WSJ on Bush Guns and Bush Pardons

Amir Efrati of the Wall Street Journal has written an interesting piece on George W. Bush's use of the pardon power. It notes:

On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent. But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.

These patterns are significant because:

Convicted felons lose a host of civil rights, including the right to vote, seek political office or bear arms. A presidential pardon forgives federal crimes and restores basic rights. Many felons can win back some rights from their states after they complete their punishment. But the right to possess guns can be restored only by the president, says Margaret Love, a former pardon attorney under the first President Bush and the first term of President Clinton, who pardoned 396, mostly during his second term. (Felons are allowed to possess certain antique guns, she says.) ... Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts. In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon.

See full article here.

Governors Support Pardon for Governor

The Chicago Sun Times reports Illinois Governor Rod Blagojevich (D) has joined former Illinois Governor Jim Thompson (R) to support clemency for former Illinois Governor George Ryan. Amazingly, the story says nothing about the fact that Blagojevich has let thousands, that's right, thousands of clemency applications build up on his desk. And there has been much speculation about why he has neglected his duty to pardon.

Nonetheless, Blago says he thinks "it would be a good decision” for Bush to let Ryan out because he (Blago) tends to "always err on the side of compassion,” What? Is it possible that no one laughed when the Governor said this? Blag added, "I think people make mistakes." Indeed, Mr. Governor. Consult the huge pile of clemency applications on your desk to put a few thousand names next to that thought! See story here.

Pardon Power on NYC's "The Takeaway"

PardonPower visited with the New York City-based news program, The Takeaway, this morning for a nice, casual conversation with John Hockenberry about our favorite topic. To hear the audio, go here.

Harrison, Garfield Pardons Revoked by Blast Magazine

In a Blast Magazine article here, a "journalist" named Michael Corcoran writes:

George Washington only gave out 16 pardons, and William Henry Harrison and James Garfield, did not use pardons at all.

Now, that is some news! Pre-emptive, blanket pardons are b-o-r-i-n-g. And this is all certainly news to Elijah Rhea, James P. Smith and James Birch. They were all thinking that they were pardoned by President Harrison in March of 1841. Rhea and Smith actually think they were sprung from prison! John G. Wustum, Spopee (an Indian), Theodore Neilson, Charles P. Scott and Donald D. Cameron need to be informed that they were not pardoned by James Garfield in 1881. Spopee, in particular, has been misinformed. He actually thinks Garfield saved his life!

BBC Takes on Pardons

Jonathan Beale of the BBC takes on presidential pardons in a somewhat generic piece entitled: "Dilemmas of US presidential pardons" (see full text here). Along the way Beale says:

But in Article 2 of the American Constitution the founding fathers gave the president the power to pardon in the interests of mending national wounds and to remedy injustice.

The "founding fathers" actually gave very little attention to the pardon power. It did not appear in either of the major plans discussed at the Philadelphia convention and was scribbled in the margin of a draft by a single delegate. It received only cursory attention near the end of the Convention when most of the delegates thought the really "important" stuff had been taken care of.

The idea of pardons "mending national wounds" and to "remedy injustice" is more accurately associated with Alexander Hamilton's discussion in the Federalist - written well after the Convention. Beale says, "at first the presidential pardon seems strange for a democracy and a proud republic - more like a divine right of kings." Guess what Mr. Beale, Alexander wanted the United States to have a king! He gave a speech several hours long at the Convention calling for one. The result? The natural-born citizen qualification for president - which excluded Alexander Hamilton!

Beale says there are "two kinds" of clemency, a commutation or a pardon. In fact, there are at least eight: pardons, conditional pardons, commutations, conditional commutations, respites, remissions of fines and forfeitures, reprieves and amnesties. He also notes:

But pardons can also contribute to a bitter aftertaste when a president leaves office and the most controversial ones are often left to the last moment.

But what is more interesting is the fact that we have long forgotten hundreds of seemingly unforgettable pardons. As for "often" saving "controversial" pardons for the "last moment," there is zero empirical evidence that presidents have done this. The sensible explanation for the impression is that members of the media are actually paying attention to pardons at the end of the term and, as a result, are more likely to generate "controversy" with their reporting. They then stand back and are impressed with their own work! But they shouldn't be.

On the positive side Beale did take the time and effort to contact at least one expert on presidential pardons, Professor Daniel Kobil of Capital University School of Law. Kobil says President Bush has "trivialised the power into a virtual non-existence."

More Local Reporting on Recent Bush Pardons

* Daughter's heartfelt letter results in presidential pardon for dad
* Bush pardons former airman of drug charges
* Bush pardon recipient feels 'very lucky'
* A passion for hunting prompted his pursuit of pardon

Alaska: Stevens? What?

The Anchorage Daily News has a story with this headline: BUSH PARDON FOR STEVENS ISN'T OUT OF THE QUESTION. The story then follows with this observation:

But it's unclear whether Stevens even intends to ask for a pardon -- and the prospect of Bush circumventing his customary clemency procedures to pardon Stevens is unlikely. It's even less likely under a Democratic president.

OK. Maybe they do things different up there in Alaaska, but we read that to mean Stevens never really was in "the question," except in the minds of those with the most extraodrinary imaginations. The "prospect" of cirumventing customary procedures" is news, eh? Well, let's keep that prospect fresh in our minds all through the next administration, shall we? See "story" here.

Holder: Disqualified!

Andrew C. McCarthy has written an interesting piece entitled, "Opposed to Holder without Apology." It discusses, of course, the nomination of Eric Holder to the position of U.S. Attorney General and should be read in its entirety here. Here are just a very few juicy highlights:

... President-Elect Obama, who promised voters counterterrorism seriousness but has now given us an AG nominee who promoted a corrupt pardon process that sprung mass-murderers from prison … that is, when he wasn’t otherwise busy securing a pass for a notorious fugitive fraudster and orchestrating a SWAT team’s gunpoint-seizure of a six-year-old child for transport to a communist tyranny.

... Let’s be blunt here: The Marc Rich pardon was one of the most disgraceful chapters in the history of the Justice Department. Not the modern history, the entire history. Rich was accused of mega-crimes: millions in fraud, tax-evasion, and trading with the America’s enemies. In 2000, he was a fugitive. He had been one for nearly two decades, during which the government had expended immense resources in a futile attempt to apprehend him. Mind you, flitting from country to country to avoid prosecution, as Rich was doing, is itself a felony. When Eric Holder aided and abetted Rich’s pardon effort, he was not only grossly violating the Justice Department policy it was his job to uphold; he was dealing with the agents of someone who was actively committing a serious federal crime. That’s why, when prosecutors deal with a fugitive’s representatives, the appropriate question is: “When is he going to turn himself in?” It’s not, as Holder essentially asked, “What can I do to help?”

... Moreover, Holder extended his helping hand with the crassest of motives: the careerist was hoping the influential Quinn would look favorably on Holder’s quest to become attorney general in a Gore administration.

... No Republican who’d entangled himself even slightly in such an incident could ever again seek a position requiring Senate confirmation. Democrat Eric Holder was in this one up to his eyeballs.

... As execrable as the Rich pardon was, it wasn’t even the worst thing that happened that day.Having already exhausted the country with his excesses, President Clinton’s swan song was one of his worst: a mind-blowing series of pardons. It included not only the Rich escapade but pardons of two Weather Underground terrorists

... To be sure, Clinton administration deliberations over the Rosenberg commutation were not as secretive as those involving Rich. While Quinn and Holder worked completely in stealth, Rosenberg’s lawyers tried a two-pronged approach: a short public relations campaign (timed for the end of Clinton’s term to make it difficult to coordinate an effective response) combined with exploitation of the Clinton White House’s bizarre pardon vetting operation — the very one that Holder, the deputy attorney general, had encouraged in order to cut the Justice Department, and particularly the Southern District, out of Clinton’s deliberations.

... The Constitution vests the power to pardon, like the power to enforce the federal law, entirely in the chief executive. The president, however, does not prosecute cases — and neither, for that matter, does Main Justice, the DOJ headquarters in Washington which Deputy Attorney General (DAG) Holder ran from 1997 through Clinton’s farewell pardon-party on January 19-20, 2001.

... Clinton could pardon whoever he wanted to pardon, for any reason, no matter how corrupt or arbitrary. He was not required to follow the pardon process. But he should have. It was Eric Holder’s job to try to get him to follow it, and, at the very least, to make certain that Clinton knew the important facts of the pardon cases and how damaging it would be to a country besieged by al-Qaeda to be giving convicted terrorists get-out-of-jail-free cards. Instead, Holder helped Clinton end-run the process. It takes courage to stand up to a president who is doing something wrong. Holder exhibited cowardice.

... More importantly, Holder, as the nation’s second-ranking law-enforcement official, fostered not only the rogue operation but the climate which made terrorist pardons possible.

... That brings us back to the preceding year, 1999. That was when Clinton, with Holder’s support, pardoned (in this instance, again, commuted the sentences of) 16 terrorists from the FALN. The pardons violated the most basic Justice Department guidelines. This savage Puerto Rican separatist group had carried out over 130 bombings against American targets, murdering six people and wounding numerous others.

... FALN terrorists were not simply devoid of regret, they had not even sought clemency — the rudimentary demonstration of contrition that DOJ regulations require before clemency may even be considered. Yet, DAG Holder processed an application on their behalf anyway, and the victims of their atrocities — such as Joseph Connor, whose father was eating lunch in Fraunces Tavern when he was killed by an FALN explosive — were ignored.

... But Holder’s support gave Clinton the illusion of Justice Department support he needed, and the commutations were granted. And when pressed by Congress to explain himself, Holder stonewalled, claiming executive privilege (you know, the maneuver today’s Democrats want Karl Rove in handcuffs over). Memo to the high horse crowd (Sen. Pat Leahy, Chuck Schumer, Russ Feingold, et al.) who’ve lectured us for three years about the evils of politicizing the Justice Department: The FALN pardons were nakedly political. As former Clinton adviser Dick Morris has observed, they were transparently done to help Hillary Clinton, then campaigning to become a U.S. senator, with New York’s heavy Puerto Rican vote. There is no other explanation for them that passes the laugh-test.

... I’ll be hoping the Senate asks him some long overdue questions. And I’ll be wondering why, with abundant legal talent at his beck and call, President-Elect Obama couldn’t do better.

Watch List: Ryan In (Finally)

With some modifications.

Presidential Pardon Watch List - P.S. Ruckman, Jr.

- Clarence Aaron (drug dealing)
- Willie Mays Aikens (sold drugs to an undercover agent) X - released (6/5/08)
- Claude Allen (theft)
- Conrad Black (fraud and obstruction of justice) Application in.
- Duane Chapman (deprivation of liberty) X - won extradition battle (11/6/07)
- Roger Clemens
- Jose Compean (illegal arrest of an alien)
- Randy Cunningham Application in.
- Edwin Edwards (convicted of racketeering) Application in.
- John Forte (cocaine) X - sentence commuted to end December 22, 2008 (11/24/08).
- Florita Bell Griffin (bribery, theft, money laundering)
- Gilmer Hernandez (civil rights violation)
- Lawrence Hutchins (soldier, murder X - sentence commuted to 11 years (5/9/08)
- Ron Isley (tax evasion)
- Jack Johnson (violated the Mann Act)
- Marion Jones (steroids) Application in.
- Bernard Kerik (corruption)
- Scooter Libby (perjury, obstruction of justice)
- John Walker Lindh (terrorism) Application in.
- David H. McNab (smuggling and money laundering) Released, September 4, 2008
- Michael Milken (securities and reporting violations) Application in.
- Julius Nasso (conspiracy, extortion)
- Tom Noe (illegal campaign contributions)
- O.Henry (embezzling bank funds)
- Chibueze Okorie (driver for a heroine ring) Application in.
- Lance Persson (drug dealing)
- Leonard Pielter (double murder of FBI agents)
- The Pig (tasting so good) X - White House spokesman says "no" (11/18/07)
- Jonathan Pollard (spying on behalf of Israel X - President says "no change" (5/13/08)
- Ignacio Ramos (illegal arrest of an alien)
- George Ryan (corruption) Application in.
- David Safavian (lying to investigators)
- Richard Scrushy (corruption)
- Don Siegelman (corruption)
- Jeffrey Skilling (fraud, conspiracy, insider trading)
- Martha Stewart (obstruction of justice)
- Ted Stevens (violation of ethics laws)
- James Tobin (false statement to FBI)
- Michael Vick (conspiracy to operate interstate dogfighting ring)
- Robert Steve Vukelic (knowledge of a felony, failing to reporting it to authorities)
- Mark E. Whitacre (wire fraud, tax fraud, and money laundering)
- Charles T. Winters (violation neutrality laws). Application in.
- Jason Charles Yeager (methamphetamine charges)

Giants Kicker to Get Long Shot?

The Daily News reports Lawrence Tynes, the placekicker for the New York Giants is hoping that his 31-year old brother, a drug trafficker serving out a 27-year sentence, will be pardoned by George W. Bush. Tynes' lawyer is the finance chairman for the New Jersey Republican State Committee. Ironically, Bush singled out Tynes at a presentation on the White House lawn saying, "Lawrence Tynes, who's with us here, came through with a 47-yard field goal in overtime. You know, I knew you were going to make it." The Daily News also reports that Tynes' brother had a prior felony charge "as kingpin of a syndicate that transported 3,600 pounds of marijuana between Texas and Florida." Oddly enough, Tynes' lawyer will not even submit the paperwork for a commutation of sentence until next week. See story here.

Watch List: Ryan's Tardy Application

Chicago Public Radio reports "lawyers for former Illinois Governor George Ryan finally submitted a request yesterday, asking President George Bush to let their client out of jail." Six months ago, former Illinois governor Jim Thompson said the "next appropriate step" was to ask for clemency but, for whatever reason, the application was not filed. Chicago Public Radio also says one of Ryan's attorneys "would not comment on the delay."

Were they waiting on a letter of support from Sen. Dick Durbin?! See story here.

WSJ on "Sweeping Pardons"

This article in today's Wall Street Journal suggests the White House "isn't inclined to grant sweeping pardons for former administration officials involved in harsh interrogations and detentions of terror suspects," but its position "is still being formulated and may change."

