DOJ Ditches FOIA for Obama Finale

For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max. Here is the history of a request William N. Taylor II "Executive Officer, Office of the Pardon Attorney" killed after 784 days.

December 17, 2014 - FOIA request filed.

April 10, 2015 - the records you request will “require a significant amount of time” to search, scan and redact.

July 20, 2015 - your requests have been assigned to “the complex track” and will “necessarily take longer” to be addressed.

Dec. 12, 2016 - "... those data points are captured in our electronic case management system. However, they are not easily exported out ... it would literally require a staff employee to manually open each electronic case file to copy and paste that information from the case file to a spreadsheet ... ... we do not have the funding or the manpower to accommodate such a request at this time.

... it would require some discussion with all of the stakeholders involved in the executive clemency process to see if they all would approve of having that information public even if we (OPA) could afford to take the project on.

Feb. 8, 2017 -  After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5), which concerns attorney work product protected by the deliberative process privilege.

Thus, William N. Taylor II covers the tracks of the greatest fourth year clemency surge in history, overturning 15 plus years of past practice in his own office, in Republican and Democratic administrations.

Time to Shut OPA Down.

Info Now Banned by DOJ / OPA

For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max.

Then, William N. Taylor II "Executive Officer" of OPA simply stopped responding to our FOIA requests. He then stopped acknowledging that they were being received at all. Consequently, we have waited - quite literally, for years - for any indication whatsoever that his Office is of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) recommended that we simply wait until the Obama administration was over.

Info Now Banned by DOJ / OPA

Of course, by the time he left office, President Obama set a record for commutations of sentence and engaged in the largest 4th year clemency surge in American history. Media reports suggested clemency officials were working well into the night, over the weekends and during holidays, trying to bust their way through thousands of applications. Nameless, faceless bureaucrats in the administration that promised greater transparency, and greater cooperation with FOIA requests in particular, simply shut the doors, at the worst possible time. Because they could.

This evening (February 8, 2017), we sent an e-mail to OPA, politely inquiring whether or not it intends to knowledge / fulfill FOIA requests this year (2017)? Within minutes, mere minutes (!), six of our FOIA requests (189, 250, 279, 309, 680 and 784 days old) were given e-mail responses. A Christmas miracle! And they were all given - for the first time ever - a "full denial." The Executive Officer explained:

... After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure ... 

The Executive Officer of OPA does not know if data exists in his own office any more? Who knows what other critical data they lose, or do not know they have? Causally recognizing its god-awful work in recent years, the OPA says:

We expect that our FOIA and Privacy Act response times will increase quite drastically during the spring of 2017.

Indeed. Looks like that Office will be "going through" FOIA requests, in 2017, like it did commutation applications in 2016. No easier way to cut through a backlog of requests than flippant summary denials. We are "appealing" the request, but, well, you know ...

Sentence Commuted, Re-Arrested.

The San Antonio Express reports that 68-year old Robert M. Gill, whose life sentence for "cocaine and heroin distribution conspiracy" was commuted by Obama to expire in 2015,

... contacted an unidentified person, via telephone, to arrange a deal to buy a kilo of cocaine, according to the affidavit. At about 5:30 p.m., Gill met with that person in the parking lot of Fiesta Food Mart at 6050 Ingram Road and received a black backpack that he put in the car he was driving, the affidavit said. As he left the parking lot on Ingram Road, a Bexar County sheriff’s deputy in a marked patrol car tried to pull him over. Gill, the affidavit said, fled at high speed and the car he was in collided with the vehicle of another motorist at the intersection of Callaghan and Bandera. He again tried to flee, but his vehicle was disabled by cars of other law enforcement officers, according to the affidavit. Agents found the backpack in the car, which contained a kilo of cocaine, the affidavit said. He “related that he was going to sell the cocaine to make money and would be paying a female $26,000 for the cocaine,” the affidavit said.

The Express reports Gill (a Vietnam Veteran) had served 25 years for his previous convictions and is, once again, facing the potential of a mandatory minimum sentence of 5 years and could see up to 40. Gill thought his original sentence "wasn't fair" and he counted on "people in government with rational minds" to realize it was a matter of "injustice."  Obama wrote that he granted Gill’s application because he had "demonstrated the potential" to "turn" his life "around."

See full story here.

Deputy Attorney General Sally Yates ...

... has been fired by Donald Trump, after she expressed her view of the constitutionality of his executive order on immigration.

