a little condescending. I apologize for responding to you in the middle of a comment where I was largely responding to someone else, but I was hardly citing to Nixon in a vacuum.

I actually cited two pardon-power cases, and I think that there's a potential argument contained in both.

(1) Knote and Nixon, read together, seem to justify the very intuitive argument that the President shouldn't have to the power to controvert a Special Prosecutor's investigation by simply pardoning anybody found guilty. If that were the case, then Nixon could simply have pardoned and immunized everyone involved in Watergate, retrospectively and prospectively, with impunity. At the very least, it strikes me that the Nixon court wasn't willing to accept that result.

Put simply, this is a straight-up-no-chaser Marbury argument, which the Court cites in Nixon for the proposition that once the President has vested the power to investigate in the Special Prosecutor, he's not at liberty to revoke it on a whim, nor to revoke it de facto by refusing to produce evidence. It seems to me that if sentencing is a pursuant to "the regular course of a federal prosecution," then the same logic applies. (Apprendi is simply the best/only authority I know for the proposition that sentencing is part-and-parcel with conviction on this score, though I recognize that the issue there is more specific to due process.)

Knote is interesting because it's one of the few cases that places a limit on the President's pardon authority: specifically, it holds that the pardon power is insufficient to "undo" a right vested in a third party. Footnote 8 of Nixon specifically identifies the Prosecutor as "vested" with the right to investigate per his appointment, but I don't think you even have to get that specific: Marbury seems more than sufficient to justify the proposition that the President isn't at liberty to take from the Special Prosecutor a vested right of a legitimate appointment -- so if sentencing the subjects of an investigation is an incident of that appointment, I can't see how you can draw a distinction between the prosecutor's need to procure evidence and his need to secure penalties.

However, if you're correct that sentencing isn't part of the prosecutor's responsibility, I could be wrong -- it simply strikes me as a highly counterintuitive result. (And if that's the case, then why does the Prosecutor argue at the sentencing hearing?) This problem is why I pointed to the justiciability discussion in Nixon -- it emphasizes the need of the prosecutor to be able to carry out the task to which he's appointed, and essentially makes the argument that the Executive can't frustrate the Special Prosecutor's investigation simply because it dislike the results, and it's not specific to the executive-privilege issue.

My argument is that there's potentially an exception to the President's otherwise plenary pardon power in the event that he's already delegated part of his Executive power to the Special Prosecutor -- the guarantee of non-interference should bind the Executive from asserting the pardon power against a sentence the prosecutor secures for the same reason that he's prevented from exercising the right of executive privilege against the prosecutor's subpoena.

(2) That said, there's a potential nuance in that Nixon emphasizes the need to preserve the right to executive privilege to the fullest extent possible, and in that same vein, the President could argue that a partial commutation isn't a complete frustration of the Special Prosecutor's mandate. Mr. President rightly asks what the standard of review should be in this case, which is why I cited Hoffa v. Saxbe.

Hoffa is one of the other rare cases purporting to limit the pardon power, and it does so by subjecting it to a two-part test, essentially asking whether the substituted sentence could be reasonably interpreted, under a deferential review, to be "reasonable and neither illegal nor against public policy." (Incidentally, Hoffa, like Knote, also emphasizes that the pardon power doesn't extend to vested rights, for this reason.) It seems to me that all the discussion of Rita over the past few days, and its holding that sentences within the Federal Guidelines are presumptively reasonable, answers the question here.

Granted, I don't think that in the general case Rita limits the President's pardon power, as that would frustrate the purpose of the pardon, which is to allow for individual mercy when the justice system has proved inadequate. However, it also seems clear to me that where the special case of an Executive-authorized investigation is concerned, that's clearly the proper standard of review for the breadth of potential substitutes for the original sentence.

Again, I apologize if I wasn't sufficiently clear, but with all due respect to your superior knowledge and experience, I'm still not sure that you've answered this question. If I'm wrong, then I'm sorry for badgering you about it.
posted by spiderwire at 1:26 AM on July 5, 2007


Oh, I see, you were responding to another poster, didn't see that, sorry.