Chronicle: Helping by Not Helping

The San Francisco Chronicle features one of those kind of self-defeating editorials that must have thousands of federal clemency applicants thinking to themselves, "Oh no. Not now. Thanks. Thanks a load!" The editorial notes:

On Monday, in what we hope will be the first of many farewell pardons, Bush pardoned 14 individuals who had paid their debt to society and turned their lives around. With a Bush pardon, they now are free from criminal records that might prevent them from voting, owning a gun or getting the right job. And they are liberated from the onerous label, "ex-con."

On Monday, Bush also commuted the sentences of John Forte and James Harris, two nonviolent offenders who had been sentenced, respectively, to 14 years in 2001 and 30 years in 1993 for cocaine trafficking. The Washington-based Families Against Mandatory Minimums praised Bush, noting, "There are currently many low-level first-time nonviolent drug offenders who are serving sentences that do not fit their crimes and who would be incredibly grateful if the president gave them a second chance and a fresh start. He has countless opportunities to provide them before he leaves office."

Wow. Could anything be more appropriate? And more encouraging? What a great case for more generous use of the pardon power. And then comes this:

Bush has shown that he can be compassionate when it comes to political operatives, such as convicted perjurer Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney.

There ya go. Soften old Bush up and then slap him with sarcasm and insult. Exaggerate a singular into a plural. Focus on one act of clemency at the expense of 178 others. Act like it is all about Libby, Cheney, Rove and the Dark Side! Very helpful. Very helpful.

In an attempt to regain its composure and focus beyond its own nose, the Chronicle says the clemency application of Clarence Aaron is "of special note." But Aaron probably wishes his name did not appear in an exercise in political mud slinging. It's too bad the people who supposedly support greater use of the clemency power are not more wise in how they go about cheering for it. See Chronicle editorial here. To see another example of the same stumbling and bumbling from the Chronicle, see post here.

Idaho: Solider Seeks Pardon

Sgt. Evan Vela, a U.S. Army sniper, was sentenced to 10 years in prison in February for killing an unarmed Iraqi civilian who came upon him and five other soldiers as they were sleeping in May of 2007. During the trial, Vela and others with his unit testified they were "confused and exhausted" after more than two days of trekking in high temperatures. Vela also testified that he couldn't remember shooting Genei Nasir al-Janabi. But Vela was also convicted of planting an AK-47 on the dead man's body and of lying to military investigators. His father says, "We have gathered many letters asking President Bush to grant Evan a presidential pardon before he leaves office." A web site supporting the pardon can be found here. See full story here.

Comment: Garrard McClendon Live

PardonPower visited with CLTV's Garrard McClendon Live this evening and great fun it was. McClendon runs a fast, but very smooth ship. He has great callers who make good points and - even more impressively - actually stay on point. You know how the callers can get! The result was a casual, conversational visit that tackled a fairly substantial number of tough issues with both rigor and wit. Although the major point of focus was certainly the possible pardon of former Illinois Governor George Ryan. Many thanks to Mr. McClendon for the opportunity. Hat tip to Tamara Holder for setting the visit up. See brief video clip here .

Watch List: Durbin and the Bizarro

In one of the most odd pardon stories this cycle, the Chicago Tribune is reporting that Illinois Senator Dick Durbin (D) says he "may ask the president" to commute the prison sentence of former Illinois Governor George Ryan (R). Says, Durbin, “I am evaluating that at this point. I have not taken any steps forward to send any kind of letter to the president. I’m going to make that decision at a later time.” He also adds:

“Let’s look at the price he has paid. His family name has been damaged. He has, at an advanced moment of his life, been removed from his family. He has lost the economic security which most people count on at his age. And he is separate from his wife at a time when she is in frail health. To say that he has paid a price for his wrongdoing, he certainly has. And the question is whether continued imprisonment is appropriate at this point.”

The three former federal prosecutors who worked on the Ryan case have already pondered this matter and oppose clemency for Ryan. They have also issued a statement saying Ryan has never accepted responsibility for his conduct. See story here.

The President: Local Reporting on Bush Pardons

* White Hall man receives presidential pardon
* Rapid City man among 14 to get pardons from Bush
* Conroe daughter convinces President Bush to pardon her dad
* Detroiter's sentence commuted by Bush
* Bush pardons Travelers Rest man
* Bush commutes ex-Detroit cop's prison term
* Carly Simon Gets Wyclef's Boy Outta Prison
* Man Says Presidential Pardon Lifted Burden of Conviction
* Prosecutor, son hail pardon of ex-cop
* Mo. man grateful for Bush pardon
* President's pardon almost moved farmer to tears
* Recipient of Bush pardon gave money to lawmakers' campaigns
* Charleston Man Given Presidential Pardon

The President: Bush By the Numbers

To date, Bush has used the clemency power 179 times (171 pardons and 8 commutations of sentence). The term is not yet over, but some cannot resist noting how stingy Bush has been with pardons in comparison with previous presidents. Here is the information you are guaranteed not to find elsewhere: Presidents who have exercised the pardon power less than Bush include George Washington, John Adams, Thomas Jefferson, William H. Harrison, Zachary Taylor, Millard Fillmore, Franklin Pierce, James Buchanan, James Garfield and George H.W. Bush.

In the first term, Bush (like most presidents before him) granted the highest number of pardons and commutations (20) in the fourth and last year.

In Bush's second term, the most active year to date is the second year, with 44 pardons and 1 commutation of sentence. For Bush to grant the highest number of pardons and commutations in the fourth year of the second term, we would have to see at least 13 additional acts of clemency. With the month of December still ahead, it seems reasonable to expect Bush will top the mark set in the second year of the term.

Even with this last round of pardons, December remains Bush's most prolific month for pardons and commutations (see updated chart here).

The geographic trends we noted in a previous post have become more stark. Three more pardons have been granted from the State of Texas, extending its lead over every other state (at 20 pardons). Florida remains in second (with 14). Georgia picks up one, but remains in third (with 11). In contrast, only 9 pardons have come from California and only 1 has come from the State of New York.

Finally, we cannot help but note that one of the commutations that Bush granted today went to John Forte, who has been on our Pardon Watch List for some time now. We recently noted that the Grammy-winning African American recording artist, who maintained his innocence in the face of a drug trafficking charge, was smacked with a mandatory sentence of 14 years. His clemency application was supported by singer/songwriter Carly Simon.

The President: Bush Pardons 14. Grants 2 Commutations

The Associated Press reports PresidentBush has granted pardons to 14 individuals. Bush also granted a commutation of sentence to two individuals. One of them went to John Forte, who has been on our Pardon Watch List for some time now.

The pardon list includes:

Leslie Owen Collier of Charleston, Mo.
Milton Kirk Cordes of Rapid City, S.D.
Richard Micheal Culpepper of Mahomet, Ill.
Brenda Jean Dolenz-Helmer of Fort Worth, Texas.
Andrew Foster Harley of Falls Church, Va.
Obie Gene Helton of Rossville, Ga.
Carey C. Hice Sr. of Travelers Rest, S.C.
Geneva Yvonne Hogg of Jacksonville, Fla.
William Hoyle McCright Jr. of Midland, Texas.
Paul Julian McCurdy of Sulphur, Okla.
Robert Earl Mohon Jr. of Grant, Ala.
Ronald Alan Mohrhoff of Los Angeles.
Daniel Figh Pue III of Conroe, Texas.
Orion Lynn Vick of White Hall, Ark.

Bush also commuted the prison sentence of James Russell Harris of Detroit.

Post: "Scholars" Disagree?

Recently, Andrew Napolitano, a "Senior Judicial Analyst" for Fox News, said George W. Bush could not issue a blanket pardon to everyone who may have engaged in extreme interrogation techniques. Why? Napolitano said, "You've got to name them. You can't pardon somebody without saying who it is." The source of this insight? Nothing. No case. No authority. No legal document or legislation (modern or ancient).

Now comes this generic pardon article, from the Washington Post which says, among other things:

President Abraham Lincoln bestowed such blanket amnesty on soldiers who took part in the Civil War, and President Jimmy Carter took similar action for people who resisted fighting in the Vietnam War between 1964 and 1973. But scholars disagree about whether the current president could preemptively pardon members of the intelligence community without naming them and specifying the conduct for which they would receive amnesty.

PardonPower is quite interested in knowing where all the scholarly debate is on this point. Indeed, if anyone knows any scholar anywhere that takes Napolitano's position, please contact us!

Sentencing Project on Presidential Pardons

The following letter appears in today's Washington Post:

With just two months remaining in President Bush's term, more than 2,000 clemency applications await his decision. As the pardon attorney and the president expedite the processing of these cases, they should keep in mind their own guidelines for granting commutation, among them: "Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence."

The U.S. Sentencing Commission lawmakers, judges and civil rights leaders agree that long mandatory sentences for crimes involving crack cocaine are unfair and lead to too many people being incarcerated for low-level drug offenses. Individuals seeking relief from these uniquely harsh penalties deserve the president's mercy.

Michael Short served 15 years of a nearly 20-year sentence for selling 63 grams of crack cocaine, about the weight of a candy bar, before he benefited from a presidential commutation this year. At a congressional hearing, U.S. District Judge Reggie B. Walton said, "Mr. Short's situation is not unique. And I think it's just a waste of the taxpayers' money to keep somebody like Mr. Short locked up for as long as he was locked up."Many more men and women like Mr. Short are seeking the president's mercy. For the sake of justice, I hope they receive it.

KARA GOTSCH, Director of Advocacy, The Sentencing Project, Washington

A Footnote to Remember

" ... President Clinton acted more controversially in the case of Paul Prosperi, an attorney charged and convicted for swindling clients. While Prosperi was awaiting sentencing. Clinton commuted 'any total period of confinement that has already been imposed or could be imposed in the future upon Arnold Paul Prosperi as a result of his conviction' ... In essence, Clinton placed a cap on the sentence that Prosperi could receive. The cap not only departed from the applicable sentencing guidelines but it seemingly undermined the Court's role of exercising discretion in sentencing. Although the cap may well be consistent with the separation of powers doctrine, it can be seen as an affront to the dignity of the sentencing court. Clinton could not wait for sentencing given the impending expiration of his term in office."

Footnote 190, page 1697, from Harold J. Krent, "Conditioning the President's Conditional Pardon Power," 89 California Law Review 1665-1720.

"I See Dead People ... Pardoned!"

When Bill Clinton pardoned Henry O. Flipper, the first African American graduate of West Point, in 1999, it was more than a little unusual. Flipper had been dead for about 59 years and the pardon disrupted a long-standing tradition of reserving presidential pardons for individuals who were alive (ask family members and supporters of short story writer O. Henry, legendary detective Clyde Wilson, and Dr. Samuel Mudd). Some may have worried that the Flipper pardon would lead to a surge in similar requests but, apparently, no such thing has happened. We are aware, however, of a fairly high-profile effort, spearheaded by filmmaker Ken Burns, to have boxing great Jack Johnson pardoned posthumously.

Charles Thompson Winters (pictured on left), who died in 1984, was never as famous as Jack Johnson, and probably never will be. As far as we know, no films are being made about his life. But, if we are going to pardon dead people, and Jack Johnson's application is considered legitimate by so many, then one has to think the pardon application of Winters (which has its own share of great arguments, letters from impressive supporters and evidence of truly notable contribution) is worth several long, hard looks.

In 1947, the United Nations provided for the creation of a Jewish and Arab state, but the Arab League rejected the mandate. As a result, when the British announced a date for withdrawal from the region (May of 1948), five Arab nations were posed to obliterate the new Israeli state. Supporters of Israel all over the world rallied to provide troops and weaponry on Israel's behalf. And a significant amount of this assistance came from individuals in the United States.

At the time, Charles Winters was a businessman flying fruit from Miami to Porto Rico. But Winters had something a former Army flight engineer, Al Schwimmer, wanted, namely, two B-17s (Schwimmer had already purchased two others in California and Oklahoma). Winters was reluctant to get involved but sympathetic to Israel. Eventually, he made the sale and led the flight of three aircraft from Miami to Czechoslovakia. The contribution could not have been greater as the four B-17s were the only heavy bombers in the Israeli Air Force. Their arrival on the scene has been variously described as "a major turning point" in the 1948 War of Independence, "critical" and "incredibly important."

The two "major players" in the aircraft purchase were Al Schwimmer and radio personality, Hank Greenspun, but all three men were convicted for violating the Neutrality Act. In January of 1949, Winters (who lacked the resources of other defendants) plead guilty and was sentenced to 18 months in prison. Yet, just two months later, a second pilot plead guilty and got no prison time at all. Schwimmer and two others demanded a trial and were found guilty. The result, once again, was a mere fine. Greenspun, likewise, plead guilty and was only fined. As a result, one letter supporting a pardon notes, "the sentence given to Winters was the most unjust of all of about a dozen persons indicted and tried."

But the story does not end there. Greenspun sought a presidential pardon and was awarded one by John F. Kennedy in 1961. Schwimmer refused to even apply, but was pardoned anyway, by Bill Clinton in 2001. As it turned out, Herman Greenspun's son, Brian, was a classmate of Clinton's at Georgetown University and a frequent visitor to the White House. Now, some say, it's Winter's turn to have his name cleared. And at least 21 members of Congress agree. As Mr. Schwimmer puts it:

He should be remembered as a hero for his contribution to the creation and preservation of the State of Israel rather than forever being marked as a ex-convict ... Charlie's pardon is important for history, for his legacy, and for his son.

Another letter of support from a prominent American reads:

... it would be a fitting tribute to his memory and a real blessing to his family if this pardon is granted. There are some moral people in this world, many of whom never receive the credit they deserve. Winters was obviously one of those and deserves it.

Pardons for Fugitives

George Lardner Jr., an associate at the Center for the Study of the Presidency, is working on a history of the presidential pardon power. In today's New York Times, he has an editorial entitled "A Pardon to Remember," which focuses primarily on the role that Eric Holder played in the pardon of Marc Rich. PardonPower finds the following passage particularly interesting:

The precedent against pardons for fugitives was set more than 200 years ago by President John Adams. The charge, brought in 1799, was murder on the high seas against a ship’s captain who was clearly trying to put down a mutiny. But the mutineers made it back to the States, ready to testify against the captain, while his supporters were still at sea. The captain was afraid to return. Asked to approve a nolle prosequi (a notice that prosecution won’t be pursued, a procedure then treated as part of the pardon power), the president consulted his cabinet, which concluded that a trial should come first and a pardon, if justified, after that. Clemency, wrote Secretary of War James McHenry, should be exercised only with “great caution and on the fullest information.”