We only wish Yates had had the courage / conviction to speak out when former Attorney General Loretta Lynch stupidly suggested presidents do not have the power to grant amnesties / general pardons.

Yates was mute.

So, we say, "Good bye. Good riddance."

Meanwhile, in 1938 ...

William H. Malone, former Chairman of the Illinois Tax Commission who has been sentenced to two years in prison for Income Tax fraud, flew to Washington today to appeal personally to President Roosevelt for a pardon.

Upon arrival at the airport, Malone stated that he felt confident that, when President Roosevelt knew all of the facts in the case, "he would not tolerate what they are planning to do with me," 5/9/38

Hollywood Reporter: #AlternateFacts

Hollywood Reporter says, "Tinseltown's closest brush with a presidential pardon came in January 2001 with commodities trader Marc Rich, who once owned 20th Century Fox with Marvin Davis."

Hollywood's closest brush with a presidential pardon came in January 2001 with commodities trader Marc Rich, who once owned 20th Century Fox with Marvin Davis. In 1981, the pair paid $722 million for the studio, with Rich acting as a silent partner and Davis having voting control. All went relatively well for two years until Rich was indicted for back taxes, wire fraud and a baroque illegal oil scheme with Iran.

Really interesting, but wrong.

See Joseph Schenck (creator of Twentieth Century Pictures that merged with Fox Film Corporation in 1935) - pardoned by Harry Truman, Al Jennings (star of many silent movies) - pardoned by Theodore Roosevelt, Duncan Renaldo (The Cisco Kid) - pardoned by Franklin Roosevelt, as well as H.B. Warner, who starred in Mr. Smith Goes to Washington (1939), It’s a Wonderful Life (1946) and The Ten Commandments (1956), The King of Kings (1927) - and who also obtained a famous pardon for two others. Franklin Roosevelt also commuted the sentence of Albert N. Chapereau, a smuggler involved in a case with Jack Benny and George Burns. Finally, it is well known that Hollywood producer Harry Thomason, lobbied Bill Clinton for two pardons. Steven Spielberg lobbied for the posthumous pardon of Charlie Winters.

See fake news story here.

Pardon Power on Trump's Radar ... Already

It took Barack Obama more than 600 days to grant the first pardon of his administration. But Donald Trump is already talking about a potential pardon for Kristian Saucier.

Saucier is serving a one-year sentence for taking photos on his cell phone inside a nuclear submarine, as a member of the Navy. Trump talked about his case during his campaign, suggesting the sentence was harsh. In recent interview he told Sean Hannity, "I’m actually looking at it right now ... I think it’s very unfair in light of what’s happened with other people.”

FOX News reports Jeffrey Addicott, a former Army attorney and director of the Center for Terrorism Law at St Mary's Law School in Texas, says Saucier’s prosecution was "politically motivated." He also notes, “Two other sailors who did the same thing just had to pay about $300 fines and didn’t go to jail.” Saucier’s case, on the other hand, landed around the time when Hillary Clinton’s classified emails were being debated. Said candidate Trump:

“They took the kid who wanted some pictures of the submarine ... That’s an old submarine; they’ve got plenty of pictures. If the enemy wants them, they’ve got plenty of them.”

See full story here.

O. Henry Petition Deep-Sixed

We wanted to inform our readers re the status of our recent petition for the posthumous pardon of O. Henry. We filed the petition on the advice of the former U.S. Pardon Attorney, Robert Zauzmer. We have done this twice before. Once, a former Pardon Attorney rejected it outright. The second time, the same Pardon Attorney did not even respond to the request.

In our recent (third) attempt, we asked the U.S. Pardon Attorney to forward the petition (or the standard summary of its contents) to the President without any formal recommendation. Which is to say, we wanted to avoid the standard default - "no" - of that Office. They are experts in saying it, so many ways. While petitions are not normally forwarded in this manner, such a thing would not have been unprecedented. Not even close.

As we saw it, we would get what we wanted - the petition would be seen by the President). The pardons office should have also been pleased - it could save its precious times, time that it clearly wanted to spend on almost exclusively on commutations of sentence for a single category of offenders. In sum, our request made hard sense. Mr. Zauzmer assured us the O. Henry petition  (or standard summary) would make it before "the President's eyes."

We were thrilled.