The bottom line is that sentencing is in the power of the court, not the prosecutor. The fact that the prosecutor gets to present argument at the sentencing hearing doesn't change that. Arguing for a sentence is not the same as imposing it The court can completely reject the government's arguments on sentencing.

Thus the pardon power does not controvert the prosecutor's investigation or prosecution because it does not run counter to any power the prosecutor has.
posted by mikeand1 at 8:41 AM on July 5, 2007


mikeand1 has got the crux of it. By the way, spiderwire, I think it's awesome that you've gone at this the way you have. Still, there's a couple of problems with your basic premise. First, the issue in Nixon dealt with the delegation of limited powers to the Special Prosecutor. They're plenary with respect to the AG powers, but they are not plenary presidential powers. The AG's office has a role in advising on pardons, but none in the granting of them. The straight up answer is that Nixon is inapposite to the issue at hand - the pardon power not being delegated, the President has not "denied his authority to exercise it."

I'm not trying to condescend, but I do think you've removed some important context from the other cases, and that they don't really stand for the propositions your argument relies on.

As to the Prosecutor specifically, which I think is the main question here: it seems to me that Marbury and the Appointments Clause vest a right in the Prosecutor, and Marbury notwithstanding, the pardon-power cases (e.g., Knote) specifically limit the President's ability to interfere with vested rights via pardoning. Why doesn't Fitzgerald have standing under Nixon to preserve the sentence?

The pardon power cases don't "specifically limit" the President's ability to interfere with vested rights in general. In fact, Hoffa says the opposite - in some cases, the President may place conditions on a commutation that interfere with important Constitutional rights. "On the other hand, every condition which to some degree impinges on those rights and liberties is not thereby unenforceable. Constitutional rights, including those First and Fifth Amendment rights raised by plaintiff, may be restricted provided that the restrictions are precisely drawn to accomplish a legitimate governmental purpose."

There are some explicit limits on Presidential clemency discussed in the Hoffa opinion, but they are not of the sort you contemplate. It cites Biddle for the proposition that the "'substituted punishment' must be 'authorized by law' and inflict less punishment than what the judgment fixed." So, the President can't commute a sentence from death to some form of cruel and unusual punishment. The interests envisioned are Bill of Rights stuff.

The Knote analysis doesn't contemplate that sort of interest either. It says, "Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon."

Nor does the Hoffa court (and let's be real, a district court case from '74 is not exactly mandatory authority) place any sort of "explicit limit" on the pardon authority broadly, it just provides a framework for evaluating a condition of clemency. Take, for example, this statement: "The President, who exercises that power as the elected representative of all the People, must always exercise it in the public interest. And the power is most importantly limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the 'individual' certain fundamental rights." The "public interest" part of it is completely vague, and what authority it relies on is dicta. Those dicta describe a consideration in evaluating conditions, not an independent requirement.

Even if they did, the certainly don't extend such a requirement to the pardon or commutation itself. In fact, the Hoffa explicitly avoids such a broad approach to review. "We hold that the President may exercise his discretion under the Reprieves and Pardons Clause for whatever reason he deems appropriate and it is not for the courts to inquire into the rationale of his decision. See Ex parte Grossman, 267 U.S. 87, 69 L. Ed. 527, 45 S. Ct. 332 (1925)."

There are just no limitations on the pardon authority that reach the "special case" you're talking about here.

Couple of other points:
"If that were the case, then Nixon could simply have pardoned and immunized everyone involved in Watergate, retrospectively and prospectively, with impunity. At the very least, it strikes me that the Nixon court wasn't willing to accept that result."


Nixon could have pardoned everybody who was convicted of something related to Watergate with legal impunity (social/political impunity is a different story). I very much doubt that the Court would have done anything about it.

As the Court in Grossman said, "If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."

Notwithstanding the fact that MPDSEA's argument that the Court can't review pardons (they obviously have, in the cases mentioned), he's right on with the justiciability issue. The kind of interests at issue in the other pardon cases are not those of the prosecutor, and with the problems of standing, and the possibility of it being a political question, I just can't see it getting in the door.