Mr. Holder never came close to meeting that standard. He had the last word at Justice on clemency petitions and he saw to it that he had the only word. He brokered one of the most unjustifiable pardons that an American president has ever granted.

It makes all the sense in the world that the pardon of a fugitive from law would not be "the norm" - regardless of what the Draconian John Adams, or the members of his cabinet had to say about it. But the sense of the language used here ("the precedent against pardons for fugitives was set more than 200 years ago") is somewhat odd. Presumably Lardner is aware of the fact that the same John Adams did in fact grant a pardon, in the same year (1799), to a fugitive from law and that Thomas Jefferson did the same in 1801. That is to say, two of our Nation's first three presidents broke the "precedent" Lardner is describing.

In a professional paper I delivered seven years ago, I observed:

In preparation for my forthcoming book, I scanned the Annual Report of the Attorney General over a twenty-five year period (1907 to 1932) with the specific goal of finding pardons that were given to “fugitives from justice.” Even though my approach was somewhat casual (essentially a lot of fast eyeballing of very, very small print), I found a dozen such instances. A one-every-other-year estimate for the period must certainly be low, or conservative, as I may very well have overlooked some relevant cases and, in some instances, the Report may simply not have mentioned the “fugitive” status of clemency recipients. Of the twelve fugitives I quickly identified, eight had escaped from prison and four fled either before their crimes were detected or during the appellate process (and they were presumably out on bond).

As I would later conclude, pardons for fugitives are certainly not the "norm," but they are far from the most radical or freakish events in the world of clemency decision making. Was 1932 a long time ago? You betcha. But the Annual Report of the Attorney General stopped reporting individual acts of clemency in 1933. Thus, our inability to generalize about pardons of fugitives is more due to a lack of data than it is any particular reason to think such activity just stopped instantly, in 1933. See the full Lardner editorial here.

Context: Pardon Trivia Time

One would think that even the Office of the Pardon Attorney in the Department of Justice needs some sort of hazing ritual. You know, something to test the newbies. In that spirit, here is the PardonPower photo-based trivia quiz. We will post all of the answers below once we figure out how to print upside down and in italics!

* Which one of these presidents granted a pardon to baseball's George Steinbrenner?

* Which one of these presidents pardoned the person standing right next to him?

* Which of these presidents granted pardons in such a way that the president right after him (not photographed) would probably not have to pardon him?

* Which one set the all-time record for individual pardons in a single day?

* Which one commuted the sentence of an unrepentant man who attempted to assassinate President Harry Truman?

* Which president pictured pardoned singer Peter Yarrow, of Peter Paul and Mary fame?

* Which of the above presidents pardoned singer/song writer Merle Haggard before becoming president?

* Which one pardoned an All-American football player at the University of Oklahoma who was drafted in the first round by the New York Giants and went on to play for the Colts, Lions and Saints?

* Which one commuted the sentences of three unrepentant individuals who hit five members of Congress in a bi-partisan shooting spree?

* Which of the presidents above granted almost half of all of the pardons that he granted in the last month and a half of his term?

* Which one pardoned a best-selling author?

* Which president pictured pardoned the person later revealed to be "Deep Throat?"

* Which president pictured probably wished "Deep Throat" had been strangled and left for dead somewhere in a parking garage?

* Which one pardoned some accountants from a firm that he later hired to audit his own finances?

* Which president pictured commuted the sentence of a man described by the FBI as "a methodical gangland executioner?"

* Which president has the best odds of being the one who pardoned Jimmy "the Greek" Synodinos?

* Which one pardoned a race-car legend (we are told) named Junior Johnson?

* Which president pictured pardoned the son of a man who donated $100,000 to his presidential library?

Note: An unprecedented preemptive blanket pardon is granted to all cheaters (including myself, and everyone I know). Indeed, cheating is encouraged. See where it gets you.

Watch List: Different Angle on Conrad Black

Here is a snippet from an article by Bloomberg News today:

Conrad Black, the former Hollinger International Inc. chairman and British lord serving a 6 1/2-year sentence for fraud and obstruction, asked the Bush administration for clemency ... Black began serving his prison term March 3, making it unlikely he would be pardoned after such a short period behind bars, said P.S. Ruckman Jr., an associate professor of political science at Rock Valley College in Rockford, Illinois. “That sure says he has a lot of gall,” Ruckman said. “If he were to get a commutation of sentence this early in his sentence, that would be pretty extraordinary.” Bush would be more likely to commute Black’s sentence to a later date and allow him to leave prison after two or three years, Ruckman said. Black has maintained he is innocent.

See full article here.

Kentucky: Plea From Family of Victim

The Kentucky Post reports that "a group of family members" who have had "loved ones murdered" by Marco Allen Chapman are calling on Gov. Steve Beshear to commute Chapman's sentence to life without parole. In a statement delivered to Beshear, the family members ask that the Governor understand that "killing " Chapman will create "another set of surviving family members and friends." The statement also says that Chapman's relatives do not want anyone else "to experience the searing pain and the dark sadness that accompanies the intentional killing of a loved one.” See story here.

Resolution to Limit Pardon Power?

David Swanson reports: "Here's a resolution, hot off the presses from Jerrold Nadler, Chair of the Constitution Subcommittee of the House Judiciary Committee: H.RES.1531, "Expressing the sense of the House of Representatives that the President of the United States should not issue pardons to senior members of his administration during the final 90 days of his term of office," Sponsor: Rep Nadler, Jerrold [NY-8] (introduced 11/20/2008)."

PardonPower offers a friendly amendment ... "Nor shall the President, at any time, pardon any member of Congress, or employee or relative of a member of Congress, or any individual appearing on the FBI's "Most Wanted" list or any member of his/her (the President's) own family."

Watch List: Black is In

It's official, Conrad Black has "recently submitted legal bills to Sun-Times Media Group, Inc., some of which referred to work done in pursuit of a clemency plea, according to sources familiar with the matter."

Presidential Pardon Watch List - P.S. Ruckman, Jr.

- Clarence Aaron (drug dealing)
- Willie Mays Aikens (sold drugs to an undercover agent) X - released (6/5/08)
- Claude Allen (theft)
- Conrad Black (fraud and obstruction of justice) Application in.
- Duane Chapman (deprivation of liberty) X - won extradition battle (11/6/07)
- Roger Clemens
- Jose Compean (illegal arrest of an alien)
- Randy Cunningham Application in.
- Edwin Edwards (convicted of racketeering) Application in.
- John Forte (cocaine) X - sentence commuted to end December 22, 2008 (11/24/08).
- Florita Bell Griffin (bribery, theft, money laundering)
- Gilmer Hernandez (civil rights violation)
- Lawrence Hutchins (soldier, murder X - sentence commuted to 11 years (5/9/08)
- Ron Isley (tax evasion)
- Jack Johnson (violated the Mann Act)
- Marion Jones (steroids) Application in.
- Scooter Libby (perjury, obstruction of justice)
- John Walker Lindh (terrorism) Application in.
- David H. McNab (smuggling and money laundering) Released, September 4, 2008
- Michael Milken (securities and reporting violations) Application in.
- Julius Nasso (conspiracy, extortion)
- Tom Noe (illegal campaign contributions)
- O.Henry (embezzling bank funds)
- Chibueze Okorie (driver for a heroine ring) Application in.
- Lance Persson (drug dealing)
- Leonard Pielter (double murder of FBI agents)
- The Pig (tasting so good) X - White House spokesman says "no" (11/18/07)
- Jonathan Pollard (spying on behalf of Israel X - President says "no change" (5/13/08)
- Ignacio Ramos (illegal arrest of an alien)
- George Ryan (corruption)
- David Safavian (lying to investigators)
- Richard Scrushy (corruption)
- Don Siegelman (corruption)
- Jeffrey Skilling (fraud, conspiracy, insider trading)
- Martha Stewart (obstruction of justice)
- Ted Stevens (violation of ethics laws)
- James Tobin (false statement to FBI)
- Michael Vick (conspiracy to operate interstate dogfighting ring)
- Robert Steve Vukelic (knowledge of a felony, failing to reporting it to authorities)
- Mark E. Whitacre (wire fraud, tax fraud, and money laundering)
- Charles T. Winters (violation neutrality laws). Application in.
- Jason Charles Yeager (methamphetamine charges)

Pardon Places: The Unofficial Tour

In an interesting conversation with the folks at the BBC this morning, I was prompted - for the first time - to think about the top places that a tourist might go in the United States that are pardon-related. Here is my starter list. Explanations to follow. Nominations welcomed, places that are still around and associated with a photograph are preferred.

Alcatraz Island (San Francisco, CA) - OK, maybe it isn't fair to select a prison. But this one is different. Its most famous occupant, the "Birdman" would have never been known to the world had Woodrow Wilson not exercised the clemency power on behalf of Robert Stroud. Stroud was sentenced to death, but Wilson commuted the sentence to life in prison. Later, the whole bird thing began.

Blacksmith's Shop (New Orleans,LA)

The Blair House (Washington, DC) -This was the scene of one bizarre attempt to assassinate President Truman. Two gunmen made the play and one of them nearly sealed the deal. The second, Oscar Collazo, had his life spared by Truman. Although he was never repentant, and never applied for clemency, Jimmy Carter had him released!

Braddock's Field (Braddock, PA) - The scene of a major even associated with the so-called Whiskey Rebellion. Although many were detained, very few were formally charged and even less were actually charged. And George Washington pardoned them.

The Bradford House (Washington, PA)

The Crown Building (New York, NY) - One time haunt of Charles W. Morse, a Wall Street tycoon who almost single handedly caused the financial panic of 1907. Morse screamed of his innocence from prison then repeatedly feigned death. Eventually, he drank a concoction which caused his internal organs to simulate a fatal condition. William H. Taft granted a "deathbed" pardon and Morse went home to recover in a matter of days. In fact, he outlived Taft by three years.

Corner of 5th Ave and 15th (New York, NY) - This is the corner where Socialist newspaper editor Carlo Tresca was shot and killed. Charged with mailing "nonmailable matter" in 1923, Tresca was sentenced to one year and one day in prison. The ACLU convinced Calvin Coolidge to commute the sentence to four months. Car bomb attempts were made on his life and he was shot (and shot at) several times along the way. On January 11, 1943, whoever was after him finally caught up.

Foshay Tower (Minneapolis, MN) - Wilbur Foshay was a utilities tycoon. When he opened his four million dollar, 607-foot tower modeled after the Washington Monument, he celebrated for three days and spend $116,000. John Philip Sousa wrote a special piece and brought his band along for the celebration. Within two months, the market crashed and Foshay was bouncing checks. In 1932, Foshay was sentenced to 15 years in prison fraud. Five years later, he was pardoned by Franklin Roosevelt.

Ford's Theater (Washington, DC) - When you stand here, you are in the place where Abraham Lincoln, who was very generous with pardons, was assassinated. But, of course, you are also in the place where the conspirators worked their deed. Samuel Arnold (pardoned by Andrew Johnson) planned the assassination with others during a visit to the theater. Edward Spangler (also pardoned by Johnson) assisted John Wilkes Booth out of a back stage door and onto a horse.

The Fries House (West Rockhill (PA)

The Mudd House (Bryantown, MD) - This is the home of Dr. Samuel Mudd, who set the leg of Lincoln assassin, John Wilkes Booth. Mudd's family has sought a posthumous pardon, but research has not generally been kind to the hypothesis that Mudd was without guilt.

Niagara Falls (NY)

Nimisilla Park (Canton, OH) - This is the little park where Eugene Debs gave a speech that landed him in Federal prison. Although his case reached the U.S. Supreme Court, the conviction was upheld.

General Slocum Memorial (New York , NY) - In June of 1904, the steamer General Slocum caught on fire and over a thousand passengers (mostly women and small children) burned to death or were drowned. The navigation and judgement of Captain Van Schaick came into question immediately as were the safety standards of the vessel. Eventually, he served three and a half years in prison and was pardoned by William H. Taft.

Shushan Airport (New Orleans, LA)

U.S. House of Representatives (Washington, DC) - First, when you stand here, you are looking at seats held by at least nine persons (Representatives) who benefited from the pardon. An untold number of pardons have been supported by members. If you look up in the Visitor's Gallery, you will see the place where three protesters pulled out guns and sprayed the chamber with bullets. Five congressmen were hit. Although the gunmen were unrepentant, and never requested clemency, they were freed by Jimmy Carter.

Watergate Hotel (Washington, DC) - When you stand here, you are looking at the building that brought down Richard Nixon (who was pardoned by Gerald Ford). But you are also looking at the building where G. Gordon Liddy worked his madness and Eugenio Martinez assisted. Liddy's sentence was commuted by Jimmy Carter. Martinez received a pardon from Ronald Reagan.

Western Massachusetts

Thinking About Black: Same Old Mistakes

Colin Perkel of the Canadian Press has written an interesting article on the prospects of clemency for Conrad Black, who, it appears, filed an application for a commutation of sentence with the Office of the Pardon Attorney on November 10. A somewhat unusual group of "experts" are cited in the piece. Peter Henning, a professor of law at Wayne State University Law School, says, "I don't see that there's all that much appeal for granting a pardon or commutation to a CEO who abused his position, especially in this current climate." Indeed. That would be something like taking a "tough stance" on terrorism and then granting pardons to Weather Underground members and FALN. Rick Powers, associate dean at the Rotman School of Management in Toronto, says Black is "grasping at straws" and rates his chances of success as "infinitesimal." See article here.

Predicting success or failure in the clemency application process is risky business. But what really stands out in this article and dozens of others just like it that are starting to appear everywhere, is the complete lack of imagination in prognostication. It is as though Scooter Libby never happened! Remember how the media couldn't say enough times that Bush would have to pardon Libby, or Libby would go to prison? Remember how Libby did not go to prison, but Bush did not pardon him? If I were making a prediction regarding Black - which I am not, and will not - I would be mindful of options other than a commutation which springs Black from prison, or a full and complete pardon. Bush could also commute the sentence to a later date. That is, he could reduce the sentence, by a little or a lot, and Black could remain in prison. The President would certainly be criticized and Black and his supporters would still be unhappy. But ... does that ring a bell? Sound familiar at all?