What we have since learned is that the former Pardon Attorney took it upon himself to re-litigate the issue of whether or not a president could / should be able to grant posthumous pardons. Bill Clinton granted the first (to Henry Flipper, in 1999). George W. Bush granted the second (to Charlie Winters in 2008). But maybe that was all by mistake. So, the Pardon Attorney studied the question himself (with the assistance of materials that we sent to him, to expedite his decision making). He then forwarded materials related to the issue (and, evidently, a recommendation memo) to White House staff. The decision was then made - between them - that no posthumous pardons would be entertained by President Obama. No O. Henry. No Jack Johnson. No Marcus Garvey. Etc. Etc. Any such applications were ignored as a matter of policy. They were not rejected on the merits.

We hope that the new Pardon Attorney manages that office more openly, honestly and with a greater eye toward precedent, efficiency and fairness, as opposed to clumsy PR ("making history," "records," etc.). Regardless, we will file another petition. And, we will once again ask that the Office of the Pardon Attorney - aka, the House of "No" - will, somehow, allow it to escape the clutches of the automatons.

Commutation Recipient Murdered

The San Francisco Chronicle reports that 31-year old Damarlon Thomas, a former Saginaw gang member, whose drug-related prison sentence was commuted President Obama:

... has been fatally shot at a federal halfway house in Michigan ... Two men wearing masks went into Bannum Place in Saginaw on Monday night ... Thomas was shot several times by one of the men as some of the roughly two dozen people at the home were held at gunpoint. "One person watched over a group of them while another subject located the victim and executed him," Kaiser told The Saginaw News. "They were looking for this person."

Thomas had been sentenced to 19 years in prison in 2008 on a cocaine charge, but his sentence was commuted to expire in March. See full story here.

OPA Change

Robert A. Zauzmer is no longer U.S. Pardon Attorney. Larry Kupers (former Deputy Pardon Attorney) is now serving as Acting U.S. Pardon Attorney. Kupers described himself in a 2004 paper as follows:

The author, Larry Kupers, has practiced in the area of federal criminal law as an assistant federal public defender in the Northern District of California since 1991. From October 2003 to May 2004, he served as the Federal Public Defenders’ visiting counsel to the United States Sentencing Commission. Currently he is completing a temporary duty assignment with the Office of Defender Services of the Administrative Office of the United States Courts.

Trump's First Pardon Opportunity?

On average, presidents have waited 104 days to grant the first pardon of their term. If you remove just seven presidents from the analysis (Obama, W. Bush, Clinton, H. W. Bush, Nixon, Adams, Washington), the average falls to all the way to 20 days. In other words, most presidents have hit the ground running. President Trump should seriously consider doing the same.

According to CBS News / AP, "approximately 230 protesters" were arrested on Inauguration Day and they will be "charged with felony rioting" - an offense punishable "by up to 10 years in prison and a fine of up to $250,000."

President Trump should consider pardoning the non-violent offenders among them. He should even consider pardoning them preemptively (before conviction, or before execution of sentence) just as Woodrow Wilson pardoned female suffragists who picketed the White House back in the day. Of course, some of those arrested do not fit the "non-violent" category neatly.

... Windows of downtown businesses were smashed, and police deployed pepper spray and “sting balls” against the crowd.The protesters were armed with crowbars and threw objects at people and businesses, destroying storefronts and damaging vehicles. Six police officers were hurt -- three of them hit in the head with flying objects ... 

Trump should pardon the offenses and remit any associated fines. He need not worry about any embarrassment re rejecting or refusing such pardons because no one has a "right" to spend time in prison on the dime of tax payers. If anyone insists on giving money to the government, they can make a charitable donation. See full story here.

And Their Arguments Have Only Gotten Stronger ...

From: “Preparing the Pardon Power for the 21st Century.” 12 University of St. Thomas Law Review 446 (Issue 3, 2016).

"In 1919, Attorney General A. Mitchell Palmer’s Annual Report argued that his duties and responsibilities had “increased so greatly” that it became “practically impossible” to give clemency applications “the attention and thought” that they required. Palmer thus proposed the creation of a three member Pardon and Parole Board that would make recommendations to the president. Three years later, the American Civil Liberties Union sent a letter to President Harding calling for the creation of a “new agency” to process clemency applications. According to the Washington Post, the organization thought the Department of Justice was “unable” to “go into” cases in a proper manner because of its “organization,” its “other many duties,” and the dominant role of federal attorneys who conducted the prosecution. It is so unfortunate that reform-minded persons did not win the day on these fronts a long, long time ago.

