Happy 4th of July

Outside of Valentine's Day, it has always been my favorite. We are off to beautiful Perdido Key for the weekend and will return on Monday the 7th.

That can only mean one thing: President Bush will dump a handful of pardons while no one in their right mind will be caring what is going on in the news! Pardon "experts" will be found everywhere while I am chasing my kids up and down the sunny beach.

Oh, and there will be 1-year remembrances of the Scooter Libby commutation (which everyone will call a "pardon"). Likewise, all of the people who predicted Libby would, without a doubt, be pardoned and, afterward, came up with grand theories as to why he wasn't will now predict, once again, that he will be pardoned - failed prognostications and theories notwithstanding! If only Bush had employed respites!

Oh well, I guess that is the stuff that makes politics so fun! As always, the following blogs are highly recommended:

* Capital Defense Weekly
* Concurring Opinions
* Pardon for Scooter Libby?
* Sentencing Law and Policy
* WSJ Law Blog

The Future: Pardon Infomercials?

PardonPower notes a blur over at PRWeb.com which features a commercial enterprise known as ClearMYrecord.com. The blurb notes that the folks at ClearMYrecord.com have "announced" that they have "successfully assisted a customer in winning a pardon from President George W. Bush." Furthermore, they say, "the successful effort ultimately took a fraction of the time usually required and cost less than 1% of the average cost for a successful pardon petition." PardonPower is downright exhilarated to know that, somewhere, there are data on the average cost of successful pardon petitions. This should perk the interest of several scholars who have written on pardons over the years, but have never seen, nor heard of such data! Similarly, the blurb notes:

It is commonly thought that the legal effort to mount a successful bid for a Presidential pardon requires the better part of seven years and at least $40,000.

An amazing piece of information indeed. PardonPower is likely to explore just how "common" this thought really is.

Congressional Book Tour Investigation In Progress

The Dallas Morning News reports that Scott McClellan has told Congress that he is "not sure" if any administration officials committed a crime by revealing Valerie Plame's identity to journalists. And the former White House press secretary is "not sure" if there was a cover-up. Perhaps he has just not had enough time to think it over, or he is trying to develop some inside contacts to the highest reaches of power. The cynic might have expected both the thinking and the conclusion before the printing of McClellan's new book.

But, after hundreds of pages of writing, McClellan is certain that he was very "disappointed" at the president's decision to commute the prison sentence portion of Libby's sentence for obstruction of justice. It is also reported that McClellan will be even more disappointed if Libby ends up with an outright pardon, "because the Bush he knew as governor and president always insisted on two things for a pardon: repayment to society and expression of remorse." Says McClellan, "We have seen neither of that from Scooter Libby."

God help the President if a federal prisoner is proven innocent by DNA. McClellan will be out there demanding "repayment to society and expression of remorse!" Notably, the self-righteous tizzy features not the slightest amount of disappointment that so much time, energy, effort and money went into an investigation where there may or may not have been a cover up, or even a crime. Nor is there any expression of remorse that Richard Armitage, the original leaker, was in no way punished for his behavior. Scotty, Scott, Scotty.

PardonPower is shocked and dismayed with Mr. McClellan, and deeply disturbed that the glass casing on his disappointment radar screen is so fogged-up. See story here.

Comment: The Court's Clemency Caper

Everyone has their angle on what is wrong with the pardon power and what can be done about it. Here is where PardonPower stands:

The president's power to pardon is, in large part, a giant mess, because of the United States Supreme Court. The blundering began one hundred and seventy-five years ago, in a very quirky case (good start!), where an individual facing a possible death sentence refused to include, as evidence, a grant of clemency that he received from President Andrew Jackson (in a separate but related proceeding). In his analysis of the pardon power, Chief Justice John Marshall (among the most extreme wing of the Federalist gang) argued that the president's power to grant pardons should be interpreted in light of the practices of the Kings of England. To this day, most Supreme Court opinions have followed this premise and, on occasion, have sprinkled in two additional ideas (both of which are false): that the Framers of the Constitution carefully considered the inclusion of this power and that the Kings of England were not restricted in their use of it.

