Wednesday, November 30, 2016

Happening now, at the White House ...

The President. The Pardon Power and DREAMers.

Raul A. Reyes, is described, by CNN, as "an attorney and member of the USA Today board of contributors." He calls on President Obama to pardon DREAMers:
... the young people brought to this country illegally by their parents, 740,000 of whom signed up for President Barack Obama's program granting temporary deportation deferral: Deferred Action for Childhood Arrivals, or DACA. 
A White House official, however, has said:
"We note that the clemency power could not give legal status to any undocumented individual. As we have repeatedly said for years, only Congress can create legal status for undocumented individuals."
We are guessing Reyes has done about as good a job as anyone has (or can) do on this front but are less than convinced. He says, for example that the administration "misses the point," because "no one is asking for legal status for the DREAMers; what [they] are seeking is a presidential pardon for them." This play on words seems critical, and quite telling.

We have no doubt whatsoever that, where there are past violations of federal law (none of which are specifically referenced by Reyes), the president can pardon any and all of them, as sweepingly as he chooses, with or without conditions, or any public explanation, or reasoning.

Tuesday, November 29, 2016

Letter to President Obama

November 29, 2016
The Honorable Barack Obama
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500

Dear Mr. President:

We have strongly supported your initiative to grant clemency to incarcerated individuals, and we applaud your efforts to review as many petitions as possible before you leave office. We know how important this issue is to you, and with time running short, we know your team is working overtime to commute the sentences of as many worthy individuals as possible.

However, in the interest of justice, we hope you will consider additional steps that would expand the number of individuals eligible for relief. While your administration continues to review individual petitions, we urge you to also determine that nonviolent offenders in certain extremely low-risk categories either deserve expedited review or should be granted clemency absent an individualized review. With time running short on your time in office, these steps would be a way for you to deliver lasting change for thousands of deserving individuals and their families.

Monday, November 28, 2016

Sunday, November 27, 2016

Call for Pardon, Reform of Prosecution

Today, in the pages of the Wall Street Journal, Charles Renfrew, a former U.S. District Court judge and U.S. deputy attorney general, and James H. Reynolds, a U.S. attorney, are calling on President Obama to grant a pardon to one Sholom Rubashkin. As they tell the somewhat complex tale, Mr. Rubashkin is former vice president of Agriprocessors, "a kosher food processor." In 2008, U.S. Immigration and Customs Enforcement agents "raided the company’s plant and arrested hundreds of the firm’s workers who were undocumented immigrants." A filing for bankruptcy followed.

Saturday, November 26, 2016

Obama's Commutations

All Commutations
Term Commutations
Life Sentences
Avg. Sentence Length (in months)
Avg. Distance: Sentence to Commutation (years)
Avg. Distance: Commutation to Effect (years)
Avg. Distance: Sentence to Commutation Effect (years)

Friday, November 25, 2016

Obama: Breaking Records in a Broken System

It seems more than likely that, before he leaves office, President Obama will break Woodrow Wilson's record for commutations of sentence. It is, however, more than a little amazing (if not highly informative) to compare the use of federal executive clemency in the two administrations.

By the time he left the White House, Wilson had granted 1,087 presidential pardons (as well as 226 respites and 148 remissions). Obama, however, has granted a mere 70 pardons, the lowest number granted by any president serving at least one full term since John Adams. It doesn't seem likely that Obama will pass out 1,000 plus pardons between now and the end of the term. But there appears to be little concern about it on any front. So, it is what it is.

Consequently, clemency, for Obama, has meant - for the most part - commutations of sentence, almost exclusively for those convicted of drug offenses. And these grants have - for the most part - been granted late in his second term. Indeed, the Obama administration already features the largest 4th-year clemency surge of any administration in history.

Thursday, November 24, 2016

Turkey "Pardons." Why?

Jason Hernandez, whose sentence was commuted by President Obama in 2013:
“I could never figure out why that turkey deserves a second chance, I remember one of the most demoralizing times in prison for me and for other prisoners was Thanksgiving. And that was because every year we would see the president of the United States, the most powerful man in the world, use his executive power to pardon a turkey – an animal. And yet we, who despite being prisoners are still human, were rotting away in prison for decades.”
See story here.