Advice for Obama Re Pardons

The National Law Journal features an extensive interview with former U.S. Pardon Attorney Margaret Colgate Love. Here are some highlights:

NJ: How would the pardon process function in your ideal world?

Love: My first choice would be to keep the pardon process in the Department of Justice. But the key thing is that it has to be more independent than it has been in the last 30 years. It has become... captive to the agenda of the prosecutors in the department. Unless it could be made independent within the department, then it's never really going to serve the president in the way it should.

NJ: I know you take a dim view of speculation about which well-connected or celebrity convict -- Marion Jones' name has been floated -- will get a pardon. Does that theater have any value, though, since it keeps the pardon process in the public eye? Or does it cheapen the privilege?

Love: Well, I think it would be preferable, in my view, if the president used the power more regularly to benefit ordinary people and he used it to help the public understand how the justice system works. It's not just a special favors-dispensing system. It really is something that helps the system work more justly. And so I think it's kind of distracting when you get a lot of celebrities who are applying who would not ordinarily be eligible under the Department of Justice's own regulations. It's just distracting, and I think it's a missed opportunity, frankly, to help the public to understand about how the justice system works. It's also a missed opportunity, I think, to tell the good news about the justice system. How people can commit crimes and go off the track and yet they can put their lives back together and rehabilitate themselves. Those are good-news stories.

NJ: Let's say Obama was committed to using pardon for the lofty goals you've mentioned. Considering the bad rap the pardon process has developed in the last few decades, how would you advise him to go about reviving the pardon tradition?

Love: I would advise him to start pardoning pretty much right away. Give pardon to little people who are not particularly controversial, just ordinary people who have cases that fit within the Justice Department guidelines. I would also recommend that he do some grants that show some of the problems that people face in trying to rehabilitate themselves coming back to the community.

See full text of interview here.

Holder and the Rich Pardon

The Washington Times has a story on Eric Holder's involvement in the Marc Rich pardon. One interesting passage reads as follows:

Eric H. Holder, Jr., then the deputy attorney general, worked with former White House Counsel Jack Quinn to ensure that department officials — particularly federal prosecutors in New York who handled the Rich case — "did not have the opportunity to express an opinion on the Rich pardon before it was granted," the Republican-led House Government Reform Committee concluded in a 467-page report in 2002.

The committee's evidence included an e-mail in which Mr. Holder told Mr. Quinn to "go straight" to the White House and that the "timing is good" for Mr. Rich's request for a pardon. Normally, pardon requests are reviewed by career prosecutors before a recommendation is forwarded to the White House.

Mr. Quinn responded in a typewritten note to Mr. Holder, just 10 days before Mr. Clinton issued the pardon, "Your saying positive things, I'm told, would make this happen. Thanks for your consideration."

Compare this information with the innocent, too busy to really know what was going on Holder that will appear at the confirmation hearing. See story here.

Pennsylvania: Pardon Tale

Well, there are clemency stories and then there are clemency stories. As far as clemency stories go, this one is ... right up there!

Mitchell DiVentura strangled his former wife with the cord of a hair dryer in 1976. A first-degree murder conviction followed, but was overturned because of concerns over ineffective counsel. DiVentura was convicted a second time, however, and sentenced to life in prison without the possibility of parole. In 1987, he agreed to drop his appeal if his prosecutor and judge supported a bid for a commutation of sentence (to life with the possibility of parole). The prosecutor and judge agreed, sent letters to the state board of pardons and the board actually recommended clemency to then-Gov. Robert P. Casey. DiVentura must have felt like the Donald Trump of the criminal justice system. But Casey denied the application.

Where is this going?

Since the agreement between DiVentura and the prosecutor and judge, a new prosecutor has been elected. And the new prosecutor is not so keen on supporting the clemency application. In addition, the new prosecutor is seeking to block further appeals by DiVentura and recommending that DiVentura continue to use his old letters of support if he so desires!

Thanks to the great reporting of Sarah Cassi, we have more complete details on the case here.

Constructing the Comfy Chair for Holder

Josh Meyer of the Los Angeles Times has written on Eric Holder and is playing the tune that we expect to hear ad nauseum until the sham confirmation process is over. The template: Holder is wildly credentialed and utterly brilliant. A master mind. Re numerous controversies associated directly with his judgement and work ... he's an innocent victim, not as informed as he could have been, but through no fault of his own. Or, here is Meyer's language:

... his name was dragged very publicly through the mud in a Clinton administration pardon scandal ... his much-disputed role in Clinton's pardons, particularly that of fugitive financier Marc Rich, is coming back to haunt him ... Holder insisted that he didn't know about Quinn's pardon plans ... Holder said he was "neutral, leaning toward favorable" about the pardon. Later, he said he was unaware of some aspects of Rich's background ... He said he was swamped with other pressing matters on his last day in office ... Holder said that he wished he had asked more questions about the Rich case, and that he would have been opposed to a pardon if he had obtained more information at the time

The obvious questions for Mr. Holder: What were the positive aspects of the Rich pardon that made you lean toward it? Just exactly how much does it take for you to be swamped to the point that you start making casual, uninformed judgements about pardons for most-wanted fugitives? Is the position of Attorney General right for you? See Meyer's L.A. Times piece here.

Daily News on Holder Nomination

The New York Daily News reports would-be attorney general Eric Holder "faces a roasting from Senate Republicans." Unfortunately, the focus will be on "his role in former President Bill Clinton's last-minute pardon of fugitive financier Marc Rich." This is, of course, further evidence that the Republicans are indeed still obsessed with Rich, and would rather continue their failed effort to establish his pardon as "the most controversial ever" - as opposed to ensuring there is a legitimate confirmation process for Holder. Indeed, the The News says, "But the GOP's aim isn't to scuttle Holder. It's to make Senate Democrats squirm."

Of course, it is difficult to imagine very much squirming going on. The Democrats will have plenty of votes for confirmation. We all know it was Clinton who granted the pardon, not Holder. And when Holder claims he was the innocent victim of circumstances, Democrats will nod their heads in deep sympathy and the Republicans harangue will simply melt away. Republican Senators will come across as (and certainly be caricatured as) divisive and backward-looking, irrelevant politicians pining to envelope a nice, classy, very well-credentialed guy in scandals that are ancient history to many supporters of the country's first a-historical president.

Janet Reno told The News that the Marc Rich pardon is the worst thing Holder's critics can bring up. Says, Reno, "I have some concerns about it because it's never really evolved." And Reno advises her former deputy to offer a "candid, factual explanation" during his upcoming confirmation hearing. Yes, even Reno knows that focusing on Rich alone is a pure waste of time. See Daily News article here.

Remembering Eric Holder (Correctly)

On April 2, 2001, Lisa Richardson of the Los Angeles Times wrote a piece entitled, "A Prisoner's Please to a President." A portion of the article reads:

... If viewed favorably by the pardon attorney, applications moved up to former Deputy Atty. Gen. Eric Holder’s office, and then to the White House. That’s the theory.

Margaret Love, the nation’s pardon attorney from 1990 to 1997, in both the Bush and Clinton administrations, said the reality is far different. The current focus of political inquiry–whether strings were pulled in some special clemency cases–misses the point, she says. Pulling strings has been almost the only way for anyone to obtain clemency. While she was pardon attorney, Love said, she was discouraged from urging commutation for anyone who did not have high-powered support.

“I was operating under what was in effect a ‘just say no’ directive from the deputy attorney general’s office,” Love said. “At one point I was told explicitly that favorable recommendations in commutation cases would not be favorably received unless there had been a prior expression of interest from the White House or from a member of Congress.”

Such was the case with Marc Rich, an alleged tax evader who fled the country to avoid trial, and Carlos Vignali Jr., a Los Angeles cocaine trafficker ...

Press Secretary Expects "Some" Pardons

From today's press conference:

QUESTION: Is President Bush planning any pardons before he leaves office? And will he do what some other Presidents have done, and wait to release the names of those pardons in the very last minutes of his administration?

MS. PERINO: We never discuss pardons and the process. Of course, anybody who is eligible to request a pardon can do so, and they are given due consideration at the Justice Department, at the Office of the Pardon Attorney. I can't tell you when the President would be issuing pardons; I expect that there would be some. I don't expect them in the last day, though.

Holder on Mandatory Minimums: Ask Questions!

On March 11, 1999, Eric Holder, serving as the Deputy Attorney General for Bill Clinton held a press conference. Along the way, there was this exchange

QUESTION: In the last couple of weeks there has been renewed dialogue about mandatory minimum sentences. Some conservative groups and some traditionally thought of as liberal groups are both saying that the mandatory minimums are not working, they are filling jails unnecessarily. Is the administration fairly well satisfied that mandatory minimums are good idea? Or will you try -- will this administration try again in the coming Congress to take another look at mandatory minimums?

MR. HOLDER: Well, I do not think that we should ever foreclose the possibility that we take a look at how the laws that we have passed are working. I tend to think that mandatory minimum sentences that deal with people who commit violent crimes are almost always good things. I think the concerns are generally raised about mandatory minimum sentences for non-violent drug offenders. And I think there are some questions that we ought to ask.

I do not go into it with a presumption that they're necessarily bad, but we ought to look at the statistics and see, are we putting in prison, are we using our limited prison space for the kind of people that we want to have there? Are the sentences commensurate with the kind of conduct that puts people in jail for these mandatory minimum sentences?

Those are the kinds of questions I think that we ought to ask. And as thinking legislators on both sides, Republicans and Democrats, liberal and conservative, I would hope that we would ask those questions and then go into it with an open mind.

PardonPower suggest no serious confirmation process for Mr. Holder would be complete without this question: "You have had almost a decade to 'take a look' and 'ask questions' about mandatory minimums, with an 'open mind.' Now tell us what you have learned!

See full transctipt of the press conference here.

NR on Holder

This piece at National Review discusses the subject of Eric Holder's return to the Department of Justice as Attorney General. Among other things, NR notes:

In any other time, Holder would simply be an uninspired choice. But these are not ordinary times — we face a serious, persistent threat from Islamist terrorists. At the same time, Democrats have expressed outrage over both the alleged politicization of the Justice Department and the reckless disregard of its storied traditions. For these times, it is difficult to imagine a worse choice for AG than Eric Holder.

Much has been made, and appropriately so, of Holder’s untoward performance in the final corrupt act of the Clinton administration: the pardons issued in the departing president’s final hours ...

Holder’s role was aptly described as “unconscionable” by a congressional committee. He steered [Marc] Rich’s allies to retain the influential former White House counsel Jack Quinn (Holder later conceded he hoped Quinn would help him become attorney general in a Gore administration); he helped Quinn directly lobby Clinton, doing an end-run around the standard pardon process (including DOJ’s pardon attorney); and he kept the deliberations hidden from the district U.S. attorney and investigative agencies prosecuting Rich so they couldn’t learn about the pardon application and register their objections.

There’s more. In 1999, over the objections of the FBI, the Bureau of Prisons, and prosecuting attorneys, Holder supported Clinton’s commutation of the sentences of 16 FALN conspirators. These pardons — of terrorists who even Holder has conceded had not expressed any remorse — were issued in the months after al-Qaeda’s 1998 U.S. embassy bombings, when the Clinton administration was pretending to be the scourge of terrorism. The commutations were nakedly political, obviously designed by Clinton to assist his wife’s impending Senate campaign by appealing to New York’s substantial Puerto Rican vote.

Equally noxious were the stealthy pardons of Susan Rosenberg and Linda Evans — Weather Underground terrorists associated with Obama’s friends Bill Ayers and Bernadine Dohrn — issued on the same day as the Rich pardon. Rosenberg and Evans had been serving decades-long sentences for bombings targeting American government facilities. With Holder again helping to circumvent the pardon process and to evade objections from prosecutors, the terrorists’ jail terms were commuted just weeks after the bombing of the U.S.S. Cole.

... To be blunt, Holder is a terrible selection. If there’s any Obama cabinet nomination that Republicans feel moved to oppose, this should be it.

See complete National Review piece on Holder here.

Marc Rich? Is That It?

It is clear that the Obama administration has placed its ducks in order. Floating Eric Holder as the pick for Attorney General would have been an awful idea during the campaign. He is clearly retro and a key player in major controversies of the Clinton administration - the administration Obama condemned so loudly. The story-line, during the campaign, had to be "No way. Not interested. Not doing it."

But, now, the campaign which promised "change" and a "new tone in Washington" is over, and Bill Clinton's deputy attorney general is right back in the cue. NPR's Nina Totenberg reported this morning that the Obama team "consulted" with "key" Republican Senators to see if they would dare require a serious vetting process for the first African American nominated to the position of Attorney General. Of course, only a few surrenders were necessary, as the Democrats will have plenty of seats in the Senate.

Meanwhile, the template for the nomination, and eventual confirmation, is already carved in stone. The first African-American nominated (did we mention that?) for Attorney General will be lauded for his marvelous "credentials" and undeniable "experience." At best, he will be questioned casually - if not apologetically - about his relationship to the Marc Rich pardon. Holder will continue to play the naive, confused victim of Bill Clinton's last-minute scandals who was just too busy to think out everything very well (see Holder's testimony before Congress). All of the talk about prosecutorial and judicial experience will vanish into a cloud of sympathy for a helpless, decent, nice, classy guy who just happened to be in the wrong position in the wrong administration. The first African American nominee for Attorney General will be confirmed. Dissenters will be made to look like bitter losers and/or Clinton-haters, if not racists.

What is this stupid fascination with Marc Rich anyway? Was he the first fugitive pardoned? No. Was he the first wealthy guy pardoned? Of course not! Was he the first controversial last-minute pardon? No. Then, why? Why can't the media (and intelligent Senators) look past Marc Rich and see, among other things, Holder's role in the FALN pardons? or his role in the pardon of drug king-pin Carlos Vignali? Why will no one even bother to ask Holder why the pardon process all but dried-up during his tenure as deputy attorney general - despite dramatic increases in our prison population and a surge in clemency applications?