Marshall's opinion hardly shocked the Nation. Most Americans were busy doing other things and the Supreme Court was easy enough to ignore back then. Why, had he been alive, Alexander Hamilton may have applauded the decision, or announced a new tax in its honor. After all, Hamilton was the one who stood up at the Constitutional Convention and gave a speech, lasting several hours, which called for a king in America. Of course, it was those sort of ideas that made Hamilton wildly popular with the masses and earned him a solid shooting from Mr. Burr.

The more logical thing ruling for the Court - given the clear trends in the colonies, the Articles of Confederation and trends in the states - would have been to asset that the president's pardon power had to be interpreted in light of our written Constitution (something England does not have to this day and, thus, no King ever had to deal with). After all, he is a president, not a King. The Court should have asserted that the pardon power had to be assessed in light of our system of checks and balances and separation of powers. Likewise, it should have ruled that the power had to be utilized in consideration of the Bill of Rights. Would the Constitution have ever been ratified to begin with had it been asserted at the state conventions that the president could violate the Bill of Rights at will with the pardon power? Of course not.

What did the Kings of England do with the pardon power? They abused it like crazy. They pardoned on the condition that prisoners serve in the military or go to the colonies and assist in population growth. They sold pardons in order to beef up the treasury. They used clemency to extort money from the rich and to celebrate their own birthdays. One King sold pardons and split the money with his mistresses. This was the "intent" of the Framers was it? I suspect not. "Yes," one could say, "but in our system, we can impeach a president who uses the power in such an abusive manner." Sure you can, unless they do pardon stunts at the end of the term, while Congress is running for re-election and busy jockeying for positions and status in the oncoming administration. Not much of a check there.

In this article, we see a government granting pardons to 2.8 million people to mark President Lee Myung-bak's 100th day in office. What a dumb way to do things! And yet that is just about where the 1833 ruling of the Supreme Court in U.S. v. Wilson has placed the bar for American presidents. It is no wonder that they have granted the most "controversial" pardons, over and over and over, without serious concern. And no one has done anything about it, except threaten, or purt on show-investigations and point partisan fingers in hopes of short-term PR victories. On the other hand, here is a passage from a dissent, in a more recent Supreme Court case (Schick v. Reed, 1974) which uses the kind of logic we need in majority opinions:

While the clemency function of the Executive in the federal criminal justice system is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature ... the primary resource for analyzing the scope of Article II is our own republican system of government. The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, but views his functions as distinct from the other coordinate branches ... Indeed, history recounts that even the pardon power of the King to "annex [a condition] to his bounty" was subject to statutory limitation. The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.... The great discretion available to the King to dispense mercy did not incorporate into the pardoning power the royal right to invade the legislative province of assessing punishments.

Comment: "I promise not to pardon ..."

The Chicago Sun-Times recently got a charge out of reporting that presidential candidate Barack Obama had promised not to pardon or grant even a commutation of sentence for his friend, the recently convicted Tony Rezko. As it turned out, Mr. Obama made no such promise. The story was based on commentary by an Obama spokesman. See story here. Here are some reasons, however, why I think Obama should never make such a promise, and no candidate, or president ever should:

1. Say Rezko is in prison and doctors certify that he is on his death bed, less than twenty-four hours to live. If Obama makes such a promise, and intends to keep it, then Rezko might die in prison. Clearly many people would think that would be just fine. People die in prison all of the time. They would argue that a death-bed is no excuse for anyone being let out of prison. And that is fine. But many a president has felt differently. How does Obama feel about it?

2. Rezko was convicted. But what if, at a later date, some evidence develops which shows he is actually innocent? Not going to happen? No way? Impossible? Stranger things have happened dear readers. Do you keep an innocent man in prison because of such a promise?

3. Rezko will be sentenced on the basis of 16 counts. What if, at some later date, it is shown that he was innocent of a couple, or even one of the counts? What if substantial doubt emerges with respect to a count here and there because of new evidence, a confession, etc.? Should Obama insist that Rezko serve the original sentence, no matter what, because he made a stupid promise to a reporter?