Wednesday, November 23, 2016

Obama's Legacy: Institutional Change v. An "Example"

The New York Times' Matt Apuzzo is struggling mightily with President Obama's legacy re federal executive clemency. He notes Obama "is on pace to be the first president in a half century to leave office with a federal prison population that is smaller than when he was sworn in" and attributes this - in part - to the President's "aggressive use of presidential commutations," a somewhat problematic proposition from a variety of mathematical angles.

Apuzzo describes Obama's "push" for clemency, how he "has used his clemency power to free people jailed for drug crimes." Obama has written "personal letters" telling inmates "he believed they could turn their lives around." Neil Eggleston says the President "is committed to using his clemency power in ways not seen in the modern era” because our nation "is a nation of second chances.”

But Donald J. Trump’s AG nominee, Sen. Jeff Sessions, is "looming" over it all. Sessions "strongly opposed Mr. Obama’s liberal approach to criminal justice ... favors vigorous enforcement of drug laws and the use of mandatory minimum sentences." Sessions (a former federal prosecutor) also credits "strict enforcement for today’s low crime rates."

As Apuzzo sees it, "some of Mr. Obama’s criminal justice legacy is easily undone." As an example, he notes DOJ "policies," which "can be torn up." But the elephant in the piece is very clearly federal executive clemency - the pardon power. What is Obama's legacy on that front? What has he done that can be undone?

FLASH: Shocking "Inside Scoop" on Turkey Pardons !

They are really, really, truly dumb.

Now, move on to more important things:

Although previous presidents were truly neglectful (some proudly so), the President's recent commutations are a drop in the bucket. The clemency process needs to be changed, radically, now.

Clemency needs to be regularized - as it was for most of American history - not a last-minute rush, or afterthought.

With some irony, while the media spit out goo all over this "tradition," no one will note that President Obama has granted fewer pardons than any president since John Adams. Happy Thanksgiving !

And ... the President should pardon the great American writer, O. Henry!

Tuesday, November 22, 2016

Obama's 1,000th Commutation: Hold the Fireworks.

Click on Image (Above) to Enlarge

Obama Could (Should) Go EPIC.

Pardon O. Henry!

Add Substance, Meaning to Turkey Pardon "Tradition"

P.S. Ruckman, Jr. and George Lardner, Jr. 

Tomorrow, President Obama will participate in one of the most highly visible traditions of the presidency – the ceremonial pardon of White House turkeys. He says he is “puzzled” the tradition endures. Indeed. What offense do the turkeys commit?

Early in his administration, critics observed Obama had pardoned more turkeys than human beings. Animal rights activists were never fond of the fowl exercise. PETA’a web page details the “grim fate” of White House turkeys. One year, the President’s daughters were blasted for their supposed inappropriate attire and demeanor. Last year, Huffington Post speculated Obama “hates every minute” of these affairs and usually looks like he wants to be “anywhere else.”

This year, he could turn it all around.

79 Commutations of Sentence

President Obama has passed 1,000 mark. Second only to Wilson in total number of commutations of sentence.

Developing ...

Click on Image (Above) to Enlarge

Monday, November 21, 2016

Osler: Obama Instructs Obama. It Can Be Done.

At the Minneapolis Star Tribune, Mark Osler has a fine piece which features President Obama in a meeting with himself, or himself 20 years from now. It is truly a great read. Osler makes the point that, in the second term, the President has done some extraordinary things with the pardon power - at least in terms of comparison with his recent predecessors. But that isn't really saying much. In a key passage, the dialogue goes like this:

Obama:  .... How can I do any more?

Visitor:  ... You group them and cut the sentences of the lifers for nonviolent narcotics offenses, or the ones who didn’t get retroactive benefit when the crack law changed in 2010, or the long-termers over 60, or all of those groups. You have the Sentencing Commission send you the names; they’re good with data. If you wanted, you could use clemency to say that no nonviolent drug defendant should do more than 20 years ...