In part, the Republicans are to blame. They overplayed their hand. Constantly stinging from the Nixon pardon, they made every effort to declare Rich the recipient of the new "most controversial pardon" They failed. And in doing so, they left two dozen other controversies unattended. As for the media, it is simple. March Rich is a tie to the Clintons (always good for news drama) and the former Mrs. Rich is photogenic (or, some say). Lord knows images are important to the media.

Will Executive Privilege Become Cool Again Under AG Holder?

When Eric Holder, Barack Obama's recent choice for Attorney General, appeared before the Senate Judiciary Committee on October 20, 1999, he was Bill Clinton's deputy attorney general. Holder was called before the Committee to discuss pardons granted to FALN terrorists, but he did what Democrats have loudly condemned the Bush administration for doing for eight long years - he claimed executive privilege. Today, we know that, with respect to FALN, Holder ignored vehement opposition from the FBI, the Bureau of Prisons, and his own Justice Department and, rather than consult with attack victims and their families, instead met privately with members of Congress, recommending what the FALN members should do to facilitate a grant of presidential clemency. We now wonder if the mesmorizing aura of Obama will make the currently evil tool known as executive privilege all "cool" once again? Or, will Holder actually receive a serious vetting and confirmation hearing? Here are some excerpts from Holder's statement to the Committee:

Mr. Chairman and distinguished Members of the Judiciary Committee, I welcome the opportunity to appear before you today ....

I wish to begin by extending my heartfelt sympathy to those victims and their families whose lives were tragically affected by the criminal conduct of the FALN. It is difficult to fully comprehend the extent of the pain and suffering these victims were forced to endure ...

And one of the most important points I have learned from my 23-year career is that every tragic story of victimization is unique and unforgettable. And so, I want the victims of FALN violence to know that our thoughts and prayers remain with them now and in the future.

It is the exclusive prerogative of the President to decide what actions he will then take regarding the petition for clemency.

From the log you can see that in 1996, in accordance with Department regulations, the Department submitted a written report and recommendation to the White House regarding whether the President should grant or deny the petition for clemency, and that there were subsequent communications between the Department and the White House on the subject of clemency for the Puerto Rican nationalists as recently as two months ago. However, because of the President's assertion of privilege, I am not at liberty to disclose the contents or substance of the report, recommendations, or communications ...

The Department of Justice is obligated to respect and follow that assertion of the privilege.
We believe that there is a solid legal basis for the President's assertion of executive privilege here. Executive privilege is a necessary corollary of the executive function vested in the President by Article ll of the Constitution ...

The privilege is properly asserted where, as here, the President's need to maintain the confidential nature of presidential communications and executive branch deliberations outweighs Congress's need for the information contained in privileged documents.

The documents in the Department's files that are the subject of the President's assertion of privilege fall squarely within the well recognized scope of executive privilege ...

These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (418 U.S. at 708).

Executive privilege is not limited to advice and other communications made to the President. Rather, it is well established that the privilege also applies to intra-agency deliberations, such as the deliberative communications within the Department of Justice in connection with the preparation of advice to the White House on this clemency matter ...

Thank you again for the opportunity to appear before you on this important matter. The Department of Justice wants to continue to work with the Committee to appropriately address any issues relating to this matter.

See Holder's full statement here.

Election Over. New Tune. Holder Next AG.

During the presidential campaign, Eric Holder expressed no interest in being Barack Obama's Attorney General - at least not publicly. And he all but assured those who asked that his family would not let him have any part of it. The routine seemed quite acceptable as Holder is somewhat retro and controversial - not the best combination for a campaign portending a "new tone in Washington" and the "politics of change." Holder, a former federal prosecutor, served as deputy attorney general under Bill Clinton and played a critical role in the at least two gross abuses of the pardon power, the Marc Rich pardon and the FALN pardons. Thus, any hint of Holder serving as AG during the campaign may have been greeted with a swift uproar.

But the campaign is now long over and there is less need to appear consistent with the overly broad and generally senseless rhetoric of "change." Today, Reuters reports President-elect Barack Obama has extended an invitation to Eric Holder to be the next Attorney General of the United States. It is also reported that Holder has accepted. I believe it was Mrs. Clinton who first distinguished between "change" you can "believe in" and "change" that you can simply "xerox!"

In addition to Holder's controversial role in extensions of clemency to fugitives and terrorists, PardonPower feels it is worthy of note that the pardon process all but vanished while Holder served as deputy attorney general. We are aware of no evidence that he believes pardons are an important, much less necessary, function of our system of justice. If George W. Bush has been "stingy" with pardons, the Obama administration, under Holder's leadership, might seem like the end of pardons altogether. See report here.

Senior Judicial Analyst?

Andrew Napolitano is a "Senior Judicial Analyst" for Fox News. One would expect profound insight coming from someone with that kind of title. Instead, we get the observation that George W. Bush "is not a big pardon guy." Wow, was it the well known record in Texas, or the last 8 years and a ton of commentary that prompted that insight?

More significantly Napolitano says Bush cannot issue a blanket pardon to everyone who may have engaged in extreme interrogation techniques. Why? Napolitano says, "You've got to name them. You can't pardon somebody without saying who it is." The source of this insight? Nothing. No case. No authority. No legal document or legislation (modern or ancient).

PardonPower tends to disagree with the Senior Judicial Analyst. The source of our disagreement? We know how to read. And we like to think we do it well before we express such extravagant opinions. Unlike Napolitano, we are familiar with an attempt at common law to insist that the King of England name pardon recipients. But we are not familiar with the notion that this has ever applied to presidents of the United States. Of course, amnesties (a form of the pardon power) do not list specific names of offenders. But we are also aware of situations historically where presidents have in fact pardoned "unnamed individuals" - indeed that is the exact language on the clemency warrant. Likewise, we are also aware of pardons that have been granted to single individuals who are not named in associated warrants. We therefore announce that we accept/claim the title "Mega Turbo Inter-Galactic Senior Legal Analyst Extraordinaire."

Napolitano also states that he does not expect to see a pardon for Scooter Libby. Well, maybe his opinion is more informed on that matter. See story here.

Ohio: Clemency Denied

The Columbus Dispatch reports that Governor Ted Strickland has denied the clemency request of convicted killer Gregory Bryant-Bey, who is scheduled to be executed tomorrow morning. Says the Dispatch:

Strickland release [sic] a statement indicating he had reviewed and rejected Bryant-Bey's request that his life be spared. The governor did not explain his reasoning.

See story here.

Watch List: Stevens Not in the Pardon Pool

We placed Alaska Senator Ted Stevens (R) on our Pardon Watch List very grudglingly (see previous commentary in PardonPower posts here and here). But, today, The Hill reports that Stevens will not be seeking a presidential pardon. We never really expected that he would and we seriously doubt that the president will grant an unrequested pardon. See story here.

UPDATE: The Crypt asked Stevens to elaborate on his decision not to seek a pardon from President Bush. Stevens responded, "I didn’t say anything about that at all. I said nothing about it. No comment, that’s all. I have no comment." PardonPower remains unconvinced Bush will be granting a pardon to Stevens.

Hostin Predicts Clinton-Like Pardons!

Sunny Hostin, a "legal analyst" with CNN, has made a return appearance to discuss presidential pardons. In her previous attempt, well, it was pretty ugly. The report was brief, but highly erroneous. It sounded like "news" but, on second glance, had very little substance. For spice, actress Denise Richards was described as the wife of fugitive Marc Rich. In our review of the disastrous "report," we noted there was no need for Hostin to say Marion Jones "may" be seeking clemency from Bush, because it was widely reported that she applied for clemency four months ago. As an example, we linked to a New York Times story on the application.

In her comeback report, Hostin's credentials are displayed on the left side of the screen - and with good reason! She suggests there is something like a groundswell of chit-chat / support on behalf of former track star Marion Jones. PardonPower is aware of no such groundswell and cannot find a trace of it in recent web postings, news reports or editorials. It appears that Jones is Hostin's pet cause. Which is fine. It is a free country. But personal pet causes should not be paraded as "news." On the other hand, this time around, Hostin acknowledges that "a lot of other people," including the New York Times (!), reported on Jones' application a long time ago.

At the end of the "report," Hostin says she thinks we will see "something like" President Clinton's controversial last-minute pardons "from President Bush as well." Indeed, she says she thinks we will see something "much, much more controversial coming." On the other hand, Denise Richards was not mentioned in this report. See Hostin's attempted comeback report here.

Kentucky: Rejection

WTVQ reports Governor Steve Beshear has declined a request for clemency for Marco Chapman who has admitted to killing two children in 2004. Chapman says he wants to die and is not attempting to delay or escape execution. The execution is planned for this Friday. See report here.

The Obama Administration: Pardon in the Works for Mark Cuban?

The Securities and Exchange Commission (S.E.C.) has filed "insider trading" charges against Dallas Mavericks owner - and Barack Obama supporter - Mark Cuban. Already there is talk in some quarters that Cuban may be preemptively pardoned by president elect Barack Obama immediately following the application of the Oath of Office. Such a pardon would effectively derail any further investigation by authorities and erase the possibility that Cuban would be charged with anything, regardless of any mountain of evidence that might (or may not) be compiled against him.

PardonPower was unable to reach either Obama or Cuban for comment. However, one unnamed source said, "Such a pardon would not surprise me one bit. Obama is a corrupt Chicago thug and letting his buddy off the hook would be standard fare." An attorney, who also declined to go on record, says:

It would certainly be an unprecedented and inappropriate act. The Scooter Libby commutation would look saintly by comparison. With the economy the way that is is, if there is any justice in the world, Congress will launch an investigation the second the clemency warrant is signed. No president has ever granted a pardon to a supporter charged with insider trading right after the inauguration.

Scholars say President Obama could grant a preemptive pardon for Cuban at any time, before during or after conviction. The pardon could also be granted regardless of the "rules" and "guidelines" in the Department of Justice regarding "waiting periods" for clemency applications. It is also said that Obama would not have to provide a single reason for the pardon and could grant clemency without comment. Obama could also grant pardons to friends and associates of Cuban who might be ensnared in future investigations. As one scholar put it, "there is really no limit to what Obama can do. No one can stop him. It's just unbelievable"

Other presidents have granted controversial pardons throughout history. Gerald Ford pardoned Richard Nixon and Bill Clinton pardoned Marc Rich. Pardons were also granted to Confederate soldiers after the Civil War. Some have called for restrictions on the pardon power, but attempts by Congress to limit the power have failed. Developing ...

--------------------------
Editor: Regular readers of this blog will correctly judge this post to be a light-hearted lampoon of the kind of news "reporting" and blogging that we have had to endure throughout the Bush administration.

The President: ABC News on Pardons

Note: In the interest of full disclosure, PardonPower talked with the author of the piece discussed below for about a half hour.

Scott Michels at ABC News has filed a report on presidential pardons ("Record Numbers Seeking Bush Pardons"). After mention of several people on our Pardon Watch List and a cursory listing of "controversial" pardons, Michels writes:

"I think it's an absolute disgrace the way Democratic and Republican administrations, the Bush Administration apparently being the worst, have departed from giving many commutations and pardons except in political cases," said Phillip Heymann, a former Deputy Attorney General in the Clinton White House who now teaches at Harvard Law School. "I think it would be wonderful if we tore up everything to do with pardons and started over and made it a classy operation, with people carefully going over applications."

The article also references Margaret Colgate Love, a former U.S. Pardon Attorney, who says the Office of the Pardon Attorney is moving through cases without reviewing them in the same detail that it used to. According to Love, many of her clients are no longer being referred by the office for an FBI background investigation, one of the initial steps for potentially promising pardon applications. Says Love:

"The Department of Justice has basically closed down the pardon program for all intents and purposes for meaningful release of ordinary people. I don't think any substantive thought is given to the issues raised by the people who are applying."

Professor Daniel Kobil (Capital University School of Law in Ohio) says we are seeing a "Willie Horton-ization of the clemency power." See ABC News story here.

The President: Post on Lame-Duck Pardons

Today's Washington Post features an editorial entitled, "In Defense of Lame-Duck Pardons." The author is former U.S. Pardon Attorney Margaret Colgate Love. Among other things, Love notes:

As President Bush's term nears its end, rumors abound that he will grant a lot of final pardons. Hundreds of clemency applications have been filed with the Justice Department in the past year, a reflection of the popular belief that pardoning is an end-of-term phenomenon in which all presidents indulge ... Yet presidential pardons have rarely been concentrated in the weeks between Election Day and the inauguration of a new president. There was no precedent for the torrent of irregular grants issued by Bill Clinton on his last day in office, many of which were the product of special pleading by Clinton friends and family. Historically, pardoning has occurred regularly over the course of a president's term, more frequently in the middle than at either end.

PardonPower has discussed pardon statistics with Love in recent months and we seem to be inching toward congruence. We agree that Clinton's last-minute splurge was unique in terms of degree. Other presidents (a handful) have splurged near the very end of their terms, but none of them to the degree that Mr. Clinton did. We continue to maintain however, that most presidents have granted the highest number of pardons in the fourth and last year of the term.

More importantly, Love argues the pardon power "is more functionally relevant to the federal justice system today than it has been since the 19th century" because demand for clemency "increases when the system lacks other mechanisms for delivering individualized justice, for recognizing changed circumstances, or for correcting errors and inequities." She then notes the Sentencing Reform Act of 1984, in particular, has made the pardon power "virtually the only mechanism by which lengthy mandatory prison sentences can be reconsidered once they have become final."

Love laments that pardon "has not played a meaningful role in the justice system for years," but offers that "a series of final pardons could highlight flaws in the justice system that would be instructive to the next administration." We could not agree more. See Post editorial here.

Watch List: CNN Fumbles Attempt at News

CNN is reporting that I. Lewis "Scooter" Libby "may - that's right MAY - have filed a request for a pardon from President Bush." The report originates with CNN's Sunny Hostin - a "legal analyst" -who appeared on the program American Morning. Hostin cited no evidence that this "may" have happened and provided no insight as to when it may have happened. She topped it all off by providing no source(s) for the information. Guess that is what counts as "reporting," or "legal expertise" at CNN.