4. Let's say Rezko goes to prison and repents. Everyone whose opinion matters believes he is sorry for what he did. He joins self-help groups and lead religious meetings. He assists others. He seems to rehabilitate. It is right to take the position that somehow he is exempt from this sort of transformation? Are his crimes really the very worst ever committed? Rehabilitation is a classic goal of sentencing. What if the goal appears to be accomplished in his case, again, from the standpoint of the persons who make such judgments? Should Obama ignore it as though it did not (or could not) happen?

5. Say Rezko decides to become the government's key guy, revealing all sorts of crime and corruption beyond his case. Clemency is routinely offered up as a kind plea bargain tool in such scenarios. Prosecutors say, "You give us the goods. If there are convictions, we will support your bid for clemency." They cannot promise clemency, of course, but a judge might also be impressed by such cooperation. So, you are President Obama. Rezko has served a portion of his sentence. He is cooperating with the Department of Justice and convictions are falling from the sky. The prosecutors and the sentencing judge recommend some form of clemency - not necessarily a full pardon, but a reduction of a year or two. Do you blow them all off because of your promise? Do you refuse to reward the cooperation?

6. If an imprisoned Rezko has the sense that a President Obama will never, in any circumstance, pardon him or grant a commutation of sentence, then he (Rezko) will certainly have no incentive to ever cooperate with the government on any other count.

On a final note, as I wrote number 5, I wondered when the conspiracy theorists are going to emerge with the obvious ... (imagine creepy music here) ... "the Bush administration will wait until October. Then surrogates of the President in the Justice Department will approach the imprisoned Rezko and offer a clemency deal. But they will do so in a subtle way so that Rezko will not be able to spot it and reject it loudly. Clemency will be offered in exchange for information which implicates presidential candidate Obama. The validity of the information will not be so important. The desire will simply be to fill news headlines with words like subpoena, grand jury, investigation, criminal investigation, possible indictments, etc., right before the election ... kinda like the way Mr. Walsh indicted Casper Weinberger the Friday before the 1992 election (end creepy music).

Oh boy, I can see the Huffington Post whirling that one around!

Comment: Daily Hearld and the Limits of Limited Intelligence

Today, the Daily Herald wonders "whether the presidential power to pardon and commute sentences should be somehow limited -- whether the pardon power itself has become a source for cynicism about our government." It is indeed, one of those classic questions that everyone ignores for the first 3/4 of an administration, or until the aftermath of a particular pardon they do not like. The Daily Herald has already come out against the possible (although not particularly likely) commutation of former Governor George Ryan's sentence. Such would be, in the words of the Hearld "unthinkable." Why consider limiting the pardon power now? The Herald says there is a "growing recent history" that "suggests" that it should "at least be debated and considered."

But, if anything is certain, it is that that the Herald's levels of knowledge are unthinkably low and its pitiful memory banks are only "recent." Were the lenses more wide, the Herald would discover "unthinkable" pardons are a great American tradition, stretching back to the administration of George Washington. Where Alexander Hamilton clearly saw opportunities to get tough with public hangings (none of the 76 month sentence stuff) and to send the right "message" to lawbreakers and all that, George Washington saw opportunities for mercy ... at the last minute, right before he left office.

But the Herald complains that "in the recent era," the pardon power has "been used to aid political friends and supporters." Which is so true if you are not familiar with the way Thomas Jefferson pardoned the editors of the newspapers that supported him. And "the recent era" is great to beat up on if you have no clue what the Whiskey Ring was all about. Here is your clue Daily Herald: the pardon power was used that way in England for centuries and American presidents simply picked up the ball from there and ran with it accordingly, from the get-go.

The Herald notes the pardon power is "subject to abuses that undermine our rule of law." This would, of course, be true of any other power, in any other branch of government and hardly constitutes a reason for limitation. But some limitations are considered:

A widely suggested modification of that power would be for pardon applications to be reviewed by an advisory commission, which would deliberate publicly ... Just the other day, the liberal political blog Daily Kos itemized several options in a viewer poll. Among them: giving Congress power with a two-thirds vote to revoke a pardon; prohibiting pardons for anyone holding a public trust; and requiring pardons to be approved by a special committee made up of members of all three branches of government.