Friday, November 18, 2016

Obama, Mistaken on Point re Pardon Power

In a recent interview, the President suggested that he cannot grant a pardon to someone unless they go "before a court" and "presented themselves." This is not correct. The President can pardon anyone, for a federal offense, at any time, before, during or after conviction. This would also include fugitives from the law. We guess that the President may have meant to say, "In Snowden's case, I am not willing to consider a pardon unless he turns himself in."

SPIEGEL: Are you going to pardon Edward Snowden?

OBAMA: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system. At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security.

Trump Pardons Hillary. Hilarity Ensues.

It's February 14th, 2017. The air is filled with love. Reporters are called to the White House for a major announcement. They are seated, waiting, and President Trump enters. Looking very presidential. He steps to the podium and says:  

TRUMP: As you are aware, we have just gone through a hard-fought, tough, and yes, sometimes nasty, presidential campaign (reporters force tepid smiles, grins, not being particularly amused). My opponent, Hillary Clinton was tough. Trust me, on that (sniff). She is a tough person. She doesn't quit. Believe me. I admire that.

You may also recall that, during the campaign, the FBI was investigating thousands and thousands of e-mails Secretary Clinton sent and received on a private server. There were concerns that, in the process, rules, regulations, standard procedures and, yes (sniff), laws, may have been violated. Indeed, the FBI Director concluded that she was "extremely careless" (sniff). Extremely. Although the Director concluded 110 e-mails contained classified information at the time they were sent or received by Secretary Clinton, he also concluded there was no evidence that she intentionally transmitted or willfully mishandled classified information.

Some believe Director Comey was wrong to grant immunity to critical players in the investigation, not to call a grand jury and not to recommend the pressing of charges. I, myself, expressed some of the very same criticisms, as a candidate. But now (sniff), I am President of this great country, that I love, believe me. Really. And I am now anxious to move forward, and make America great again. Mrs. Clinton has served this country as First Lady, a Senator and as Secretary of State (sniff). She is a good person. Really, I mean that. Good people. I think it is time that we, as a nation, move forward, and put this behind us. Recall how Gerald Ford pardoned that crook Richard Nixon? So the nation could move forward? Even though it was not a particularly popular decision at the time?

Thursday, November 17, 2016

Chicago Tribune: Consistency. Care. Routinized Pardoning.

In previous posts, we have wondered if President Obama's end of term clemency splurge - while long anticipated, and pleasing to no small degree - might not actually do long-term damage to the pardon power. Today, the Editorial Board of the Chicago Tribune ponders similar complexities. It notes, the President's "rush of late commutations suggests the [clemency] process now operates in a less orderly, deliberate way, which invites mistakes."  In addition, the Editorial Board says:
Presidential clemency is meant to be an instrument of wisdom and compassion ... If we can make our own plea as [President Obama] weighs acts of clemency during his final days in office: A power this consequential should be employed in a way that is easier for the public to understand and accept. 
Why this conclusion? The Tribune recognizes that the President has "long been critical of lengthy sentences imposed on drug offenders" and that he "has focused his clemency powers on reducing sentences for federal inmates who meet certain conditions." Indeed, to date, Obama has very generously commuted the sentence of 944 felons - more than 300 with life sentences.

Papa: Life After Clemency

This Side of Freedom: Life After Clemency is a riveting, compelling tale about the life of activist, writer and artist Anthony Papa. He tells firsthand of his experience of returning home after serving 12 years of a 15-to-life sentence for a non-violent drug crime sentenced under the mandatory provisions of the Rockefeller Drug Laws of New York State. In 1997 he was granted executive clemency by New York Governor George Pataki.

Papa says that the freedom he fought so hard to get, smacked him swiftly in the face, overpowering him. He struggles with his freedom while fighting to free those he left behind. Papa goes through heart-wrenching trials and tribulations as he seeks to end the war on drugs. Along the way he meets an array of individuals from famous movie stars to politicians and the very rich, enlisting their help in doing away with mass incarceration and draconian sentencing laws that have destroyed America's criminal justice system.

This Side of Freedom: Life After Clemency can be purchased here.

Jackson: Pardon Hillary! Reason: Zip It

Jesse Jackson, said to be significant in Bill Clinton's last-minute pardons of Dorothy Rivers (a crony and unrepentant thief of government funds) and John H. Bustamante (another crony and fraudster) is - evidently - aware of the fact that Hillary Clinton "has not been legally accused, indicted, tried or convicted of anything.”