But the "report" is actually even worse than that. Hostin also reports track star Marion Jones "may" have applied for a pardon. But it widely known that Jones has had an application in the Department of Justice since last July. Do they get the paper over at CNN? Kiran Chetry, the person interviewing Sunny (aka "Honey"), says George W. Bush has granted fewer pardons than any other president - which is patently false. Perhaps she meant fewest number of pardons for any two-term president. No, wait, that would be false too. Hostin, the "legal analyst," describes Bill Clinton's last-minute pardon bonanza as "typical" - which is also patently false. We even learn that fugitive Marc Rich's wife was actually the lovely Hollywood starlet Denise Richards (pictured above to the left)! LOL. Maybe Charlie Sheen will be the next U.S. Pardon Attorney, huh?! See this classic train wreck of a "story" and video here.

Virginia: Times Calls for Pardon

Today's New York Times features an editorial calling on Virginia Goveror Tim Kaine to pardon the mem popularly known as the "Norfolk Four" (Derek E. Tice, Joseph J. Dick Jr., Danial J. Williams and Eric C. Wilson). In part, the editorial says:

It is understandable that Mr. Kaine has not rushed to issue pardons. A governor should not lightly set aside a jury verdict. We fear that politics may also be involved. Pardons are generally unpopular with voters, and no politician wants to risk being targeted by a Willie Horton-style attack ad, blaming him for releasing a dangerous criminal back into society.

A grave injustice has been committed here. Mr. Kaine, who is a lawyer and a former professor of legal ethics, should understand as well as anyone how these prosecutions went awry. He should also understand how horrific and unfair it would be to force three men to spend the rest of their lives behind bars for a crime they did not commit.

See full text of editorial here.

The President: Intelligent Writing on Terror Pardons

Tim Shipman of the Telegraph (UK) has provided what is probably the single best written article on the topic on the possibility of Bush pardons related to the War on Terror. For starters, you could read three dozen articles on the topic and never see this:

Senior intelligence officers are lobbying the outgoing president to look after the men and women who could face charges for following his orders in the war on terrorism. Many fear that Barack Obama, who has pledged to close the Guantanamo Bay detention camp and put an end to the policy of extraordinary rendition, could launch a legal witch hunt against those who oversaw the policies after he is sworn in on Jan 20. Most vulnerable are US intelligence officers who took part in intensive interrogations against terrorist suspects, using techniques including water boarding, which many believe crossed the line into torture.

The passage makes it plain that the concern should not be so much whether or not Bush will grant such pardons as it should be whether or not the incoming administration intends to launch HUAC-like show "investigations" over differences in policy (the P-word you rarely see in scare scenario articles that are so fashionable of late). The extraordinary, unprecedented behavior would not be the pardon so much as it would be the prosecution of a vast pool of individuals from the previous administration over policy differences - policies which Obama would have the power to modify or reverse in an instant. And what a great thing for the Obama administration to be noted for! Imagine what an impression will be made if the vicious dragnet somehow misses and/or spares Democratic members of Congress who have been briefed on such matters from day one? What did they know? And when did they know it?

Shipman also notes that, far from blocking sincere investigatory efforts, preemptive blanket pardons would "make it easier for the incoming administration to find out exactly what went on, the goal of many who want to prevent repetition of what they view as abuses." As one ex-CIA official puts it, "If you want people to tell the truth, the best way would be to give them legal guarantees. A pardon is not the only way you can do that."

Of course, those individuals with different goals are going to be sorely disappointed by any facilitation of efforts to merely get to the truth. Take James Ross, for example, the "legal and policy director for Human Rights Watch." His rhetoric reveals a different set of goals:

"It would be the first pre-emptive pardon in US history for war crimes. Such a pardon might seek to protect low-level government officials who relied on legally dubious Justice Department memos on interrogations. But it would also provide blanket immunity to senior administration officials who bear criminal responsibility for their role in drafting, orchestrating and implementing a US government torture programme."

Ross is not burdened by the complexity of policy, interpretation of statutes or presidential transition and will not let the truth muddle up his sensational search for "criminal responsibility" for "war crimes." See Telegraph article here.

Newsweek: The Short Bus of Pardon Reporting

Newsweek seems to always have a way on being on the cutting edge of saying absolutely nothing newsworthy when it comes to presidential pardons. See its reporting on the Scooter Libby commutation, for example .... "Bush was intensely focused on the matter" ... ugh! Now Michael Isikoff and Mark Hosenball have produced an articles which says 1) The Justice Department is getting a lot of requests for pardons and commutations 2) there are "few signs that Bush will be open to anything resembling the last minute 'pardon party' that marked President Clinton's final days in office" 3) Bush has been "stingy" with pardons but 4) notable persons on our Watch List are applying anyway.

With respect to 1), 3) and 4), Newsweek appears to be somewhere between 1-3 years behind the curve. With respect to 2) ... Bush will not do what Clinton did ... Well, was there any person in the universe who really thought that he would? If so, what on earth was the basis of that opinion? In Newsweek's defense, Isikoff and Hosenball did use the pull they have to come up with unnamed sources here and there who were willing to say Bush may - or may not - do this or that!

Incredible. Just incredible. See further commentary on the quality of Newsweek's pardon "reporting" here and here.

PardonPower to the Movies?

The Times Online (UK) is featuring a list of what it calls "The Biggest Movies of 2009." At number 11, we read

11: The Informant (September)

Matt Damon and Scott Bakula star in Steven Soderbergh’s promising black comedy based on a true story about the ostensibly dull world of agribusiness price fixing. If you enjoyed The Insider and would like to see much the same film again, but this time laced with some mordant humour and featuring a bipolar hero, this might be just the movie for you.

We are thinking the movie would be the long-anticipated rendering of the story of Mark Whitacre, who is featured on our Pardon Watch List. See Whitacre's personal homepage here. See Times Online upcoming movie listing here.

"Wish List" for Obama and AG

The White Collar Crime Blog features a "Wish List to President Barack Obama & The Next AG." The list - which is interesting reading - does not give much attention to the pardon power per se. But we did notice this suggestion for President-elect Obama, near the very end:

* Commute Jamie Olis' sentence.

Who is Jamie Olis? Olis is a former executive at Dynegy who is serving a six-year prison term. The Wall Street Journal's Law Blog recently summarized his story as follows:

In Olis’s case, the midlevel energy trader was indicted in 2003 on charges that he helped engineer a sham financial transaction. Dynegy stopped paying his legal fees after it was pressed by the government to cut Olis off. In May, a Texas jury ruled that Dynegy improperly cut him off in a bid to avoid a criminal indictment of the energy company. The jury ordered Dynegy to pay Olis’s attorney Terry Yates, who brought the case, $2.5 million in damages. The company plans to appeal.

For Olis, 41 years old, the decision was a hollow victory. His original sentence of 24 years, which became a lightning-rod on the issue of white-collar prison sentences, was overturned on appeal and then reduced to six years. His lawyers won’t say who paid for the appeal, which was led by high-profile Houston white-collar attorney David Gerger, but one expert witness told the WSJ he testified at no charge. Olis remains in prison.

Watch List: 200 Rabbis Support Pollard

It is reported that the Zionist Organization of America and 200 Israeli "chief rabbis" have asked President Bush to grant a pardon Jonathan Pollard, the former U.S. Navy analyst who was sentenced to life in prison in 1987 for spying for Israel. A letter from the ZOA says:

"The on-going imprisonment of Jonathan Pollard is unnecessary, unjust, disproportionate and inexplicable in terms of protecting the national interest. We respectfully appeal to you to put an end to what is now an inequitable term of imprisonment and pardon Jonathan Pollard."

The 200 regional and municipal chief rabbis note:

"Jonathan Pollard is currently serving his 23rd year in prison. He is ill and his condition is serious. We respectfully request that you act mercifully towards him. Please grant him clemency as a humanitarian gesture to the Jewish People and the State of Israel."

See article here.

Watch List: Ramos Resentenced

Fox News and the Associated Press report former Border Patrol agent Ignacio Ramos has been resentenced to his original 11 years and a day in prison. On Tuesday, Ramos' partner, Jose Alonso Compean, was also given his original 12-year sentence. The report adds:

Ramos and Compean's supporters continue to hold out for assistance from President Bush. "The best hope for these agents remains commutation from either the outgoing or the incoming president," T.J. Bonner, the president of the National Border Patrol Council, told FOXNews.com. "We still remain very hopeful that that will happen, and if it doesn’t, we’ll have the appeal to the Supreme Court."

Rep. Dana Rohrabacher (R.-Calif.) issued a statement on Thursday saying "many patriotic Americans are dismayed by the continued persecution and legal torture" of Ramos and Compean. A clemency petition is also pending with the Office of the Pardon Attorney. See story here.

Texas: Rejection

The Houston Chronicle reports that the Texas Board of Pardons and Paroles rejected the clemency plea of Denard Mann, convicted of rape and murder, clearing the way for his execution. He will be the 17th Texas inmate executed this year. See story here.

Louisiana: PardonPower to the "Ringside"

Later this morning, 10:00 Central Standard to be exact, I will be visiting with Jeff Crouere who has a radio talk show entitled "Ringside Politics" on WGSO (990AM, New Orleans). Interested persons can listen to the broadcast on their computers by going here.

It was Jeff who actually caught PardonPower's attention when he reported on the latest news regarding the clemency application of former Louisiana Governor Edwin Edwards (see post here). I sent an e-mail to Jeff and asked if he would be interested in chatting about pardons on his program. A few days later, the offer was graciously extended. Feel free to listen in, call (985-661-2929 or 504-556-9696) or comment afterward. It should be interesting to share information with listeners and hear the views of the host and persons from that area of the country regarding Edwards and pardons in general.

Number 9 Dream: Unprecedented Preemptive Blanket Pardons

Salon features a piece by Mark Benjamin which claims there is "growing talk" in Washington that President Bush "may be considering" an "unprecedented 'blanket' pardon" for "people involved in his administration's brutal interrogation policies." One could write a dissertation on what is said, and not said, in this rather peculiar, but equally unenlightening, bit of "news." The talk is "growing" is it? Well, what the heck, quote 10 or 11 credible, intelligent, fair-minded persons engaging in such talk! Bush "may be considering" such an act? Why would he not be? What is the cause of the consideration, if it really exists? Hint: the complaints of those concerned about "brutal interrogation policies." Ah, there's the rub. The concern is not so much about the policies as it is that pardons might rob someone of future opportunities to make political hay by feigning concern about such policies - in the Bush administration and no other - via show trials and investigations. Even then, would critics of the administration really lament the appearance of such pardons? Of course not. They would be celebrated wildly as clear "proof" of anything and everything. And they would certainly save the President's critics the expenditure of a great deal of time, energy and effort that, in all likelihood, would have very little payoff.

This much is clear as Benjamin describes the "Obama Plan." It would "emphasize fact-finding investigation over prosecution" (Translation: it would revel in slander, innuendo and partisan demonization. You know, the politics of change). Of course, the plan would not "rule out future prosecutions," but would "delay"(!) such decisions until "all essential facts" could be "unearthed." (Translation: there is a sense that such "investigations" would be so sensational that they could be easily stretched out for an extended period of time, and would not really require substantive findings or convictions - See HUAC). Indeed, Benjamin says "any decision on prosecutions probably would not come until a second Obama presidential term."

But, in a more sober-minded passage Benjamin writes:

"But few think prosecutions are realistic, given the formidable legal hurdles and the huge policy problems competing for Obama's attention. Among them is the complicated task of closing down the military prison at Guantánamo Bay, which Obama advisors say is a priority. Some observers outside the Obama camp are also questioning how much Democrats really want exposed with regard to interrogation, since top Democrats in Congress were briefed in secret on some of the harshest tactics used by the CIA and appear to have done little, or perhaps nothing, to stop them."

Yes, what did these top Democrats know, and when did they know it?! Lord, critics of the President would be quite fortunate if that were all that lay between them and their dreams! It is clear that blanket pardons are not suspected and feared so much as they are desired, craved, longed for. Indeed, Benjamin is already warming up, ready to criticize the President's attempt to "seek to frame" a blanket pardon "as a preemptive strike against wrongheaded, partisan retribution" and his piece quotes a virtual Who's Not Who in the clemency-related scholarly community willing to outline all sort of horrific scenarios.

Apparently none of Benjamin's scholarly team mentioned that predictions of preemptive pardons have been a feature of other administrations and, so far, the predictees 0-for-ever. Now that is "news." See the Salon piece here.

Watch List: Compean Back to 12 Years

The Associated Press reports that former Border Patrol agent Jose Alonso Compean was resentenced today to his original 12-year prison term. The 5th U.S. Circuit Court of Appeals threw out some of the convictions against Compean and Ignacio Ramos Ramos earlier this year, prompting the resentencing. Ramos will be resentenced Thursday. Compean's attorney says the case "just screams for executive clemency." See post here.

NPR: On Speculation and Pardons

Julian Zelizer, a professor of history at Princeton University's Woodrow Wilson School, was interviewed by National Public Radiothis afternoon . The broadcast began with speculation that President Bush might grant pardons to Jack Abramoff (whom we have never even thought to put on our Pardon Watch List) and Scooter Libby - neither of whom have applied for clemency. When asked to identify "notable" past pardons, Zeilizer came up with three examples, all from the last 30 years (Nixon, Weinberger and Marc Rich). He also suggested that "some people" do not want pardons because "accepting" one amounts to an "admission of guilt." When asked about the thousands of applications pending in the Office of the Pardon Attorney, Prof. Zelizer said their neglect might represent a "fitting end" to an administration which did not seem to coordinate well with its own Department of Justice.

Obama Administration: Holder in the Times

Whatever else you might have heard or read, David Johnston of the New York Times thinks Eric H. Holder Jr. is a candidate for Attorney General in the Obama administration. During the campaign, Mr. Holder seemed to have no interest in the position and explained that family members opposed it as well. There was another problem though. Given his ties to the Marc Rich and FALN pardons (Clinton administration), such talk ran quite contradictory to Obama's enthusiastic albeit ambiguous promise of "change."

But Obama has won and the campaign and all of its rhetoric are ancient history.