Also, as long as we're talking shop, we shouldn't conflate justiciability with jurisdiction.

Cool question, tho'.
posted by averyoldworld at 12:01 PM on July 5, 2007


Thanks for the thoughtful responses, all. I'm tempted to nitpick about a few more points, but I don't want to belabor the point. That Grossman quote in particular pretty much shuts the book for me, I think -- good find, averyoldworld.

I do have a question about Hoffa: it's a district court case, but it's a D.C. district court case -- wouldn't that make it binding authority on the Libby trial? I have to confess that the D.C. circuit confuses me a bit. Or actually, a lot.

Also, as long as I'm here: I had considered the argument that Hoffa doesn't "place any sort of "explicit limit" on the pardon authority broadly, it just provides a framework for evaluating a condition of clemency," and I'm not convinced on that point, either. The "conditions" language is deceptive -- but if you read, e.g., Schick v. Reed, it cites Wells in saying: "[T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made."

In other words, I'm fairly certain that the basis of commutation in Schick is the President's ability to grant a pardon "conditional" on the convict's acceptance of a "lesser punishment." This is how the court gets around the fact that commutations aren't "pardons or reprieves" in the strict sense. That also strikes me as consistent with the somewhat vague but oft-repeated point that the pardon power can't be used to do anything blatantly unconstitutional.

Regardless, that's all immaterial to the basic question of whether the pardon interferes with a vested right of a Special Prosecutor, which I think has to be conceded. Thanks again.
posted by spiderwire at 2:35 PM on July 5, 2007


"I do have a question about Hoffa: it's a district court case, but it's a D.C. district court case -- wouldn't that make it binding authority on the Libby trial?"

No, not really. Only Supreme Court opinions and Circuit Court opinions from the circuit in which the district lies are binding authority. District court judges disagree with each other all the time, just as circuit courts can disagree with other circuit courts. However, at the Circuit Court level, a court cannot ignore or overturn an opinion from the same circuit unless it's en banc.
posted by mikeand1 at 6:30 PM on July 5, 2007


OK, I was just confused by the fact that it's a District Court in the District. :)

I saw that Hoffa was originally tried in a Tennessee District Court, so I assumed that the case was removed to the D.C. court as a federal question, but on closer reading I guess it's a second suit brought against A.G. Saxbe (who isn't otherwise mentioned in the case) regarding the pardon. Makes sense now. I figured it was just some procedural quirk of the D.C. courts.
posted by spiderwire at 8:16 PM on July 5, 2007


I see where your confusion comes from.

The United States is divided into 92 districts, each of which has its own district court. The District of Columbia is one of those districts. Every federal district court has the power to hear cases involving federal questions, no matter where it's located.

Those 92 districts live in 11 Circuits, defined geographically. For example, the districts in California, Nevada, and other Western states are in the Ninth Circuit. The district court for the District of Columbia lives in the DC Circuit.

Parties who lose in a district court have an appeal as of right to the circuit court for the circuit in which the district lives. If they lose in the circuit court, they can petition to the Supreme Court, which has the discretion whether to take the appeal, and which takes cases from the entire U.S.

Not trying to be condescending, but if you are in law school, you should know this stuff already. It's kind of like knowing the thigh bone is connected to the hip bone once you're in med school.
posted by mikeand1 at 8:29 PM on July 5, 2007


Not trying to be condescending, but if you are in law school, you should know this stuff already.

Yeah, I understand basic civil procedure. :) I was confused because I'd assumed that the case was appealed (or removed/transferred via some quirk I'd never heard of) from Tennessee into the District's Circuit Court, not the District Court in the District -- obviously, if it was the same case brought in Tennessee, it'd be heard on appeal, not de novo. The proliferation of "Districts" and the fact that it's a separate suit are what threw me for a loop.
posted by spiderwire at 10:36 PM on July 5, 2007


And correct me if I'm wrong, but in the District all suits are brought before the federal court, yes? My understanding has always been that the D.C. Circuit occupies a special place in the judicial system (e.g. in this very instance, bringing a suit there against the A.G. regarding a Tennessee federal case), so I figured that there was just some doctrine I wasn't aware of. Seems not. Apparently the problem is my reading comprehension, not my knowledge of federal civil procedure :)
posted by spiderwire at 10:41 PM on July 5, 2007


Glad we could help, spiderwire. I know the value of unsolicited advice is suspect, but reading a level deeper than you think you need to almost never you, and in my experience, it's pretty much a necessity if you find yourself thinking, "Why does nobody else see this?"