In addition, Jackson believes prosecution of Mrs. Clinton "would be a monumental, moral and political mistake."

And that is why ... Jackson also believes that President Obama should preemptively pardon her!

No, that doesn't make much sense to us either.

But Jackson buttresses his 'argument' with this impressive point: Ford pardoned Nixon!

Saving grace is that the Rev. Jackson admits that he has not actually given the topic "a lot of thought" because he is more interested in "healthcare, jobs, border control, tax reform.” Thoughtless commentary about pardoning the person who won the popular vote in 2016. World really needs a lot more of that! See story here.

Tuesday, November 15, 2016

McCarthy, Obama, Hillary Pardon

"Obama, using an alias, willfully communicated with Clinton via her private e-mail account at least 18 times. This implicates him in her mishandling of classified information. Indeed, the Obama–Clinton e-mails would be admissible evidence in any trial of Mrs. Clinton — as likely would be the fact that the president falsely denied knowledge of Clinton’s private e-mail usage when asked about it in media interviews ... My sense is that President Obama will issue a pardon that covers not only Mrs. Clinton but any crimes committed by any person arising out of both the homebrew e-mail system and the Clinton Foundation — including any false statements and obstruction of the FBI’s investigations. That would make it case closed, sparing Obama embarrassment and Trump a political hot potato." Andrew C. McCarthy, National Review.

"Here's a promise I'll make. I will not pardon somebody who was part of my administration and who broke the law in part, probably, to cover my backside. That is not something I will do." - presidential candidate Barack Obama, commenting on Scooter Libby's commutation of sentence.

Monday, November 14, 2016

McCarthy on a Clinton Pardon

At National Review, Andrew McCarthy heads up what strikes us as a second, more thoughtful wave of writing re a potential pardon of Hillary Clinton. It is lengthy, and wandering, and the primary substantive point seems to be Trump needs "to be ready with a plan." OK. Our previous thoughts on this topic can be found here. Another good effort can be found here.

McCarthy appears intrigued by the fact that White House press secretary has refused to "indicate" any "commitment" to pardon, or not pardon, Mrs. Clinton before leaving office - which strikes us as silly. Especially since McCarthy argues:
The question primarily arises because there is significant evidence of felony law violations. These do not only involve the mishandling of classified information and the conversion/destruction of government files (i.e., the former secretary of state’s government-related e-mails). It has also been credibly reported that the FBI is investigating pay-to-play corruption during Clinton’s State Department tenure, through the mechanism of the Clinton Foundation — the family “charity” by means of which the Clintons have become fabulously wealthy by leveraging their “public service.” Thus far, Mrs. Clinton has been spared prosecution, but we have learned that the e-mails aspect of the investigation was unduly limited (no grand jury was used); and the legal theory on which FBI director James Comey declined to seek charges is highly debatable, even if it has been rubber-stamped by Attorney General Loretta Lynch. 
In sum, the situation is fluid and dynamic. Why should the President fog up the air further with any kind of "commitment" response to a world of potential hypothetical situations? On top of that McCarthy recognizes "the proximate cause driving the pardon question" is President-elect Trump’s claim that he would appoint a special prosecutor to dig into Clinton's “situation.” We all know candidates routinely make "promises" they do not keep, or intend to keep, or prioritize even when they intend to keep them. Was this really a major Trump campaign promise? Or nothing more than a kind of intuitive defensive mechanism given the personal nastiness of the campaign?

Thursday, November 10, 2016

Obama. Pardons. Hillary. O'Reilly.

In response to what the Editor believes has been an awful lot of very poor writing / reporting / commentary over the last 24 hours, the following thoughts are offered:

President Obama has granted a total of 70 pardons. That's the lowest number for any two term president since George Washington.

While it is apparent that the President will be granting additional commutations of sentence (especially for drug offenders), there is little to suggest that pardons are anywhere on his agenda between now and the end of the term.

Wednesday, November 9, 2016

Nixon Pardon Unprecedented? No.

