The Commutation's Odd Timing

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Lewis "Scooter" Libby isn't going to jail, but he still has to cough up a $250,000 fine, serve two years of supervised release and live with his conviction for perjury and obstruction of justice — unless they're overturned on appeal.

That's the upshot of the move by President George W. Bush to commute Libby's 30-month sentence for lying about having leaked the identity of CIA operative Valerie Plame. Commutation is significantly less sweeping than a pardon, which would have wiped out Libby's conviction and left him in the position of essentially never having been charged.

The President announced his decision just hours after the U.S. Court of Appeals in Washington turned down Libby's request to remain free on bail while he appealed his March conviction. Libby will now go free, but the court will still play a role in the case, since Libby is expected to pursue his appeal. If he loses, Bush could pardon him, though that possibility has not been mentioned publicly by anyone at the White House or in Libby's camp.

One of the odd aspects of the commutation is its timing. Normally, commutations or even pardons are not granted until after a sentence and judgment are final, meaning any appeals have been exhausted, according to Dan Farber, a professor at the University of California's Boalt Hall School of Law. "In a sense, then, the President is freezing something that was previously fluid," Farber said.

Commutations are also relatively rare. Bush has already pardoned scores of people, but legal experts said today they could not recall him commuting any sentences other than Libby's.