Public deliberation of clemency applications. What an awesome idea. Imagine all of the support there would be out there for convicted felons! And maybe we should allow the victims of crimes to testify too. Imagine all of the politicians lining up to support them! Imagine how immune such public spectables would be from "politics." Imagine the praise that would be heaped on the commission as it made its many, many favorable recommendations! How about this Herald: just remove the pardon power altogether or let the American public vote on pardon applications American Idol style?

Congress? A check on the pardon power? The Daily Herald clearly has no clue how closely tied Congress is to the pardon power and how much Congress contributes to its abuse. Here is your free education Daily Herald. Yeah, if Congress were 90 percent Republican, that would sure put a halt to any Republican abuse of the pardon power. Duh! See Daily Herald disaster here.

Comment: Land of Lincoln Not High on Ryan Pardon

John Kass has graced the Chicago Tribune with an editorial that is hard to beat for sheer over- the-top hyperbole. He writes that former Governor George Ryan "got more than a fair trial," indeed he got a trial that was "more fair than any defendant" Kass has ever seen (no sample size is reported). Kass also complains that Ryan deserved more that the six and a half year prison sentence that he got - which, the cynic might note, seems to suggest some aspect of the case wasn't so fair after all. Says Kass:

So if Bush pardons Ryan, Illinois taxpayers can ask only that the former governor's arms be sewn shut, in a circle, draped over Bush's neck and fixed there, the hulk and weight of Ryan's bulk to hang against the president for years.

Not likely, Mr. Kass. Political memory will die just as fast as it always has. You can bet on it. Why, Ryan was a rosey cheeked choir boy compared to Richard Leche. But who has every heard of Richard Leche? Need we even ask who pardoned him? Of course not. Marvin Mandel. Who? J. Fife Symington? Zzzzz. No need to get too upset about all of this.

Kass notes President Bush "commuted the sentence" (meaning "commuted the prison sentence") of Scooter Libby who was convicted during the investigation of the outing of a CIA officer (meaning "an investigation which resulted in no one being charged, much less convicted, for having committed an underlying crime") for political reasons by the Bush White House" (meaning "outed by Richard Armitage, a critic of the War in Iraq"). In Kass' view, "To do the same for Ryan would not only be amazingly cynical and coercive, but it would destroy what little remains of the Illinois GOP."

I am guessing - given the very odd construction of the Scooter Libby case - preserving what little remains of the Illinois GOP is not a very high priority for Kass. But the notion that pardoning Ryan would have a significant impact on Illinois politics is fanciful and clearly wishful thinking. The State GOP has been in terrific disarray for some time now and the candidacy of Barack Obama overshadows anything and everything related to George Ryan. A Ryan pardon (or commutation) will be in and out of the pages of the Tribune in a matter of days, maybe even less than a week. The pardon of Dan Rostenkowski - Oh yeah, remember him? And what was he charged with? - hardly put a dent in the pages of the newspapers of Illinois.

In addition, Kass' ultimate dream neglects the fact that the current Governor (Blagojevich, a Democrat) is his own can of worms. The citizens of Illinois are not discussing recall because the Democrats are standing on the corpse of the Republicans. When all is said and done, Blagojevich's pardons might very well get as much attention as a George Ryan pardon. And Blagojevich's non-use of the pardon power has already gotten (and will continue to get) attention from the federal court system.

Buying into the melodrama, former state Sen. Steven Rauschenberger (R) says an act of clemency on behalf of George Ryan would "remind everybody about the drawn-out trial, the whole process to rid Illinois of that kind of pay-to-play politics." For that reason, he also says:

"I would ask that President Bush not consider a pardon or commutation of sentence for Gov. Ryan. As a state, we've been through enough. As a party, we've been through enough."

