Monday, July 24, 2017

Governors and Self Pardons

Max Kutner, at Newsweek, has done his homework. He has discovered that the first governor of the Washington territory, pardoned himself, writing, “I, Isaac I. Stevens, governor of the said territory, by virtue of the authority vested in me as governor, do hereby respite the said Isaac I. Stevens, defendant, from execution of said judgment.”

In addition, an "unnamed governor" identified only as a “popular statesman” was arrested for stealing a horse, found guilty and given a 3 year prison sentence. After being elected governor, he issued himself the pardon. Arkansas Governor Orval Faubus "reportedly" pardoned himself after he was briefly jailed, "a newspaper account said, though the details are unclear."

Kutner also notes legal analysts "have previously used state pardons to argue in favor of presidential ones."
Before 1999, no president had ever granted a pardon for someone who was no longer alive. When President Bill Clinton was considering pardoning Henry Flipper, a former slave who was dismissed from the Army because of allegations of impropriety, lawyers with the firm Arnold & Porter submitted a brief to Clinton in favor of the posthumous pardon, explaining that the precedent existed at the state level. They pointed out that since 1977, nine states had granted such pardons on at least 10 occasions. “We argue that the president’s power is similar to that of state governors, who have granted posthumous pardons,” the attorneys wrote. “Although the constitutional language of the pardon clauses from these states varies, the pardon power in these state constitutions is at least as expansive as the broad authority given to the president in [the U.S. Constitution]. Therefore, the experience of these states is compelling.” 
See full story here.

Kobil on Trump, Pardoning

Prof. Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil argues that, "as a practical matter there is virtually no chance that any of Trump’s inner-circle will go to jail, even if they are guilty." Why? Because "the president possesses the ultimate power to pardon any violations of federal law, including treason."

Kobil notes Trump can "stop any potential prosecution in its tracks by issuing presidential pardons" and such "can be taken preemptively, before any indictment is brought." The only "remedy" for such behavior is that "the Constitution provides for the possibility of his impeachment and removal." Indeed, "the impeachment and near-conviction of President Andrew Johnson stemmed in part from congressional disapproval of his lenient pardoning practices."

Kobil reasons, however, that impeachment "seems like a long shot" because "Republicans are firmly in control of both houses of Congress and Trump is so popular with the core Republican base." The GOP establishment "rallied around" Nixon for the better part of two years, as Watergate unfolded. See full editorial here.


Sunday, July 23, 2017

Scaramucci on Trump, Russia, Pardons

Incoming White House communications director Anthony Scaramucci on Trump, the Russia investigations and the pardon power:
"The President's thinking about pardoning nobody — because it has been coming up a lot. There's an undercurrent of nonsensical stuff ... This is the problem with the whole system ... He's the President of the United States. If I turn to one of my staff members at SkyBridge, I ask them a question, they run out to the news media and tell everything I'm thinking about, is that fair to the President? ... The truth of the matter is that the President is not going to have to pardon anybody because the Russia thing is a nonsensical thing ... While it makes for interesting academic decisions, let me tell you what the legal team is not doing ... We're not researching the issue, because the issue of pardons is not on the table, there's nothing to pardon from."
See TIME piece here.

Saturday, July 22, 2017

TIME: Guilty of Boredom

It had to happen, sooner or later ... the always-dreaded, poorly drawn up list of "controversial" pardons ... the traditional creation of journalists without serious time or interest in having any understanding of the history of the pardon power (sometimes these things are done more tactfully than others: see CNN attempt here).

So, here come TIME with its list, "Five Times a President Issued a Controversial Pardon" - Richard Nixon, Marc Rich, Scooter Libby (who was not pardoned), Caspar Weinberger, Vietnam draft dodgers. Notice the tendency to barely see beyond one's own nose. The casual reader might guess such pardons are a rarity, and a recent gig.

In fact, every generation of Americans has seen its controversial pardon ... or nine. The tendency, however, is simply to forget, or to let the specter of Richard Nixon retard one's research skills.

Presidents have granted clemency to child molesters, multiple ax murderers, Nazi saboteurs, persons complicit in the assassination of Abraham Lincoln, vampires, wild West outlaws, mafia gangland executioners, a man who tortured and murdered 60 people (one at a time), a Wall Street tycoon who drank a soapy like liquid to simulate the throes of death, who was pardoned so he could go home and die, who then recovered quickly and outlived the president who pardoned him!

Presidents have granted clemency to friends and relatives, campaign advisers and contributors, newspaper men, professional athletes, cabinet members, Hall of Fame race car drivers, best selling authors, movie stars, studio heads, pop musicians ... George Steinbrenner, Tokyo Rose, Jimmy "the Greek," Peter Yarrow ... the guy who produced those cute Boy Scout calendars, back in the day, and the inventor of Mother's Day!