Many have high hopes that President Obama will exercise the pardon power more generously before his term finally ends. It is quite unfortunate that he has not exhibited more interest to date. But here we are. Unfortunately, if he grants record numbers of pardons and commutations of sentence between now and the end of the term, it may cause as much harm as good so far as public perceptions of the pardon power are concerned. The recommendations outlined above would, if implemented, prevent future presidents from ever finding themselves in such a predicament."

Click on Image (Above) to Enlarge

Talent: Last-Minute Pardoning.

Jim Talent, at National Review, weighs in on President Obama's use of the clemency power. Talent says Bradley/Chelsea Manning "released a volume of classified material that put American lives and interests at risk." Although Manning "has shown some remorse," Talent doubts "her expressions of sorrow reflect real repentance — a deep seated acceptance that what she did was wrong, and a commitment to respect and obey the law in the future."

So, seven years in prison strikes Talent as "too short." Manning would have been eligible for parole in three years anyway and:

... the parole process is designed to consider the kinds of mitigating factors that Manning’s supporters urged upon the Obama administration. That forum would have been the better one in which to consider her claims for mercy. 

Talent congratulates Obama for clemency decisions that don't "smack of the kind of personal corruption that tainted many of Bill Clinton’s last minute pardons." But the "timing" of many of his grants is "still very suspect." He writes:

I am a believer in the pardon power. It should be used aggressively, and without apology, where the executive believes either that a miscarriage of justice occurred in the courts or that the equities tip strongly in favor of clemency. I believe the American people would respect an executive who acted decisively and transparently in using the power, even when they disagreed with a particular decision. 

But these last minute commutations smell; they are yet another reason, for those looking for such reasons, to be cynical about the institutions of government and the leaders who populate them. There is a simple remedy available. Congress should consider a constitutional amendment making clemency decisions during presidential transitions provisional only, subject to reversal by the new president within 60 days after he assumes office, and inoperative, unless confirmed by the new president, until the 60 days had passed. (Special provision could be made for death-penalty cases.) 

Talent concludes presidents "should have the power to extend mercy when they think it’s justified." But they should also "be required to show some principle, and some courage, in how they do it." See full editorial piece here.

The Obama Administration: Two Snap Shots

Here are the final data (according to DOJ) for the Obama administration:

Interestingly, despite all of the administration's demonstrations about "making history" and "record setting," this chart (above) could be easily confused with similar charts constructed for previous administrations.

When all is said and done, Obama failed to "reinvigorate" (the new gas buzz word) clemency. No institutional changes / reforms were made. The same broken / dysfunctional clemency process that was around, before Obama came to town, remains, ready to revert back to business as usual.

Krauthammer on Manning, Obama

Today, at the Washington Post,  Charles Krauthammer comments on President Obama's commutation of sentence for Chelsea Manning, "one of the great traitors of our time." Krauthammer notes manning "stole and then released through WikiLeaks almost half a million military reports plus a quarter-million State Department documents." He writes, among other things:

... the military secrets were almost certainly deadly. They jeopardized the lives not just of American soldiers on two active fronts — Iraq and Afghanistan — but of locals who were, at great peril, secretly aiding and abetting us. After Manning’s documents release, the Taliban “went on a killing spree” (according to intelligence sources quoted by Fox News) of those who fit the description of individuals working with the United States.

... Even the word “leaker” is misleading. “Leak” makes it sound like a piece of information a whistleblower gives Woodward and Bernstein to expose misdeeds in high office. This was nothing of the sort. It was the indiscriminate dumping of a mountain of national security secrets certain to bring harm to American troops, allies and interests.

Obama considered Manning’s 35-year sentence excessive. On the contrary. It was lenient. Manning could have been — and in previous ages, might well have been — hanged for such treason. Now she walks after seven years.

What makes this commutation so spectacularly in-your-face is its hypocrisy. Here is a president who spent weeks banging the drums over the harm inflicted by WikiLeaks with its release of stolen materials and emails during the election campaign. He demanded a report immediately. He imposed sanctions on Russia. He preened about the sanctity of the American political process.

Over what? What exactly was released? A campaign chairman’s private emails and Democratic National Committee chatter, i.e., campaign gossip, backbiting, indiscretions and cynicism. The usual stuff, embarrassing but not dangerous. No national security secrets, no classified material, no exposure of anyone to harm, just to ridicule and opprobrium.