One wonders how Abraham Lincoln might have responded to such commentary. No pardon for Ryan because the State Party has been through enough. Wow. Now that is a compelling justification. See the Kass editorial here.

Comment: Ministers, Theologians and Pardons

Today, the Jamaica Gleaner features an editorial on pardons and mercy written by the Public Theology Forum, an ecumenical group of ministers of religion and theologians. In part, it reads:

It's a truism that the quality of the justice of a society can be judged by how it treats its most vulnerable. In a similar vein, we can perhaps argue that the quality of the mercy of a society is to be judged by how it treats those who do wrong, especially serious wrong.

... In Luke's account of the crucifixion of Jesus, among the words spoken by Jesus from the cross were "Father, forgive them for they do not know what they are doing." In so doing, he asked pardon for those that had handed him over, those who had sentenced him and those that had participated in his crucifixion.

... As things now stand, we tend to reduce the notion of forgiveness to a personal private matter between individuals. Furthermore, forgiveness is dismissed as an activity for weak people, i.e., those who don't have the power to get even or take revenge. (It is a spectacle to behold conflict between children where one threatens the other to bring an older sibling or parent to fight his opponent who has bested or dissed him in some way. So we could point out that an unforgiving spirit may be the last refuge of a cowardly person.) Forgiveness, therefore, is seen to be unrelated to larger social issues or public matters that resonate on the lives of many persons. As individuals we often relish being in position to pass judgement on others.

... A key dimension of forgiveness that is often forgotten is that to forgive does not remove the need for punishment and recompense.

... Forgiveness requires and is tied to notions of repentance and reconciliation. In our justice system, there needs to be a deepened emphasis on rehabilitation and restorative justice that goes beyond simply the paying of penalties for wrong done.

...This does not mean that we should demur in our duty to establish the rule of law and seek justice. It does mean that since we know that the miscarriage of justice is a distinct possibility we avoid the rush to judgement and open ourselves to offer the opportunity for renewal.

The other danger is the danger of using one human being as a means to the end of deterring other human beings. When human beings become simply means to an end, it only serves to devalue human beings. The intention cannot simply be that we make a very public example of this person to deter others. Experience alone teaches us that this simply does not work; it might satisfy many who are out for blood, but it does not work! Rather, the good of the person who has done wrong must also be sought and the administration of punishment fitting the crime should have the intent to rehabilitate and reconcile.

... The problem is that all of us at one time or another finds ourselves doing what we know to be wrong. If the axe of judgement is laid at the root then none will stand. They will be none to recover and renew and offer or receive the offer of a second chance. Pardon is a better teacher than punishment.

See full editorial here>.

Comment: The President, Crime and Law Enforcement

In a post entitled "Law Enforcement and the Next President" over at Crime and Consequences, Michael Rushford notes, "It has been quite a while since crime and law enforcement were considered issues important enough to merit the attention of Presidential candidates" - this despite the fact that a poll shows crime is considered a very serious problem by 57 percent of the American public. Rushford also notes that our criminal justice policy is "at a tipping point" as a result of "overcrowded, poorly maintained prisons" and lack of financial resources. He then says, "While most crime fighting is done at the state level, the President can have a powerful influence on how local politicians address the issue." How so? After brief attention to "three strikes" laws, attitudes about the death penalty and strategies in judicial appointments, Rushford submits:

There are very important law enforcement decisions a President makes beyond supporting policies and appointing judges. The Attorney General, who heads the entire U. S. Department of Justice, is appointed by the President, as are the 93 United States Attorneys across the country. Bank robbers, interstate drug traffickers, and criminals who smuggle contraband across our borders are prosecuted by these people. The President also appoints the Secretary of State and determines how our country deals with nations that produce illegal drugs or are safe havens for drug cartels and criminals who traffic in illegal firearms, women, and children; pornography; internet fraud; and identity theft. The performance of these agencies can either invite or discourage crime in America. The fundamental responsibility of our government is to assure the safety of its citizens . . . to protect us from threats, be they foreign or domestic. It would be a tragic mistake to elect a President who did not take this responsibility seriously.