Johnston says Holder, a former federal prosecutor, would bring a "heavyweight résumé bursting with legal and law enforcement credentials" to the job. It is also reported that his "views on the law and the role of government align closely with Mr. Obama’s." This is notable because, while he served as deputy attorney general in the Clinton administration, the pardon power all but disappeared from the landscape of the American system of justice - except for an occasional symbolic, partisan or personal splurge here and there. Says Johnston:

Carries as baggage: His role in President Bill Clinton's controversial pardon of Marc Rich, the fugitive financier, who in 1983 fled to Switzerland rather than face tax evasion charges. The pardon bypassed the usual Justice Department process, and so Mr. Holder, as deputy attorney general, had no direct role in it. But when queried about his view of the pardon, Mr. Holder told the White House he was “neutral, leaning towards favorable.” The comment was later seized on by Democrats to defend the pardon and by Republicans to blast Mr. Holder for endorsing the most heavily criticized pardon of Mr. Clinton’s presidency, in part because it turned out that Mr. Rich’s former wife, Denise Rich, donated large amounts of money to Mr. Clinton’s presidential library.

Why the FALN pardons are not mentioned is unclear. Maybe they were just carry-on luggage for Holder. See Times blurb here.

Kentucky: Bishops for Clemency

The Lexington Herald-Leader reports Kentucky's four Catholic bishops (from Louisville, Owensboro, Lexington and Covington) have asked Governor Steve Beshear to commute the death sentence of 36-year old Marco Allen Chapman who is scheduled to die by lethal injection on Nov. 21. Interestingly, the request is said to be "against the inmate's wishes." See story here.

Virginia: Post Calls for Pardon

In an Editorial today, the Washington Post is calling on Virginia Governor Tim Kaine to pardon the Norfolk Four. It reports "four former Virginia attorneys general, from both parties" and two former FBI agents speaking "on behalf of themselves and 28 other retired agents who studied the case" have concluded the convictions were "a tragic mistake." Says the Post:

Every now and again, the criminal justice system breaks down and fails to produce a fair and true judgment. When the appeals process fails to correct this injustice, it falls to the chief executive of a state to step in. In Virginia, there is overwhelming evidence that this is one of those times.

See story here.

President Elect is Getting Pardon Requests!

ABC News is reports U.S. Representative Tom Tancredo is "asking" President-Elect Barack Obama to pardon Ignacio Ramos and Jose Compean, two border patrol agents who were convicted in the 2005 shooting an unarmed drug smuggler and trying to cover up the crime (See our Pardon Watch List). In a letter to Obama, Representative Tancredo says:

"These are the kind of men whose government failed and destroyed them -- all while they were serving a cause greater than themselves. These men deserve justice. I, and many other Members of Congress, have repeatedly called upon President Bush to exercise his power to pardon -- but he has not done so."

U.S. Attorney Johnny Sutton, a personal friend of President Bush, prosecuted the case. He says Compean and Ramos, who will be sentenced later this week, are not "heroes." Hat tip to Professor Berman at the Sentencing Law and Policy blog for drawing our attention to this story. See report here.

Minnesota: Coleman in on the Vennes Party

Recently, we noted a piece in the Minnesota Independent which observed 6th District Congresswoman Michele Bachmann withdrew her support for the clemency application of Frank Vennes Jr., who was sentenced to 5 years in federal prison in 1987 after conviction for money laundering, illegal firearm sales and cocaine distribution. On September 24th, Vennes' home was raided by federal agents in connection with a fraud investigation and Bachmann immediately wrote a letter to the Office of the Pardon Attorney (DOJ) withdrawing her support. The Independent suggested the original letter of support for Vennes’ pardon was "so unusual" because he was not even Bachmann's constituent. He had, however, contributed a total of $27,400 to her since 2005.

Now, the Minnesota Independent reports Norm Coleman added his name to the list of Vennes supporters just two months after his election to the U.S. Senate. Coleman wrote "President George W. Bush c/o Karl Rove” in December of 2002, saying he was “well acquainted" with the case and suggesting additional support for clemency was coming from former Minnesota GOP Chairman Ron Eibensteiner and Governor-Elect Tim Pawlenty. Coleman sent a second letter to the Office of Pardon Attorney in December 2004.

The Independent reports Vennes and his immediate family "have contributed heavily to Norm Coleman’s campaigns directly or indirectly."

Frank Vennes gave Coleman’s campaign committees $2,000 prior to Coleman’s pardon letter. However, he gave $8,000 to the Rally for Leadership Fund, which is controlled by Rep. John Kline, on July 19, 2002. A month later, the Rally for leadership Fund kicked in $168,000 to Coleman’s campaign, and four months later, Senator-elect Coleman wrote his first pardon recommendation letter for Vennes. Vennes also gave $5,000 in 2003 to Coleman’s North Star Leadership PAC, a political action committee controlled by Jeff Larson, Coleman’s Washington, DC, landlord and political consultant. Vennes’ brother, Gregory, gave Coleman $1,000 in 2001.

See story here.

Virginia: FBI Supports Clemency

The Associated Press reports that "several" former FBI special agents are "urging" Governor Timothy Kaine to grant clemency to four former sailors (aka "the Norfolk Four") convicted of a rape-slaying in 1997 because the men were wrongly convicted. Another source says there are a dozen such agents. The sailors, Derek E. Tice, Joseph Dick, Danial Williams and Eric Wilson confessed to participating in an attack on a female in her apartment and three of them (Tice, Dick and Williams) received two life sentences. However, a fifth defendant, Omar Ballard has confessed that he alone committed the crimes and his DNA was the only DNA linking anyone to the crime. It is also reported that this is the "third anniversary of the filing of the defendants' clemency petition with then-Gov. Mark Warner." See story here and here.

Iowa: Pardoned Turkeys

The Chicago Tribune reports an Iowa couple will present a 45-pound turkey to be pardoned by President Bush in honor of the Thanksgiving holiday. It is also reported that the turkey is the sixth, since 1947, to come from Iowa. One wonders how Bush, who has meticulously neglected the use of the pardon power, goes through such exercises without some sort of emotional confusion. Wouldn't it be nice to see President-elect Obama end this senseless turkey-pardoning tradition and use the pardon power for more serious and urgent matters? See story here.

The President: Moscow on Pardons!

Mark H. Teeter of the Moscow Times is waxing eloquent on the pardon power in Russia but feels free to elaborate on clemency here in the States:

Yet the most egregious abuse of the pardon power may already have been committed -- and not by the current president himself, at least technically. In 2006, in a bill to redefine the treatment of detainees, the administration reportedly included a provision that would "pardon President Bush and all the members of his administration of any possible crimes connected with the torture and mistreatment ... all the way back to Sept. 11, 2001." That this bill would render a law at once unprecedented, reprehensible and internationally indefensible was sadly obvious. As CNN's Jack Cafferty summed it up, "At least President Nixon had Gerald Ford to do his dirty work. President Bush is trying to pardon himself."

The bill "reportedly" does this? What a hoot! Don't they know how to read bills over in Moscow? Did they cut funds for research by reporters over there? Cite the bill by name, number and chamber and quote the exact passage word for word, if it is there. Otherwise, with all due respect, shut up. We respectfully recommend readers of the Times, or anyone else interested in delving into the bowels of lunacy to see our post here.

Blog Categories

Campaign 08 is officially over so that category is toast, an archive of fun. In honor of the president-elect, we have added a new category entitled, Obama Administration. President Bush will continue to be followed under the category entitled, The President.

Eric Holder to Return as AG?

Politico.com notes Lanny Davis, a former special counsel in the Clinton White House, says Eric Holder is the "most qualified person in America" for the position of Attorney General in the Obama administration. Why? Says Davis, Holder has a record of "high service at the Justice Department" (as a former U.S. attorney) and is "highly respected on both sides of the aisle for his professional conduct while at the Justice Department." Davis must have not have heard of the whole Marc Rich fugitive pardon thing (see our posts on Holder and the Rich pardon here and here) and that little deal with the terrorists that Clinton also pardoned (see our posts on Holder and the FALN pardons here and here). See the full Politico post here.

Context: Presidents and 4th Year Pardons

The following is list of presidential terms where highest number of pardons was granted in the 4th and final year of the term:

1. George Washington (2nd term)
2. John Adams
3. Thomas Jefferson (1st term)
4. James Madison (1st term)
5. James Madison (2nd term)
6. James Monroe (1st term)
7. Andrew Jackson (2nd term)
8. James Polk
9. James Buchanan
10. Abraham Lincoln (1st term)
11. Ulysses Grant (1st term)
12. Ulysses Grant (2nd term)
13. Chester Arthur (succession term)
14. Grover Cleveland (1st term)
15. Grover Cleveland (2nd term)
16. Benjamin Harrison
17. Theodore Roosevelt (succession term)
18. William H. Taft
19. Woodrow Wilson (1st term)
20. Woodrow Wilson (2nd term)
21. Calvin Coolidge (1st term)
22. Herbert Hoover
23. Frankin D. Roosevelt (2nd term)
24. Dwight Eisenhower (1st term)
25. Dwight Eisenhower (2nd term)
26. Gerald Ford (succession term)
27. Ronald Reagan (2nd term)
28. George H.W. Bush
29. Bill Clinton (2nd term)
30. George W. Bush (1st term)

Statistics for President Bush's second term to date:

Year One: 40 pardons
Year Two: 44 pardons, 1 commutation of sentence
Year Three: 29 pardons, 2 commutations of sentence
Year Four: 15 pardons, 1 commutation of sentence + ?

Watch List: Clarence Aaron

Syndicated columnist Debra J. Saunders is her annual plea for clemency on behalf of Clarence Aaron. In 1992, Aaron "introduced" two drug dealers. The introduction then resulted in a transaction involving 9 kilograms of cocaine. Five more experienced co-conspirators received shorter sentences than Aaron, who was a first time offender. Saunders notes:

There is something rotten to the core in a justice system that puts a twenty something first-time nonviolent offender away for life, while meting out lighter sentences for career criminals who know how to game the system. Life without parole also is the same sentence imposed on FBI-agent-turned-Russian-spy Robert Hanssen, except that it is worse for Aaron, who was sentenced in 1992. Hanssen was arrested at age 56. It turns out Aaron's most heinous offense was not the drug deal, but not having spent years getting arrested and learning how to roll through the criminal justice machine.

Saunders believes "the world is not a safer place with Aaron behind bars." Instead, it is "a poorer territory that throws away people because of a warped sentencing formula that ensnares the unwitting and spits out the truly dangerous." Aaron admits his guilt and has a "clean" prison record.

Interestingly, Saunders also writes:

... critics in the pardon community pretty much have given up on Bush commuting Aaron's sentence. They have put their hope into clemency from President-elect Barack Obama, who has been critical of the draconian federal mandatory minimum sentencing system. They believe that Bush will reserve his pardon power for political operatives, and ignore excessive sentences imposed on the unconnected.

The "proof" of the critics' hunches about the President is, of course, to be found in the fact that the name of Scooter Libby can be found in the pile of Bush's 6 commutations of sentence and 157 pardons! For more background on Aaron's case from PBS, go here.

What to Do in the Final Days?

James G. Wiles has engaged in a "thought experiment" which asks, "What would Rahm Emanuel do if he had Congressman John Boehner's job as House Minority Leader?" Wiles suggests the answer is to "put as many long-range torpedoes into the water aimed at Senator Obama's ship of state before Republicans lose control of the Executive Branch as possible." Among the suggestions:

Appoint U.S. Attorney for the Northern District of Illinois Patrick Fitzpatrick as a special prosecutor so he can pursue his investigation of Tony Rezko and his corrupt dealings with Illinois's governor and other creatures and spoilsmen of the Daley Machine. This will make it politically difficult for a President Obama to pardon Mr. Rezko and impossible for him to terminate Mr. Fitzpatrick as a federal officer come January 21 as a way of de-railing this investigation.

Appoint a special prosecutor to investigate ACORN's voter registration methods and its dealings with the Obama campaign.

File ethics complaints against Sen. Chris Dodd and Congressman Barney Frank for their relationship with Fannie Mae, Freddie Mac and Countrywide Mortgage.

Report: Bush to Pardon Edwin Edwards Soon?

Jeff Crouere of BayouBuzz.com reports "sources close to the Bush White House are reporting this morning that the President is considering commuting the sentence of former Louisiana Governor Edwin Edwards before his term ends on January 20. In fact, a decision may be made in the next few days." The 82-year old Edwards is serving a 10-year sentence, begun in October of 2002. His clemency application is supported by former Louisiana Governor Dave Treen and former U.S. Senators John Breaux and J. Bennett Johnston. See story here.

As the White House is under considerable scrutiny with respect to the possible use of the pardon power in the remaining days of the term, the pardon of a former Democratic governor could be a moderately savvy PR move on the part of the president. Indeed, pardoning several other Democratic officials might take significant wind out of the sails of partisan critics who might not feel so compelled to remind the media and the general public of previous scandals and convictions. See others on our Pardon Watch List here.

Report: Smart on Pardons

Virginia Sloan, President of the Constitution Project, has coordinated an effort to produce a document entitled, "'Smart on Crime: Recommendations for the Next Administration and Congress." Section Nine of the report is entitled, "How to Make Operational and Strategic Use of Executive Clemency." While the introductory portion of this section contains standard misconceptions, the remainder of the section is certainly fascinating reading. For example, one passage reads:

The Justice Department's Office of the Pardon Attorney (OPA) takes many years to process a case and evidently makes few favorable recommendations. The number of clemency applications has increased dramatically in recent years, producing a backlog of over 2,000 requests. Applicants have waited as long as eight years before receiving notice of the president's final decision and only a small percentage of requests are granted. This is a sharp contrast from practice prior to 1980, when grants were made regularly and frequently.

It is certainly true that clemency applications have "increased dramatically" in recent years. But the notion that 1980 somehow represents the closing of the good-old-days for clemency is highly problematic. Here is a chart of pardons granted in the Carter administration. Yes, there is a kind of regularity apparent in the grants of this administration (which was previous to 1980). But it is equally clear that pardons were granted about four or five times a year, and usually on or around the month of December, resulting in the fantastic skew one can see here. In 27 of Carter's 49 months in office zero pardons were granted. Likewise, it very difficult to apply the language "regularly and frequently" to pardons granted in the administrations of Nixon (here) and Nixon/Ford (here). Indeed, it would be more appropriate to use the words, "infrequently and in an obviously lop-sided fashion" (see monthly distribution for both administrations here). But, again, these misconceptions are not new.

