The judge who sentenced I. Lewis "Scooter" Libby now says that his two-year probation could be invalid now that President Bush has commuted the former White House aide's original 30-month prison term.
In eliminating Libby's jail time for his conviction in the CIA leak case, President Bush left in place Libby's two years of supervised release and a $250,000 fine. Libby paid the fine Thursday, leaving only his probation in question.
But supervised release – a form of probation – is only available to former inmates who have served prison time.
U.S. District Judge Reggie B. Walton said the law "does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration."
Walton gave Libby's attorneys and Special Prosecutor Patrick Fitzgerald until Monday to respond.
The White House said commuting Libby's prison term was legally the same as saying he'd served the time.
"You treat it as if he has already served the 30 months, and probation kicks in," said White House spokesman Tony Snow. "Obviously, the sentencing judge will figure out precisely how that works."
Several Democrats have criticized Bush for commuting Libby's sentence. Among the critics were former President Clinton and Sen. Hillary Rodham Clinton (D-NY).
Mr. Clinton tried to draw a distinction between the pardons he granted and Mr. Bush's decision to commute Libby's sentence.
"I think there are guidelines for what happens when somebody is convicted," the former president told a radio interviewer Tuesday. "You've got to understand, this is consistent with their philosophy. They believe that they should be able to do what they want to do, and that the law is a minor obstacle."
Sen. Clinton said the Libby decision was clearly an effort to protect the White House.
"There isn't any doubt now," she said. "What we know is that Libby was carrying out the implicit or explicit wishes of the vice president, or maybe the president as well, in the further effort to stifle dissent."
But on Thursday, the White House struck back.
Given Mr. Clinton's record on pardons, it is startling they would criticize Bush, White House spokesman Tony Snow said.
In the closing hours of his presidency, Mr. Clinton pardoned 140 people, including fugitive financier Marc Rich.
Congress will take up the issue next week, with Rep. John Conyers (D-MI), chairman of the House Judiciary Committee, opening hearings Wednesday on Bush's commutation of Libby's sentence.
Conyers said the hearings would include pardons made by Clinton, former President Bush and possibly other past presidents.
"We won't need to review each and every one of them, but the whole idea is to examine to what use this part of our criminal law is being put," he told Fox News Radio. "And whether it's being used adequately or are their other changes necessary."
From The Associated Press.