While it is difficult to disagree with any of this, the above list of concerns is quite notable for the indirect nature of their relationship to the president. On the other hand, the recitation oddly omits the single most obvious, explicit and direct intersection of presidential power, crime and law enforcement in the U.S. Constitution: the pardon power (See Article II, Section 2). What would really be a tragic mistake is if we elected still yet another president who did not seem to take the pardon power seriously.

Comment: Defending FALN Pardons?!

In an editorial piece in today's Los Angles Times entitled, "The Times' Joe McCarthy," Karin Pally (don't even ask me!) attempts to take Jonah Goldberg to task for a number of things. I noticed that, in the process, she had this to say:

Goldberg then moves on to the Clintons, claiming that Bill Clinton pardoned Puerto Rican "separatist terrorists" and that this action was "perceived" as a way to gain votes for Hillary Clinton's Senate campaign. Who were these terrorists and what did they do? The prisoners were members of the Armed Forces of National Liberation. None of these prisoners had been convicted of bombings or violent offenses, and all had served 14 years or longer in prison, longer than the time usually served for such crimes. No one from the FALN was pardoned. Instead, 16 prisoners had their sentences commuted. In contrast, President Bush commuted I. Lewis "Scooter" Libby's sentence before he had served a single day.

Those familiar with the FALN pardons recognize most of the above as nothing more than a re-hash of President Clinton's own public defense for his exceptionally poor decision making. But it is fun, nonetheless to consider the manner in which the author implodes and circumvents critical information to make her case.

Goldberg, for example, is quite correct to note that President Clinton exercised the pardon power on behalf of the FALN terrorists. A commutation of sentence is but one form of what we commonly refer to as "the pardon power." There are several others. If, on the other hand, Ms. Pally desires to wax highly technical (for the sake of looking more expert, accurate or truthful), then she should recognize that President Clinton did not commute the sentences. It is more accurate (and truthful) to say that the prisoners accepted a conditional commutation of sentence.

Pally sheepishly asks, Who were these people? What did they do? I think perhaps the Department of Justice and the federal judiciary answered that question best when the group was convicted of - among other things - possession of unregistered firearms, conspiracy to obstruct interstate commerce by robbery, interference with interstate commerce by violence and threats of violence, conspiracy to make destructive devices, unlawful storage of explosives, conspiracy to transport explosives with intent to kill and injure people, and conspiracy to destroy government buildings and property.

But Pally seems satisfied that none of these charges and convictions warrant our concern because, in her mind, they were not "violent offenses" ... you know, the types of offenses that were never ever formally, officially, legally attached to Al Capone either.

It is no wonder that a different opinion of the matter was held by the U.S. pardon attorney, the Federal Bureau of Investigation, the Bureau of Prisons, the police commissioner of New York and United States attorneys in Illinois and Connecticut, Chicago’s Democratic Mayor Richard Daley, Sen. Patrick Leahy (the ranking Democrat on the Senate Judiciary Committee) Sen. Joseph R. Biden, Sen. Daniel Patrick Moynihan and Charles E. Schumer. But perhaps they were all unduly influenced by a Newsweek report that the Bureau of Prisons (which rarely gets involved in clemency decisions) had audio tapes of some of the prisoners saying that they would employ violence once again if they were released.

Let us not forget that, on September 9, 1999, the House of Representatives voted 311 to 41 to condemn the President’s FALN clemency and, five days later, the Senate voted 95 to 2 on a similar resolution calling Clinton’s use of the pardoning power “deplorable.” Congress also subpoenaed Clinton to turn over all records relating to the F.A.L.N. decision, but the President refused to comply with the request on the ground of “executive privilege.” And with good reason! Hillary's campaign might still be cleaning up after the mess today!

See the full L.A. Times editorial here.