See full editorial here.

Private Manning! Get in the List! (Notable Military Clemency)

2017 - Pfc Chelesea Manning (leaks)
2000 - Preston King (draft evasion)
1999 - Henry Flipper (first posthumous presidential pardon, charged with embezzlement, first African-America USMA graduate)
1999 - Freddie Meeks (mutiny, Port Chicago incident)
1965 - Carl H. Buck - last known pardon for innocence (charged with theft)
1960, 1977 - Maurice Schick (murder, case to Supreme Court)
1950 - Leon Gilbert (insubordination, cowardice, 600,000 supporters!)
1945 - A Christmas amnesty to thousands of convicts who served honorably in the War
1945 - Sidney Shapiro (formally charged with obstruction of justice one hour before trial)
1944 - General Robert C. Richardson (charged with contempt, preemptive pardon)
1921 - Chaplain Franz J. Feinler (treason and propaganda)
1918 - Houston Rioters (riot, murder)
1913 - Thomas Franklin (financial irregularities, West Point treasurer)
1907 - John L. Lennon (AWOL, nephew of famous boxer, John L. Sullivan)
1900 - Admiral Bowman H. McCalla (had a thing for cruel and unusual punishments)
1890 - Dell P. Wild (refused to do "menial" work)
1890 - Lewis Carter (assault, robbery, desertion and a 99-year sentence)
1883 - John A. Mason (attempted to assassinate Garfield's assassin, Guiteau)
1882 - Fitz John Porter (disobeying an order, misconduct - blamed for Union loss at Bull Run)
1860 - Aaron Dwight Stevens (riot, assault, later one of John Brown's "officers")
1848 - General John C. Fremont (mutiny, declined pardon and resigned, aka "the Pathfinder")
1814 - General William Hull (surrendered Fort Detroit to British without a fight!)

330 Commutations granted today

Developing ...

Our Bold Predictions re Donald Trump, the Pardon Power

There is much chatter re what will happen to the pardon power once President Obama leaves office. We feel it is time that we go ahead and jump ahead of the bunch and launch our own bold predictions for the pardon power in the Trump administration.

Remember: you heard it all here first:

1. President Trump will take so little interest in clemency, he will not even lift a finger to appoint his own U.S. Pardon Attorney. He will just keep Obama's - if he can - the same way Obama kept George W. Bush's Pardon Attorney ... until he (the Pardon Attorney) had to be let go.

2. If Trump musters up enough interest in clemency to send a policy memo to the Office of the Pardon Attorney - stating goals and guiding principles - it will come late in the term and will be a near carbon copy of memos sent by previous administrations - as did President Obama.

Morison on Last-Minute Pardoning and Making History.

Attorney Samuel Morison specializes in federal executive clemency and actually worked Office of the Pardon Attorney for a number of years. Morison was interviewed recently by Broadly (The VICE Channels) and noted:

"Presidents have traditionally started granting commutations and pardons relatively early in their presidency, and they did it on a fairly regular basis throughout the course of their [time in office] ... So there wasn't any pressure to do a huge number at the end because they already had a record of doing it all along. That's a much more rational way to do this." 

More rational, of course, than the way Obama has done / is doing it. Obama waited over 600 days before the first clemency grant of his administration and his first term was the least merciful term since the first of George Washington. Now, Obama is engaged in the greatest 4th years surge of any president in history.

McCovey Pardon?! We Just Won't Know ...

Peter Yarrow (of Peter, Paul and Mary) once applied for a presidential pardon on December 10, 1980, and got one, from Jimmy Carter, on January 19, 1981. He offense was committed in 1970. The cynic might guess the speedy process of mercy - in his case - was at least partially explained by fund raising prowess, fame and connections in the Democratic Party. But, we all know how cynics are.

Now, just days before President Obama leaves office, a pardon is granted to San Francisco Giant Hall-of-Famer Willie McCovey. Who on earth saw that one coming? How interesting it would be to know when Mr. McCovey filed his application? How long did he have to wait? Many have waited years ... many, many years. Did McCovey?

In the Bush administration, you could write the Office of the Pardon Attorney, and they would provide you with information on when applications were filed and when they were forwarded to the White House. A FOIA request for that information might take you might take 10 to 15 days to process, at max. They would e-mail it all, right to your home.