No, TIME, your list of "controversial" pardons is certainly not "wrong." It is simply boring and uninformative.

Pardons: Trump Tweets


Friday, July 21, 2017

Answering CNN's Cillizza

Chris Cillizza, CNN Editor at Large asks Prof. Brian Kalt:
Presidential pardons have become a late-in-the-term move due to the controversy they cause. Has that always been the case, historically speaking?
Here is our answer:

First, it would be more accurate to say that pardons have become a "late-in-the-term move" due to media scrutiny, very often dramatized so as to drum-up scandal, or the appearance of scandal. This is, of course, understandable, to a degree. Viewership / readership matter in the business of journalism. But, the net effect is also exacerbated by the heavy emphasis media place on recidivism - at the expense of countless other real-life stories of wrongful prosecution, disproportionate sentencing, rehabilitation, redemption and reincorporation into society.

It is noteworthy that Willie Horton is often referenced as a benchmark in the hesitancy of governors and presidents to use the pardon power. But Horton was never pardoned by anyone. Think about that.

Second, has late-term pardoning "always been the case, historically speaking?" While it is true that most presidents have granted the largest number of pardons and commutations of sentence in the fourth and final year of the term, they granted pardons and commutations throughout the term, usually every month. Presidents usually granted the first act of clemency early in their term and there were no subsequent patches of many months - much less years (see Clinton, W. Bush, Obama) -  without clemency, followed by a large number of acts at the very end of the term. Large spaces of time without clemency started, roughly, in the Eisenhower administration.

Legislative Limitations on the Pardon Power

At the New York Times, Daniel Hemel and Eric Posner note:
... If a president sold pardons for cash, though, that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.
At the U.S. Supreme Court, Justice Field once noted:
The [pardon] power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Post: Trump Interested in Pardon Power

The Washington Post reports that "some" of President Trump’s lawyers "are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation, building a case against what they allege are his conflicts of interest and discussing the president’s authority to grant pardons." This all comes from "people familiar with the effort." The Post also reports that the President has asked his advisers about his power "to pardon aides, family members and even himself in connection with the probe, according to one of those people."

On the other hand, the Post reports that "a second person" says Trump "simply expressed a curiosity in understanding the reach of his pardoning authority, as well as the limits of Mueller’s investigation."

Trump's lawyers are said to be working "to corral the probe and question the propriety of the special counsel’s work" and are "actively compiling a list of Mueller’s alleged potential conflicts of interest" which could "serve as a way to stymie his work."

The Post boldly predicts that, if the President of the United States pardons himself, "in the face of the ongoing Mueller investigation, it would set off a legal and political firestorm."

Amazing.

Prof. Brian C. Kalt believes (as does the Editor of this blog) that "the weight of the law argues against a president pardoning himself," but allows for the notion that the question is "open." We are reminded of Jerome Frank's definition of "the law" - "a good lawyer's guess of how a particular judge might rule in a particular set of circumstances." But we also believe there is little or nothing in constitutional law which does not assume that, in the instance of clemency, there is the person granting clemency and there is a recipient. These are assumed to be separate, distinct actors. This assumption has been more than a mater of semantics, or theory. It has been a functional assumption. Prisoners have rejected conditional commutations of sentence, for example - ask President Obama. The Supreme Court has also often seen delivery and acceptance of an offer of clemency (by the intended recipient or his/her representative) as vital to understanding its validity - ask Isaac Toussie, pardon, then un-pardoned by George W. Bush. Etc. See Post story here.


Wednesday, July 19, 2017

Obama: Iranian Story Continues

Josh Gerstein of Politico reports that two Iranian men "have been indicted for allegedly hacking a Vermont defense technology firm, but one of their cohorts who admitted guilt won't be punished because of a pardon President Barack Obama granted last year as part of the Iran-U.S. nuclear deal."

The DOJ has indicted Mohammed Reza Rezakhah, 39, and Mohammed Saeed Ajily, 35, for "conspiring to hack South Burlington, Vermont-based Arrow Tech" as "part of an effort to allow Iranian companies to use the company's software in violation of U.S. export controls."

A "third actor" plead guilty for related conduct ... and was awaiting sentencing when he received the pardon from Obama - one of a series of clemency grants and dropped prosecutions the administration agreed to as part of a broader effort to reach a nuclear agreement and obtain the release of several Americans being held prisoner in Iran." See full story here.

Wednesday, June 28, 2017

OPA / DOJ Does What It Does Best ...

Kristian Saucier, a machinist's mate aboard the USS Alexandria from 2007 to 2012, used his cellphone to photograph parts of the submarine's nuclear propulsion system while it was docked at the U.S. Navy’s submarine base Conncticut. It is reported that he "knew they would be classified, but he wanted to show his family what he did in the Navy." He denied sharing the photos with "any unauthorized recipient," but was given a one-year sentence for "unauthorized retention of national defense information."