Comment: Library Scandal and the Pardon Power

Today's Washington Post notes that the President, when asked whether he would disclose the identities of donors to his library, said, "We'll look at the disclosure requirements and make a decision." He also noted that "some people . . . like to give and don't particularly want their names disclosed, whether it be for this foundation or any other foundation. And so we'll take that into consideration." The Post considers this the "wrong" answer. Why? Because:

It was an outrage when Mr. Bush's predecessor, President Bill Clinton, collected millions of dollars in secret money for his library while in office. Just how outrageous became clear as Mr. Clinton left the presidency, when he granted a pardon to fugitive financier Marc Rich; Mr. Rich's ex-wife had given $450,000 to the Clinton library.

Yes, eight years later, the Post is still obsessing over the Marc Rich pardon. But, really, how much of an "outrage" could it really be? Why, Mrs. Clinton is running for the presidency today and her husband is campaigning vigorously on her behalf right now. Have either one of them ever been asked about the Marc Rich pardon? While Mrs. Clinton has attached herself to the successes of her husband's administration, has anyone ever asked her about the numerous pardon scandals in that administration and her opinion of them? Must our memory be so sloppy, so selective and so skewed?

Why doesn't the Post consider it an "outrage" that Mrs. Clinton's brother collected large fees for pardons? Why doesn't the Post consider the FALN pardons (and Mrs. Clinton's reaction to them) an outrage? Does anyone remember Mrs. Clinton's involvement with the pardon of the Hasidic Jews in the community in New York?

Kalmen Stern, David Goldstein, Benjamin Berger and Jacob Elbaum bilked $40 million worth of student Pell grants and loans from government sources for a phony school in the Hasidic community of New Square. Clinton said that although she attended a White House meeting in which the pardon issue was raised, "I never made any view known." She met with community leaders earlier. She attended the meeting where the pardon was discussed. But she said nothing. Talk about an "outrage!"

Meanwhile, while the watchdog press sleeps, Mrs. Clinton will continue to complain that she is not competing on a level playing field and that it is really tough for her, because she is a woman, and the Obama has it easy. See Post editorial here.

Comment: William F. Buckley, Jr. (1925-2008)

I want to extend my sympathy to family and friends of William F. Buckley, Jr., who passed away this morning. I also want to extend the same to the fine folks over at National Review, who were very generous to me in the past year by providing a platform for my research and insights on the pardon power.

I first started reading Mr. Buckley's editorials in middle school and was a full-fledged addict by the time high school came around. Granted, I did not understand a fair amount of what I was reading. What really caught my attention, and sparked the interest in politics which led me all the way to a Ph.D., was Buckley's debate show Firing Line. To this day, I insist that those programs were the very height of television broadcasting. When Buckley and Ira Glasser (ACLU) went at each other, you always knew you were going to see something special. I continue to buy recordings of Firing Line debates as I can afford them - order here. My sister and I had the pleasure of seeing Mr. Buckley speak in Pensacola, Florida, on "The Hyperbolic Imperative in American Politics." He wittily asked, "If these people are not making a 'living wage,' then why aren't they all dead?" After the speech, I approached him for an autograph. With 500-600 people in the room, he would have been well justified to say "no." But he gave it to me anyway. To this day I look forward to seeing National Review in my mailbox. Buckley was a priceless treasure to both the conservative movement and the Nation.

This past year, I communicated with David Frum and Jean Lopez at National Review Online concerning what I saw as a lack of proper focus in the national media on the President's options regarding Scooter Libby. As I saw it, there were numerous ways that Bush could utilize the pardon power to keep Libby out of prison short of granting a full, unconditional pardon. NR Online allowed me to write a piece on one of them (the respite), then placed individuals on various television programs (Hardball, the Situation Room and Meet the Press) who spread the news - albeit in the face of resistant hosts who were much more attracted to the fabricated drama of a pardon / no pardon scenario.

Of course, the President utilized the pardon power to keep Libby out of prison, but it was not the particular option which I had focused on. Incidentally, to this day, I insist that the President should have done things my way. But that is another story. As if the first appearance were not enough glory for one career, NR Online let me to write a second piece, which allowed me to place the Libby commutation in historical context. It was such a pleasure to show off years and years of research in such a fun, respected, widely-read forum. I will be forever grateful.