In other words, I'm fairly certain that the basis of commutation in Schick is the President's ability to grant a pardon "conditional" on the convict's acceptance of a "lesser punishment." This is how the court gets around the fact that commutations aren't "pardons or reprieves" in the strict sense.

Again, I think you're reading too much into dicta at the cost of the actual holding. First, Schick takes four snippets of Wells. You pasted in the third, but the first two make it clear that the Court was convinced in 1856 that commutations fit the strict sense of pardons and reprieves:
"The real language of [Art. II, 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. . . ."

"In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms."

That's just the Court in Wells, though. If we look at Schick, I don't see anything that indicates that the Court relies on a convict's acceptance. It seems pretty solidly convinced that the Framer's intended to the pardon power to include commutation. "The plain purpose of the broad power conferred by 2, cl. 1, was to allow plenary authority in the President to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable."

That paragraph continues on to the holding: "We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself."

Even Marshall's dissent doesn't turn on a prisoner's consent, although he does argue that, for penal conditions, "the Constitution mandates that the lesser punishment imposed be sanctioned by the legislature." In short, the Court's acceptance of commutation being inherent in the President's pardon authority is long-standing, and only limited in that the conditions be constitutional. The wrangling is just around what that makes for an unconstitutional condition. Again, Hoffa provides a framework for evaluating that, but I wouldn't jump up and down on it.

And correct me if I'm wrong, but in the District all suits are brought before the federal court, yes? My understanding has always been that the D.C. Circuit occupies a special place in the judicial system (e.g. in this very instance, bringing a suit there against the A.G. regarding a Tennessee federal case), so I figured that there was just some doctrine I wasn't aware of.

You're wrong. The trial court of general jurisdiction is the DC Superior Court, and above that is the DC Court of Appeals. When you're admitted to practice, they swear you in before a Judge of the DC Court of Appeals. It's a bit confusing, because it's a Congressionally-created local court (with a different building and everything), and the prosecution is handled by the US Attorney's office, which can make things interesting. I had an adjunct professor who was an AUSA, and he noted at one point that under DC law, felony possession of marijuana required "your weight in pot," while the federal standards were far far tougher. Prosecutorial discretion counts for quite a lot, as you might imagine.

The US Court of Appeals for the DC Circuit does hold a special place, insofar as they review a lot of agency lawmaking. But the reason that Hoffa filed in DC district court probably had more to do with forum shopping than with any particular role that circuit plays.
posted by averyoldworld at 10:35 AM on July 9, 2007


Er, "but reading a level deeper than you think you need to almost never hurts you..."
posted by averyoldworld at 1:18 PM on July 9, 2007


You're wrong. The trial court of general jurisdiction is the DC Superior Court, and above that is the DC Court of Appeals. When you're admitted to practice, they swear you in before a Judge of the DC Court of Appeals. It's a bit confusing, because it's a Congressionally-created local court (with a different building and everything), and the prosecution is handled by the US Attorney's office, which can make things interesting. I had an adjunct professor who was an AUSA, and he noted at one point that under DC law, felony possession of marijuana required "your weight in pot," while the federal standards were far far tougher. Prosecutorial discretion counts for quite a lot, as you might imagine.

Ah, so my initial reaction that the DC courts were weird and incomprehensible to me was correct! And still is.

The US Court of Appeals for the DC Circuit does hold a special place, insofar as they review a lot of agency lawmaking. But the reason that Hoffa filed in DC district court probably had more to do with forum shopping than with any particular role that circuit plays.

I would imagine that it's where you would go to sue the A.G., wouldn't you?
posted by spiderwire at 12:57 AM on July 11, 2007


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