Sunday, November 7, 2010

Otis v. Morison - Good Stuff !

Our readers are encouraged to visit the back and forth over at Doug Berman's Sentencing Law and Policy blog between William Otis (who wrote a famous editorial recommending a commutation of sentence for Scooter Libby) and Samuel T. Morison (former attorney adviser in the Office of the Pardon Attorney). Morison, of course, recently wrote a landmark letter to the L.A. Times explaining the sorry state of affairs in the Department of Justice re pardons.

Otis started the chat sarcastically feigning surprise at Morison's observation that Justice Department attorneys in the OPA "defend the department's prosecutorial prerogatives." He later argues OPA attorneys should not expected to be "neutral." Instead, they should deliver the "perspective of the prosecuting agency." For spice, he tosses in the suggestion that career bureaucrats do not act out of "political calculation" and bear no "political consequences" for their decisions. Referencing his own experience in the DOJ, Otis says that the suggestion that they do is "baloney."

Morison's response is as crisp and compelling as his letter to the Times. He notes that Otis "misunderstands both how the clemency advisory process has functioned historically and how OPA holds itself out to the public" because:
... the clemency advisory process is not an adversarial one. Unlike most other DOJ attorneys, the pardon attorney wears two hats ... the pardon attorney is one of the very few DOJ officials who is authorized to directly contact the White House Counsel’s Office, which is not an infrequent occurrence. And, while the specific contents of particular clemency recommendations are shielded from disclosure by executive privilege, the privilege belongs to the president. When acting in this capacity, the pardon attorney’s “client” is the president, not a “prosecuting agency.”

Moreover, when acting in this advisory role, the pardon attorney’s responsibility is precisely to give the president even-handed advice about the merits of individual cases, not simply to parrot the DOJ “prosecuting agency” line ... Under these circumstances, the pardon attorney has a moral obligation to be fair, albeit not one that gives rise to legally enforceable rights. Equally importantly, OPA routinely represents to applicants and their families, as well as members of the public, Congress and the media, that this is how each case is handled, which simply isn’t true (a point that you conspicuously do not contest). Fortunately, I don’t need to reveal privileged information to prove the point: the numbers speak for themselves. If DOJ was really looking at each of these cases on the merits, as it claims, there would be more favorable recommendations and hence more grants.
Morison's decision to participate in public dialog regarding the pardon power is welcomed and immeasurably beneficial. Otis would be well advised to point sarcasm (however benign) in a different direction. See Berman's original post and comments here.


bcurtis said...

It is good stuff. I appreciated your comment over there. I just finished reading Margaret Love's paper on Presidential Pardons, history and speculation. How I wish.

Anonymous said...

If all this is true, then want is the point to file an application if we are misguided in doing so. I also received the fairness commentary from a staff attorney when deciding to file an application. Great information, but disappointing to realize that all the effort and time spent worrying is probably all for nothing. I did the math when I started and know that my chance is only between 6-8 percent of being granted. I will stay postive thru Christmas, but if not granted by then i will withdraw my application.
Pardon Power and others who take the time to make all this information available provide a great sevice for those of us who wait and wonder.

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