During the presidential campaign, Donald Trump complained, "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.”

Now, it is reported that the Office of the Pardon Attorney, in the Department of Justice has denied Saucier's application for clemency. His attorney is "surprised and disappointed,” saying:
“The fact that the president acknowledged that he was reviewing it and looking at it, in mid-January, signaled that he was putting his personal touch on this. The bureaucracy stifled our effort. We’re not confident that the president ever saw the petition for a pardon or clemency.”
The Editor knows the feeling. The OPA once assured him that President Obama would see materials related to a clemency petition. But it never happened. Reason 3,645 to remove the clemency process from the Department of Justice. See story here.

Wednesday, June 21, 2017

New York: Clemency for Detained Immigrant

The New York Daily News reports that Gov. Cuomo has granted clemency to one Carlos Cardona, "who was convicted of a non-violent drug crime in 1990, has been detained since February when federal immigration authorities took him from his Queens home weeks after President Trump took office." Cardona is an "undocumented" immigrant construction worker from Colombia and was subject to deportation.

Gov. Cuomo noted Cardona "assisted with Ground Zero recovery efforts at the expense of his own health" and hoped that that clemency would "reunite Mr. Cardona with his wife and daughter" and also "send a message about the values of fairness and equality that New York was founded upon."

The Daily News also reports Cardona "suffers from acute respiratory issues, depression, anxiety and PTSD." See story here.

New Jersey: Pardons

NJ.com reports Gov. Christie has "pardoned two more out-of-state residents -- both military veterans -- who were convicted of carrying their legally owned firearms into New Jersey" - Michael A. Golden (NM) and James Michael Thaddeus Peterson (NC) . Golden, a 68 year old former Army medic and with a Purple Heart, was arrested in 2013 for having a handgun in hotel room. Pederson was arrested in 2014 for possessing a handgun after an altercation. He was "a corporal in the Marine Corps and now serves as Director of Veterans Services for Moore County in North Carolina."

NJ.com writes, "Under New Jersey law, people with gun permits from out of state must keep their weapons unloaded and locked in their vehicle's trunk or stored in a secure container when they travel through the Garden State" and Christie "has now signed 14 gun-related pardons in his seven and a half years as governor, many for veterans. Most have come in the years since he announced his bid for the Republican nomination for president in 2015."

Christie says, "We need to be smarter about the way we do this ... What I don't want is for folks to feel like they can't come into our state, and be able to travel through it, or visit it, and have to make sure they go on the internet and look up exactly how you're supposed to be dealing with the gun laws." See story here.

Tuesday, June 13, 2017

Amy Povah: Carol Denise Richardson. The Rest of the Story.

See Amy Povah's excellent piece on Carol Denise Richardson at Huffington Post.

Link here.

Monday, June 12, 2017

Obama's Phenomenal 0.0005189 Recidivism Rate

FOX News reports that one of President Obama's clemency recipients has, quite tragically, run afoul of the law, once again. USA Today is all over this major story as well. It's the kind of thing the news media can never tire of.

It is also forever red meat to politicians who understand very little about clemency, the collateral consequences of conviction, the need for broad criminal justice reform, etc. But, by God, they know how to push buttons for those equally ignorant and ready to point fingers / make political hay. The "I told you so"s will appear from every worm hole.

We, on the other hand, note President Obama granted 212 pardons and 1,715 commutations of sentence. This case of "recidivism" represents 0.0005189 percent of Obama's clemency grants.

What a remarkable record! Dear Media: Discuss.

Larkin: Reform Clemency NOW !

At the Washington Times, Paul Larkin notes what all careful observers of the pardon power know, "the clemency process no longer works as well as the Framers hoped." Presidents have granted clemency "too infrequently" and President Trump can "remedy that shortcoming by making clemency decisions on a regular basis." Says Larkin, Trump should:
... set aside time three or four weekends each year to consider clemency petitions and announce his decisions straight away. That would allow him to avoid the impression that presidents pardon more turkeys than people. 
Trump should return clemency "to its intended use: to express forgiveness on the nation’s behalf and wipe the slate clean for the average person, rather than a crony or celebrity, who has admitted his wrongdoing and turned his life around."