In the main body of the section two broad goals are asserted 1) to make the Justice Department's clemency process more "efficient, reliable, and accountable" and 2) to make granting clemency a "strategic priority" for the White House. With respect to the first goal, it is recommended - among other things - that the U.S. Attorney General sign all pardon recommendations to the President, that the Pardon Attorney develop a "strategic plan" for the use of the pardon power to accomplish the President's "criminal justice policy agenda" and that the staff in the Office of the Pardon Attorney be built up. It is also recommended that the President's "pardon policy" and the "standards for favorable consideration" of applications be "made public."

With respect to the second goal, it is recommended that a "senior attorney" in the White House Counsel's office "review and advise the president on pardon matters" on "a regular basis." In addition, "regular opportunities" should be scheduled for the President "to review and act on clemency requests with his counsel."

Finally, this portion of the report recommends specific uses of the power: to correct "particularly harsh sentences," to remedy disparity in the cases of girlfriends/wives, "drug mules," and first-time drug offenders, to give retroactive application to changes in the law, to signal "disapproval" of a particular investigative or prosecutorial practice, to "give effect" to a judge's expression of regret over having been required to impose too harsh a sentence, to send home "seriously ill or elderly prisoners" who can receive adequate care from their families and to strategically to advance criminal justice reforms

PardonPower also finds it notable that the report recommends the following:

Publicize clemency grants to make the public and Congress more comfortable with the use of clemency and to show the "human face" of those serving harsh prison sentences, or laboring under the lingering collateral disabilities of a criminal conviction.

See this commentary from 8 years ago and the report's full commentary on the pardon power here.

Watch List: Pollard on the Table?

The Philadephia Bulletin reports that President George W. Bush has invited Israeli Prime Minister Ehud Olmert to the White House and "Israeli government officials in Jerusalem" are telling the local media that the meeting "is geared to coordinate the release of the Israeli spy, Jonathan Pollard, from prison." Pollard has now been in prison for 22 years following a conviction for spying on behalf of Israel. But the Bulletin also suggests, the Pollard story might "serve as an appropriate distraction for the Israeli public and not on sensitive negotiations with Israel's Arab neighbors." See article here.

The President: The Question of Senator Stevens

The folks at the Washington Post are pondering the future of Alaska Senator Ted Stevens who is said to be "within striking distance of an improbable victory for a seventh term." The 84-year old Republican is currently ahead in the vote count by more than 3,000 votes. But there are also 40,000 absentee ballots to be counted.

The options for the convicted felon? 1) expulsion from the Senate via a two-thirds vote 2) resignation followed by a special election for a replacement 3) retain the seat somehow during the course of a lengthy appeal - Stevens, after all, maintains that he is innocent and finally, according to the Post, 4) obtain a presidential pardon. PardonPower is not sure why mere censure is not considered a possibility by the Post. Yale law professor Steven B. Duke - whose area of expertise is criminal procedure and evidence and, so far as we can tell, has never published anything on the topic of federal executive clemency - explains that presidential pardons are rare, "But this is Ted Stevens. This is not Joe Sixpack. ... this is an extraordinary case."

PardonPower notes the following: First, to the best of our knowledge, no U.S. Senator has ever been the recipient of a presidential pardon. Second, PardonPower is not aware of any political, practical, social or legal reason that would justify such an extraordinary pardon from the President. Stevens is not Mr. Popularity among Republicans. He has no social ties to the President. His case has been no cause celebre. As we have noted before, he is no Scooter Libby. Nor is he even close. Third, even if Stevens is pardoned, he could still be removed from the Senate by a two-thirds vote. That institution can determine its own standards for membership. A pardon would thus be largely irrelevant, or could be made to be so very quickly. Why would Bush grant such a pardon, knowing a Democratic controlled Senate could stuff it right back in his face? That might be a dream scenario for critics of the President, but they would do just as well to expect pardons for Rove, Cheney, Gonzales and everyone else in the administration. Fantasy needs to be separated from reality at some point in political analysis. See the Post story here.

Anyone Can Be King!

The New Yorker once noted that he has "benefited from impeccable timing." In 1996, he was elected to the state senate from a heavily Democratic (and one of the most liberal) districts in the State of Illinois. The victory came after the name of his primary opponent was removed from the ballot for technical reasons. In 2004, he was elected to the United States Senate after his Republican opponent withdrew from the race just a few months before the election. By 2006, he was already considering running for the President of the United States! Enjoying more celebrity style treatment and media adulation than any candidate in history, he successfully tucked away controversial past and present associations (including his own wife and his vice presidential running mate when their words made waves), replaced serious discussion of policy with shallow 'inspirational' style cliches, and saw his victory effectively sealed in the final days of the campaign when the Nation was rocked by financial crisis, a crisis spearheaded by the collapse of Fannie Mae and Freddie Mac - institutions which he and his party consistently shielded from reform and institutions which happened to have donated more than $100,000 to his campaign. And, in January of 2009, Barack Obama will wield a power that some say has been expanded beyond that of the original power wielded by Kings of England - the pardon power.

The Obama Pardons

It is only 11 am here in the Chicagoland area, but who are we kidding anyway? It is time to think about who will be on on the Pardon Watch List once Barack Obama takes the oath of office to be the next President of the United States. Few candidates have brought so much baggage with them in this area. Here are some obvious possibilities:

1. Tony Rezko - Early supporter of Obama in Illinois and enthusiastic fund raiser. Served on Obama's Senate finance committee. Recently convicted on 16 counts of influence peddling. Also faces trial in Chicago for a $10 million in business fraud and in Nevada for unpaid casino-gambling debts. Some unknown spokesman for Obama has said that no pardon will be forthcoming. Obama himself has said nothing and, throughout the rigorous vetting process of the long campaign, not single reporter even bothered to ask.

2. Larry Walsh - Campaigned for Obama in rural and farming areas of the state and became "tight friends" during their tenure in the Illinois Senate, bonding over games of poker. Obama also endorsed Walsh in a county executive election bid. Walsh recently had his offices "raided" by the FBI.

3. ACORN workers - With vote fraud perpetuated by ACORN workers in Wisconsin, Ohio, Washington, Colorado, Missouri and Michigan, an Obama Justice Department - even one headed by the likes of Eric Holder - might have to prosecute someone, somewhere. That is when it might be reasonable to expect the Community Organizer in Chief to extend clemency.

4. Fannie Mae and Freddy Mac execs - It is not likely that an Obama Justice Department will engage in any serious investigation of possible misconduct in the institutions which played a lead role in timely trashing of the economy. Should Republicans somehow force Obama's hand, however, there is the fact that the top three recipients of Mae and Mac campaign contributions over the last ten years are Christopher Dodd (D), Barack Obama (D) and John Kerry (D). Obama's ranking in second place is, of course, downright astounding given his brief tenure in the Senate.

5. Martha Stewart - Democratic candidate supporter extraordinaire (in the manner of Peter Yarrow, pardoned by Jimmy Carter) who has also been a fairly vocal supporter of Obama. Look for a pardon statement which speaks not only of her charitable contributions and community service, but also of questionable guilt and over-zealous prosecution. Expect no chat whatsoever of the notion that accepting the pardon implies guilt - not even from the Washington Post.

6. Jack Johnson - If President Bush does not grant this symbolic pardon, to the dead African-American boxer long ago convicted of violating the Mann Act, Obama just might. John McCain's support for clemency will make the whole episode great PR.

7. Don Siegelman and Richard Scrushy - The former Alabama Governor (Siegelman) has long linked his conviction to partisan animosity in the Bush administration and the machinations of the evil Karl Rove. Obama can grant pardons, encourage Congress to conduct a show "investigation" and then let Don and Dick tell their story.

8. Edwin Edwards - This former two-time Democratic governor of Louisiana was convicted of racketeering and is serving out a 10-year sentence. He is 81-years old and well into the sixth year of the sentence.

9. John Forte - Grammy winning African American recording artist who maintained his innocence in the face of a drug trafficking charge and was smacked with a mandatory sentence of 14 years. Clemency is supported by singer Carly Simon, a long-time Democratic contributor and Obama supporter.

10. William Jefferson - Federal investigators raided the congressional office of this Democratic Representative and a raid on one of his homes uncovered $90,000 in bribe money stashed in a freezer. He was then indicted by a federal grand jury for misusing his congressional office and stripped of his post in the Ways and Means Committee. Jefferson has pleaded innocent, but will not discuss the case publicly.

Some possible carry-overs from the Bush administration:
- Ron Isley (tax evasion)
- Marion Jones (steroids)
- Chibueze Okorie (driver for a heroine ring)
- Michael Vick (conspiracy to operate interstate dogfighting ring)

Campaign 08: Obama to Pardon Rezko?

A Wall Street Journal article here reviews recent event in Chicago, as they relate to a convicted felon and Democratic presidential hopeful Barack Obama. The piece notes Tony Rezko, recently convicted on 16 counts of influence peddling, is "one of the first Obama political boosters." He also faces trial in Chicago for a $10 million in business fraud and in Nevada for unpaid casino-gambling debts. Says the Journal:

The Democratic candidate met the Syrian-born businessman in his final year at Harvard Law School, and they stayed on friendly terms in the next two decades. When Mr. Obama started his run for the state Senate in 1995, Mr. Rezko gave him $2,000 on the first day of the campaign. The Illinois Senator says his political career didn't start in Bill Ayers's living room, but the Rezko wallet certainly launched him on his way. Over the next decade, Mr. Rezko raised as much as $250,000 for him and served on the Obama Senate campaign finance committee in 2004.

A year after his election, Mr. Obama bought his home in Chicago's Kenwood neighborhood with Mr. Rezko's help. At the time, he was the subject of a (then rumored) federal investigation. The men together looked at a house listed at $1.95 million. The seller insisted an adjoining lot must be sold simultaneously, though it was bound by a restrictive covenant that severely limited what the purchaser could do with the lot.

Nevertheless, on the same day that the Obamas offered $1.65 million -- the highest bid on the property -- Mr. Rezko's wife put in for the lot at the listed price of $625,000. (Mrs. Rezko earned $37,000 a year at the time and had assets of $35,000.) In 2006, Mrs. Rezko sold a 10 foot wide strip of her property to Mr. Obama for $112,000 to expand his garden. He paid nearly double the assessed value, but the sale made the Rezko lot less attractive to develop.

As Mr. Obama considered a Presidential run, he gave $159,000 in past donations traceable to Mr. Rezko to charity, and he called the house purchase "boneheaded" and "a mistake in not seeing the potential conflicts of interest or appearances of impropriety." Speaking of Mr. Rezko earlier this year to the Chicago Tribune, Mr. Obama said, "He hadn't asked me for favors." Mr. Rezko hasn't yet told his side of the story. Following his conviction this summer, Mr. Obama said, "This isn't the Tony Rezko I knew." The Senator said the same about the Rev. Jeremiah Wright, after his longtime pastor's "God D--- America" YouTube turn this spring.

Obama has explicitly pledged he wouldn't dismiss Mr. Fitzgerald. But the Journal notes that does not mean that he (Fitzgerald) will not be "promoted" out of Chicago. And, the Journal asks whether or not Obama will "rule out a pardon for Tony Rezko?" See full article here.

Watch List: Support for Cunningham

The San Diego Union-Tribune reports Randy “Duke” Cunningham "wants out of prison early" and that "a few people across the United States have written the federal government to say he deserves that chance." Cunningham is serving out and 8-year and 4-month sentence for conspiracy and tax evasion and the U.S. Justice Department's Office of the Pardon Attorney is said to have released copies of eight supporting letters (with names redacted). It is said that there is also a petition with "nearly 3,000 signatures."

The Union-Tribune also quotes one Charles Shanor, a law professor at Emory University who specializes in employment discrimination and labor law, but who has also "studied presidential pardons." According to the article, Shanor says, historically, less than 5 percent of clemency requests are granted. PardonPower happily gives the benefit of the doubt to Professor Shanor, and assumes the Union-Tribune messed up a quote. Because, "historically," that would not be correct. But Shanor is also reported to have said, "I wouldn't bet on this one. This one is so high-profile, and the criticism would be huge.” Hmmm ... and what to think of Scooter Libby? See story here.

Indiana: Request

The Journal Gazette reports that 48-year old Terry L. Lowery is asking the Indiana Parole Board to recommend clemency on his behalf. Lowery, who is serving a 60-year sentence, was convicted of beating a 13-year old young girl to death in the mid-1980s. But the Gazette reports the Board has a "scant history of granting such requests," and, given the nature of the crime, "it’s unlikely his request will proceed any further than his constitutional right to a hearing." It is also reported that, in 2007, the board heard 114 clemency requests and none were granted. Gov. Mitch Daniels has granted only one request in four years, and that involved a non-violent offender. Complicating the matter, is Lowry's insistence that he was at the scene of the crime, but is completely innocent. See story here.

Arkansas: 10 Pardons, A Notable Rejection

On Friday, Governor Mike Beebe rejected a clemency request of 54-year old Ruth Della Sumlin, who killed a man while helping her husband escape from jail in 1977. Earlier this year, the State's Parole Board voted 3-1 to recommend a commutation of her life-without-parole sentence to 36 years in prison. The application was rejected "without comment." On the other hand, Beebe announced that he intends to grant 10 pardons to individuals who have completed jail time, fulfilled all parole / probationary requirements and paid all fines related to their sentences. 27 clemency additional requests were denied. See story here and here.

Illinois: 26 Pardons

Illinois Govenror Rod Blagojevich has built up a pile of literally thousands of clemency applications, some dating back for years. So, a few weeks ago, a law was passed in the state (over his veto) to allow wrongfully convicted individuals to circumvent the governor in seeking "certificates of innocence." Suddenly, the Governor is interested in this constitutional function of his office. Now, according to the Chicago Tribune, comes 26 pardons, including four for men exonerated of crimes ranging from rape to murder. See story here.

Illinois: Pardons ... Finally!

Chicago Public Radio reports Illinois Governor Rod Blagojevich has finally granted pardons to four men wrongfully convicted. Among the four is Marlon Pendleton, who spent 13 years in prison for a rape he didn't commit. See story here and here.