The Star Telegram notes:
“There are many examples in history of pre-conviction pardons, though none as open-ended as Nixon’s,” Margaret Love, who formerly served as the Justice Department’s chief pardon attorney, said in an email interview Wednesday.
We're not so sure we agree with that, if we are understanding the meaning correctly. Later, the same piece notes:
In theory, any case could be short-circuited by a presidential pardon granted before Trump takes office on Jan. 20. The precedent was set in September 1974, when President Gerald Ford extended a pardon to Nixon, his former boss, who stepped down rather than face impeachment and possible criminal charges ... He added that the “full, free and absolute pardon” covered all offenses that Nixon “has committed or may have committed or taken part in” during his presidency.
We looked, very briefly, at our own data set of presidential pardons and quickly came to disagree with that analysis, at least as it appears to us. Presidents have granted very open-ended, pre-emptive pardons before. Nixon's was not the first. In February of 1821, for example, James Monroe pardoned  a New Yorker who "allegedly" violated laws related to passenger vessels - before conviction - for "whatever offenses" that "may have been committed" in the time that he served as Master of a particular ship. The Editor's memory is that there other instances around, but that was the first, obvious one. See article here.

Politico on Bizarro Pardon Hypothetical

At Politico, Josh Gerstein reminds us that President Obama:
... has the authority to foreclose that possibility by pardoning Clinton for any federal offenses she may have committed or could ever be prosecuted for. And he could do it whether she asks or not.
Of course, coming up with a reason why on earth he would do such a thing is ... quite difficult. Gerstein says an unnamed source thinks,“What he’s going to do with this power in the next two months is really a good question.” But that is hardly helpful.

Indeed, Gerstein seems to recognize that such a pardon
"... is fraught with danger to Obama’s reputation and to hers, as any move to protect the failed Democratic presidential nominee would surely trigger charges of unfairness and political favoritism, while seeming to some to be an admission of guilt."
Not to mention completely unnecessary. Clinton has not been convicted - or even charged with anything. Gerstein is not particularly clear what he thinks Obama would pardon her for (the emails?the Clinton Foundation? Weinergate? What?). To top it off, Gerstein cannot seem to find a single person in the Trump camp who has a special prosecutor burning brightly in their mind.

So, why the bother with the bizarro hypothetical at all? Gerstein says a pardon "would offer the only foolproof way to head off such a prosecution" and Clinton's window to clemency "closes on Jan. 20." How entirely unimaginative. Maybe Trump has her prosecuted, then pardons her to appear merciful and kind! See shocking headline "story" here.

Tuesday, November 8, 2016

Female Suffragettes, the President and Pardons

On July 17, 1917, sixteen “militant suffragists” (Mary Hall Ingham, Bettie Graves Regneau, Julia Hurlbut, Mrs. John Rogers, Mrs. John Winters Brannan, Mrs. Florence Bayard Hilles, Allison Hopkins, Minnie Abbott, Beatrice Kinkead, Anne Martin, Mrs. Robert Walker, Jeanet Frothingham, Mrs. Gilson Gardner, Louise C. Mayo, Eleanor Calnan, Dorris Stevens) were sentenced to pay twenty-five dollar fines each or serve sixty days in the Occoquan “workhouse.” Three days earlier, they had engaged in “unlawful assembly” outside the White House.

Such protests were not new but, previously, those found in violation of the law had been sentenced with much less severity. For example, between June 22 and June 26, twenty-seven protesters had also been arrested, but were released without any penalty whatsoever. Those who were arrested on 26th were held overnight. Six women arrested on June 27 were fined twenty-five dollars and sentenced to three days of confinement upon their refusal to pay. Other similar arrests followed the three-day pattern.