So, rest in peace William F. Buckley, Jr. and thank you for all that you shared with us. Thank you National Review for carrying on his work. It is a sad day for us all, but also a day to be thankful that we saw him, listened to him, read his words and enjoyed his intelligence and wit. We are all so very fortunate to have had these opportunities.

P.S. Ruckman, Jr.

Comment: The Times and the Pardon Power

I thought I would express some thoughts with regard to yesterday's New York Times editorial on the Bush administration and the pardon power. In the interest of full disclosure, I will say that the author, George Lardner, Jr. and I are in something like a contest to be the first to publish a book on the history of the pardon power. As I understand things, he is still writing, but already has a publisher. I have finished writing (and have received very positive reviews), but do not yet have a publisher. This all stands to reason as, while I certainly have my credentials and accomplishments, I am very "small fry" in comparison with Mr. Lardner. That all being said ...

I have never been one to make statements about how many pardons this or that president "should have" granted or "should be" granting. It seems more appropriate for me, as a political scientist, to think of clemency applications as individual affairs. I really have no idea how many legitimate, strong, complete, timely, uncontested, worthy applications there are in the Office of the Pardon Attorney in any given year. So, I have no comment on how they should generally be disposed of either. And I have no reason (theoretical, or otherwise) to argue that last year's trends in grants should be in any way related to this year's trends.

Lardner's editorial says that it was "widely speculated that [Bush] would hand out a big bunch of pardons before bowing out." But I know of no such speculation, certainly not by anyone of particular note. Are some contemplating a full, unconditional pardon for Scooter Libby? Sure. But that hardly constitutes a "big bunch" of pardons.

If anything, there has only been a slow, painful, growing recognition / acceptance of the fact that most of our Nation's presidents have increased clemency activity in the last year of their term - a fact that I have almost single-handedly brought to the fore - and with considerable effort (see my professional paper on the topic here). President Bush, incidentally, has steadily increased clemency activity across his own term (see chart here), albeit not as dramatically as Mr. Lardner would appear to desire.

Lardner seems to be aggrieved by the large number of petition denials and the "huge backlog" of clemency petitions in the "bureaucratic mill." He quotes former U.S. Pardon Attorney Margaret Colgate Love (1991 to 1997) as saying "it is hard to run an operation when you genuinely feel that what you are doing doesn't mean anything to anybody."

But, what I find interesting is the fact that the sharp upward trend in denials and pending applications began during Ms. Love's term as the Pardon Attorney. Why didn't Mr. Lardner bother to ask Ms. Love - while he was chatting with her - what was going on during her tenure, instead of simply beating up on the recently resigned Pardon Attorney (Roger Adams)? Well, I did what Lardner did not do. I asked Ms. Love about all of these issues myself, way back in August of 2007. Her very interesting explanation can be found here.

Lardner observes President Bush was "somewhat more generous" with pardons this past December. I guess I do not know for sure, but it does appear that he is not familiar with monthly trends in clemency in this administration and the last several administrations (see my commentary and relevant data here).

Finally, Lardner bemoans Bush's general stinginess with clemency in comparison with previous presidents - an option readily available to most journalists since the administration of Woodrow Wilson in the early 1900s (see chart here). I can only repeat what I have said elsewhere (here to be exact): there has never been a single reason in the world for anyone anywhere to think George W. Bush would be anything but extremely stingy with pardons. His administration came on the heels of a first-class clemency controversy (Clinton). Bush is a Republican and a former governor. As a governor, he set records for stinginess with pardons and knew what it was like to experience sharp criticism for use of the clemency power. And, as noted above, he is also riding the momentum of a trend that is 90 to 100 years in the making.

Bush may or may not grant a "big bunch" of pardons before he leaves. But, if he does, he certainly wouldn't be the first President to do so. That would be George Washington. And, if he (Bush) does grant a few, just how many would constitute a "bunch" will be entirely debatable. The only thing that seems clear to me is that Bush is in something like a no-win situation with his critics. And the expectations and calls for reform of the clemency process have been much greater during his administration than they ever were during the administration of Bill Clinton. In my mind, that says something in and of itself.