WSJ on Bush Guns and Bush Pardons

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

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

These patterns are significant because:

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

See full article here.

Governors Support Pardon for Governor

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

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

Pardon Power on NYC's "The Takeaway"

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

Harrison, Garfield Pardons Revoked by Blast Magazine

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

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

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

BBC Takes on Pardons

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

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

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

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

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

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

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

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

More Local Reporting on Recent Bush Pardons

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

Alaska: Stevens? What?

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

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

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

Holder: Disqualified!

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

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

Watch List: Ryan In (Finally)

With some modifications.

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

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

Giants Kicker to Get Long Shot?

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

Watch List: Ryan's Tardy Application

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

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

WSJ on "Sweeping Pardons"

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

Chronicle: Helping by Not Helping

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

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

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

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

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

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

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

Idaho: Solider Seeks Pardon

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

Comment: Garrard McClendon Live

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

Watch List: Durbin and the Bizarro

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

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

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

The President: Local Reporting on Bush Pardons

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

The President: Bush By the Numbers

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

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

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

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

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

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

The President: Bush Pardons 14. Grants 2 Commutations

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

The pardon list includes:

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

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

Post: "Scholars" Disagree?

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

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

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

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

Sentencing Project on Presidential Pardons

The following letter appears in today's Washington Post:

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

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

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

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

A Footnote to Remember

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

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

"I See Dead People ... Pardoned!"

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

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

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

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

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

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

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

Another letter of support from a prominent American reads:

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

Pardons for Fugitives

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

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

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

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

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

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

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

Context: Pardon Trivia Time

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

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

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

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

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

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

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

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

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

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

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

* Which one pardoned a best-selling author?

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

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

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

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

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

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

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

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

Watch List: Different Angle on Conrad Black

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

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

See full article here.

Kentucky: Plea From Family of Victim

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

Resolution to Limit Pardon Power?

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

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

Watch List: Black is In

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

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

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

Pardon Places: The Unofficial Tour

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

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

Blacksmith's Shop (New Orleans,LA)

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

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

The Bradford House (Washington, PA)

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

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

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

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

The Fries House (West Rockhill (PA)

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

Niagara Falls (NY)

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

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

Shushan Airport (New Orleans, LA)

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

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

Western Massachusetts

Thinking About Black: Same Old Mistakes

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

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

Advice for Obama Re Pardons

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

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

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

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

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

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

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

See full text of interview here.

Holder and the Rich Pardon

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

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

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

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

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

Pennsylvania: Pardon Tale

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

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

Where is this going?

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

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

Constructing the Comfy Chair for Holder

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

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

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

Daily News on Holder Nomination

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

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

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

Remembering Eric Holder (Correctly)

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

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

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

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

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

Press Secretary Expects "Some" Pardons

From today's press conference:

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

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

Holder on Mandatory Minimums: Ask Questions!

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

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

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

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

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

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

See full transctipt of the press conference here.

NR on Holder

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

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

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

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

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

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

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

See complete National Review piece on Holder here.

Marc Rich? Is That It?

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

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

Will Executive Privilege Become Cool Again Under AG Holder?

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

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

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

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

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

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

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

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

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

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

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

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

See Holder's full statement here.

Election Over. New Tune. Holder Next AG.

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

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

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

Senior Judicial Analyst?

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

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

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

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