The New York Times covered the trial of the sixteen suffragettes and their sentencing with vigor. Author Christine A. Lunardini notes the courtroom was “filled with women, many of whom had never been in a courtroom, much less seen a trial.” The judge threatened to clear the courtroom numerous times because of the outbursts (cheers, applause, etc.) of sympathizers. Two of the defendants, Doris Stevens and Anne Martin, attempted to act as attorneys, but the group generally considered the trial a “farce.” Stevens summarized her defense as follows:
We know and I believe the Court knows also that President Wilson and his Administration are responsible for our being here today … What have these distinguished and liberty-loving women done to bring them before this court of justice? Why, your Honor, their crime is that they peaceably petitioned the President of the United States for liberty … We say to you, this outrageous policy of stupid and brutal punishment will not dampen the ardor of the women. Where sixteen of us face your judgment today, there will be sixty tomorrow, so great will be the indignation of our colleagues in this fight. 
Anticipating the outcome of Stevens’ approach, the defiant suffragettes brought bags carefully packed for a trip to jail. But she later wrote that “all in the courtroom were shocked” when District Court Judge Mullowney concluded a sixty-day workhouse sentence would be appropriate. Lunardini also observes courtroom spectators were “stunned.” Perhaps the bags were not packed all that carefully. The Times observed that the sixteen suffragettes were “marched” to cars “in company with Negro women prisoners.” (Stevens described her company as “drunks and disorderlies, prostitutes and thieves.”) The whole bunch was then sent “down the river.”

Susan B. Anthony Voted, Pardons Followed

In the summer of 1872, the Republican Party wrote the first reference to women in a major party platform. It read, in part:
The Republican Party is mindful of its obligation to the loyal women of America for their noble devotion to the cause of freedom; their admission to wider fields of usefulness is received with satisfaction, and the honest demands of any class of citizens for equal rights should be treated with respectful consideration. 
Fifty-two-year-old Susan B. Anthony showed her appreciation for the statement by endorsing Ulysses S. Grant for president. The Republican Party expressed its appreciation for the support that followed her endorsement by appropriating funds for women who campaigned for Grant.

But, when the election came around, Anthony decided to look for a little more from the Republicans. Responding to a newspaper editorial that encouraged voters to take "five minutes" to register to vote, she decided she had that sort of time and thought to do just that. So, on November 1, 1872, she joined her three sisters and ten other women from her ward in a trip to the local barbershop turned registration office.

Clemency: The Final Months of the Final Year

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Sunday, November 6, 2016

Obama's Clemency Grants, Denials, Closings

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Friday, November 4, 2016

72 Commutations 4 Days Before an Election. Normal?

Today, President Obama granted 72 commutations of sentence, just 4 days before the presidential election. It seems to us - at least on the surface - that what we have argued for so long was/is correct: he has more political capital to exercise the pardon power than any president in our lifetime. Why he waited so long to do so has always been a mystery. On the other hand, the paucity of pardons in recent administrations - and even smaller numbers of commutations of sentence - has often been explained in terms of presidential fear, or a hesitancy resulting from an environment hostile to the pardon power.

Interesting stuff, but how do Obama's pre-election grants look in terms of historical data?

We gathered preliminary data from over 100 years of presidential elections. We find that, in the 28 terms covered by the data, presidents averaged a distance of 87 days between Election Day and their last grant(s) of clemency. When was the last time grants were made a few as 4 days before the election? 1940, Franklin Roosevelt. When was the last time someone made grants less than 4 days before the election?  1928, Calvin Coolidge. Notably, in the administrations before Eisenhower (roughly half of the chart), presidents rarely ever went a full month without granting at least one pardon or commutation of sentence.

72 Commutations of Sentence ...

In an extraordinary move (see our post here), just days before the Presidential Election, President Obama has granted 72 more commutations of sentence, bringing his total to 944. His number for pardons remains at 70,

Developing ...

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Obama's Thanksgiving Opportunity

As we approach Thanksgiving and the classically annoying turkey pardoning exercise, we remind the President that he has a very excellent opportunity to do something smart, right, appropriate and perfectly befitting his legacy of concern re second chances, rehabilitation and the harsh effects of mandatory minimum sentencing laws. He could grant a posthumous pardon to the great American short story writer O. Henry.

There are other requests for posthumous pardons floating around (Jack Johnson, Marcus Garvey, Julius and Ethel Rosenberg, etc.), and every case is different. But O. Henry's case is substantively, categorically different from all of the others. The other requests feature numerous elements of controversy. The White House will find itself having to defend those pardons.