But Larkin also recommends other changes. Trump "should transfer the clemency process from the Justice Department to a new clemency office in the White House" To which we say, NO DOUBT. The Office of the Pardon Attorney is just about as useless as any arm of the bloated federal bureaucracy. Its primary expertise rests in delayed summary denials of applications en masse and exempting itself from the requirements of FOIA. Additionally, says Larkin, the current weight of the opinion of the deputy attorney general is misplaced:
The deputy attorney general supervises the criminal prosecutions brought by every U.S. attorney’s office and the criminal sections of the Justice Department. He therefore labors under an actual or apparent conflict of interest when it comes to clemency. He might be unlikely to look neutrally and dispassionately on an offender’s claim that he should never have been charged with a crime; that he is innocent; that there was a prejudicial error in his case; that his sentence was unduly severe; or that he should be forgiven because he is a changed man. In any other decision-making process, a neutral party would play the role now performed by the department. The department should be free to offer a recommendation, of course, but it should not be able to strangle a reasonable application in the cradle. The president needs unbiased recommendations, and the nation is entitled to think that he gets them. 
So, Larkin says the vice president should become "the principal clemency adviser." See full editorial here.

Saturday, May 27, 2017

New York: O'Hara Turns the Tables

The New York Law Journal reports that Brooklyn attorney John O'Hara:
... the first person charged with illegal voting since 1873, when Susan B. Anthony cast a vote before women were legally allowed to do so, has over the past several years been reinstated to the bar and had his name cleared. Now O'Hara is setting his sights on a new challenge: He wants to lead a slate of insurgent candidates to run this year in the Democratic primary for open seats on the bench in Brooklyn Civil Court. 
O'Hara, who says he can "bring a perspective to the bench that no one else brings,” quips, “Better to be a judge than be judged."

Readers of the blog are aware that O'Hara was indicted on the illegal voting charge in 1996, but reinstated to the bar in 2009. His conviction was then thrown out. See previous posts here.

O'Hara will file papers to become a candidate and needs at least 4,000 valid signatures on a petition. See story here.

Friday, May 26, 2017

Maine: 17 Commutations of Sentence

McClatchy report Gov. Paul LePage has granted "conditional commutation orders for 17 prisoners through a plan that he says will help offenders get jobs and won't threaten public safety." The idea is applauded by the ACLU of Maine and "state prisoner advocates."

Some Republicans see it as a "soft on crime" ploy and "part of an effort to close a long-embattled Washington County minimum-security prison." McClatchy reports:
Alison Beyea, executive director of the ACLU of Maine, called LePage's decision "a positive step toward ending Maine's over-reliance on incarceration." Her group notes that census figures show that Maine's state prison population has increased nearly 300 percent since 1980, while the overall state population has grown 18 percent. "In Maine, like the rest of the nation, we lock up too many people for too long, at too great a human and fiscal cost," she said. She added, "in order for this effort to be truly successful though, we will need a thoughtful plan to ensure formerly incarcerated people can successfully transition back to society." That means more job training and education, she said, as well as "finding employers who are willing to hire people once they are released." 
See story here.

Illinois: Five Pardons

Gov. Bruce Rauner has granted 5 petitions for clemency and denied 197 others. The grants involved "attempted burglary, theft and drug charges." Per usual, "each [recipient] has undergone a background check." Rauner says he has "eliminated a backlog of thousands of clemency requests inherited under previous governors" - largely by rejecting them. See story here.

Thursday, May 25, 2017

Gianforte, Quists, and "Little Hitler."

An excerpt from Pardon Me, Mr. President: Adventures in Crime, Politics and Mercy, P.S. Ruckman, Jr., forthcoming.

When Francis Shoemaker of Minnesota ran for Congress in the late 1920s, the world of political campaigns was forever changed. The man who was proud of the fact that his education had not been “retarded” by public schools was one to decorate public speeches with profanity and animated floor-spitting. He was inclined to label his political opponents as “rodents,” “jellyfish,” “alley rats” and “ravenous fiends.” For special critics, he reserved “looting, thieving liars,” the name “Judas” and the color “yellow.”

Shoemaker raided the classrooms of the very high schools his mother would not let him attend, distributing campaign literature and screaming this and that until he had to be physically removed. When one Matt Quist expressed his own opinion about the fine details in a Shoemaker campaign speech, he was unceremoniously knocked unconscious … by the speaker.

Can Trump Pardon Himself?

The Editor has long thought that Prof. Kalt's discussion on the topic of self-pardons is the best - it is summarized in a previous blog post here.

The Washington Post has now written on the topic here.

Here is the full content of the e-mail that the Editor sent to the Post when consulted on the topic. 
I would add (although Kalt might not agree so much) that Supreme Court jurisprudence has always assumed a dichotomy - the granter and the recipient. Indeed, pardons have been revoked on the premise that they had not been accepted by (or had not been delivered to) the intended recipient. Similarly, commutations have been voided because the intended recipient did not accept attached conditions. This happened once to Obama. So, I would say that, with this assumed dynamic. the granter accepting clemency from himself is nonsensical. There is no "acceptance" in that scenario, in any sense of the language.

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