Not so in the case of O. Henry. The President quoted O. Henry one Thanksgiving. The U.S. Postal Service issued a stamp commemorating what would have been O. Henry's 150th birthday. And with good reason. O. Henry lived such an exemplary (and accomplished) life after his conviction that most people (including his own daughter) had no idea he had ever spent time in prison. When the word got out -  after his death - many assumes he was innocent all along. Thus, the Editor of this blog has, once again, filed a formal application for posthumous pardon with the Office of the Pardon Attorney.

You can read the cover letter to the O. Henry application here.
You can read the O. Henry pardon application here.
O. Henry's offense is described here.
And, most importantly, the several reasons why President Obama should grant a posthumous pardon to O. Henry are enumerated here.

Thursday, November 3, 2016

Hatch on Commutations. Dim. Sloppy. Unimpressive.

At National Review, Senator Orrin Hatch (R-Utah) has written an editorial entitled, "Serious Drug and Firearm Criminals Should not be Candidates for Early Release." Up front, the piece concedes there are "instances where a guilty defendant receives an overly harsh sentence" because "perfect justice is not possible in an imperfect world." Hatch also agrees that "our system of mandatory minimum sentences can produce unjust outcomes." But Hatch emphatically asserts:
... we need to be very careful about letting convicted criminals out of jail early, particularly ones convicted of serious drug and firearm offenses ... When it comes to releasing offenders currently in prison [we] must be cautious. 
And that is why he has "taken a cautious approach to many of the criminal-justice reform efforts advanced recently in Congress" Indeed.

More specifically, the Senator reminds us that "many incarcerees pled down from more serious crimes," so "the offense for which they’re serving time was not the offense initially charged, or the most serious offense for which the government could have won a conviction." It is an interesting point ... to a point. But, of course, incarcaerees should - generally speaking -  only be serving time for what they have been convicted of, not what they could have possibly been convicted of. We sincerely hope Senator Hatch is not out to change all of that.

Could President Clinton Pardon Herself?

Yes, it has already begun. If Hillary Clinton is elected president, will she pardon herself? Every time this kind of chatter starts up, we get to pretend like we are the first to think of the scenario, and amaze ourselves with the vivid nature and range of our imagination. The exercise has become something of a tradition since Richard Nixon came along.

Could Hillary Clinton pardon herself? Oh, sure. Would such a pardon, if challenged in the federal courts, withstand scrutiny? We would like to think not. In a 1996 Yale Law Journal article, Professor Brian Kalt seems to have handled the issue well enough.

Kalt notes, the "self-pardon" was "nowhere mentioned in the debates or in the English history that informed [the Framers of the Constitution]. As such, arguments derived from [them] are speculative at best." On the other hand, the federal government "is structured to prevent self-dealing, as evidenced by several constitutional provisions."
A member of Congress, for instance, cannot simultaneously hold another federal office, and cannot resign to take a job that was created or whose pay was increased during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election, and the presidential salary cannot be increased without an intervening presidential election. The President also cannot receive any other "emolument" from the United States besides his salary. In other words, federal lawmakers cannot create or enhance plush, high-paying government jobs for themselves, at least not without letting the voters review the decision. Another example is that the Chief Justice, not the Vice President, presides when an impeached President is tried. The other implicit constitutional prohibition against self-judging comes from the Expulsion Clause, which provides that either chamber of Congress can expel its members by a two-thirds vote. Although there is no explicit prohibitory language in the Clause against voting in one's own expulsion case, members of Congress do not do so, despite the high stakes and narrow margins of many expulsion votes. 
Kalt notes that, in other parts of the Constitution, "government officials are kept from acting as decisionmakers in matters that directly, materially, and uniquely affect them."
This disfavor for self-dealing in the structure of the government, explicitly recognized by the Framers themselves, provides important structural support for the claim that a President is forbidden from pardoning himself. The purported power of a President to pardon himself would be constitutionally anomalous and unprecedented in the constitutional structure. Such a power simply does not fit with the rest of the structure of the government established by the Constitution. It clashes with other established provisions in the Constitution that prevent self-judging and self-dealing. 
Kalt guesses an attempted self-pardon "would likely undermine the public's confidence in the presidency and the Constitution," but, "looking at the question from a cooler vantage point, the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."

UPDATE: Four hours after this post, the Wall Street Journal's blog posted "Can a President Self-Pardon?" by Jacob Gershman. It also refers to Professor Kalt (a kind of Christmas miracle), but Richard Posner as well.

Wednesday, November 2, 2016

Clueless Katie.

It is said that Katie Pavlich is "the Editor at" and a "New York Times Best Selling author." She Tweets:
Just FYI, Clinton would have to be indicted, tried and convicted for Obama to pardon her before leaving office. Not going to happen.
One marvels at the seemingly high levels at which aggressive ignorance can sail.

Mr. President: Pardon O. Henry !

This Thanksgiving, presumably, the President will engage in the annual silliness - the turkey pardoning exercise - at the White House. The already obnoxious exercise took on a bit of an age when, for a long period of time, the President had granted more pardons to turkeys than he had actual human beings. 

One year, President Obama quoted the great American short story writer, O. Henry. A year later, the U.S. Postal Service created a stamp commemorating what would have been O. Henry's 150th birthday. Punch line is O. Henry was a convicted felon who spent time in prison.


So was just about everyone who knew O. Henry- including his daughter! Only a few people knew about the matter because his shame was so great that he hid it as best as he could. By the time he died, he had led a life of such positive repute, many refused to believe he could have been correctly convicted. But, he was. And, after he was sentenced under a mandatory minimum sentence statute, O. Henry became a model prisoner. He was paroled early and, afterward, showed every sign of what an intelligent person would call "reformation" or "rehabilitation."

President Obama should grant a posthumous pardon to O. Henry this Thanksgiving, and add some serious, needed, substance to the dreadful turkey pardoning gig. Read more here

Tuesday, November 1, 2016

Add Meaningful Pardon of O. Henry to Dumb Turkey Pardons

September 23, 2016
Robert A. Zauzmer, U.S. Pardon Attorney
Office of the Pardon Attorney
4th Floor, 500 First Street, N.W.
U.S. Department of Justice
Washington, D.C. 20530-0001


Enclosed, you will find a formal application for the posthumous pardon of William Sydney Porter (O. Henry). The perfect time for this grant would be Thanksgiving, 2016.

It is my understanding that, in the past, other persons have made informal inquiries re the possibility of such a pardons but did not file a formal application and were met with the Department of Justice’s once traditional negative stance on posthumous pardoning.

Unlike other attempts at obtaining posthumous pardons, this application 1) makes considerable effort to show - empirically - that the intended recipient would have probably been considered well-deserving of clemency had he but applied in his own day and 2) that he is an excellent example of the kind of offender that President Obama has reached out to - in historically impressive ways - with commutations of sentence and the Department of Justice’s Clemency Project 2014 initiative.

FBI Produces FOIA Information on Clinton / Rich Pardon

Bill Clinton and Denise Rich
Bloomberg reports that the FBI has "unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton’s pardon of Marc Rich. The file was actually posted online Monday "but received little attention until the FBI noted it in a tweet on Tuesday afternoon."

Says Bloomberg, "the Clinton campaign immediately questioned the timing of the release."
The investigation stemmed from one of several pardons Clinton made on the last day of his presidency in 2001, that of financier and international fugitive Marc Rich, whose ex-wife Denise had given to the Democratic National Committee and the entity that would later become the Clinton Foundation. While the files may seem dated, they invoke figures beyond the Clintons who went on to play key roles in official Washington -- including Comey. He served as prosecutor in charge of a legal case against Rich from 1987 to 1993. As the U.S. attorney in Manhattan in 2002, Comey took over a criminal investigation of Clinton’s pardons. “I was stunned” at the Rich pardon, Comey wrote in a letter to lawmakers in 2008. 
Former Attorney General Eric Holder has also been critical of Comer. He was, of course, knee-deep in the Rich pardon controversy as well. See more on this story here.

First Pardoned President ?

A point of presidential trivia: John Tyler (aka "the accidental president"), in all likelihood, would have benefited from one of the Lincoln / Johnson post-War amnesties ... had he not had the poor taste to die first. Tyler left the presidency in 1841, voted for Virginia's secession from the Union and went on to become elected as a Confederate congressman in 1862. 

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