Showing posts with label G.W. Bush. Show all posts
Showing posts with label G.W. Bush. Show all posts

Friday, July 21, 2017

Post: Trump Interested in Pardon Power

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

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

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

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


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

Friday, January 13, 2017

Historic Denial of Clemency Applications

With 804 denials of commutation applications announced today, President Obama has denied more clemency applications than the last five presidents - over 32 years - combined.

It seem likely that, in the next seven days, this number will increase, by thousands.

Thursday, October 6, 2016

Ricky Ray, Karla Faye and Keith Cooper

According to the Washington Post, Republican Vice-Presidential candidate Mike Pence "has issued only three pardons in Indiana since he took office in 2012." The Post notes that, in contrast, his predecessor, Mitch Daniels, "issued more than 60 during his eight years" as governor of Indiana. The Post probably should have also noted Daniels granted only 1 request in his first four years.

In addition, there is the case of Keith Cooper, which the Post describes as "complicated." Cooper and another suspect were arrested for attempted murder and armed robbery in 1997. Cooper claimed he had never even met his co-defendant, but matched a description, was convicted and given a 40-year prison sentence. The Post says "evidence of Cooper’s innocence surfaced years later."

DNA from a hat left at the crime scene "belonged to someone else." It was later traced to another man who had committed a murder in Michigan some years later. Victims and eyewitnesses have also "since recanted their original statements about Cooper" and have accused a police detective of "manipulating" them into "identifying" him. Consequently, Cooper left prison in 2006, after serving less than 10 years. Amazingly:
... Cooper’s co-defendant, Parish, had been exonerated. In 2005, the Indiana Court of Appeals overturned his conviction. Parish also had won a civil rights lawsuit against Elkhart County officials, along with a nearly $5 million settlement ...
However, the Post reports, a judge gave Cooper "two options." He could "pursue a new trial" and possibly remain in prison a few more years, awaiting the outcome, or he could "accept a deal" allowing him to exit prison with his felony conviction "intact." Cooper chose a "deal" in 2006, but is now seeking a new trial ... and a pardon ... from Mike Pence.

Hard not to recall candidate Bill Clinton trying to out "law and order" his Republican opponent by allowing the execution of the "mentally insufficient" African-American Ricky Ray Rector, in 1992. Hard not to think of George W. Bush's seeming callousness toward the reformed Karla Faye Tucker, who was executed in 1998.

Pence’s general counsel says Cooper must exhaust all of his appeal options in court before petitioning for a pardon. The judicial process must first take its course. Blah. Blah. Everyone with even casual familiarity with the pardon power (state or federal) knows such matters constitute no real limitation on a governor's use of the pardon power, or a president's ... unless they chose to make such things a limitation. This a matter of discretion, not law. The truly critical thing here is how Pence uses the power given to him and the discretion he has to employ that power.

Posing as if he is constricted by law is ... quite unimpressive ... a giant red flag.

See full story here.

Tuesday, August 30, 2016

Obama's Abysmal Record on Pardons

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White House PR Chart Fail

When the White House does clemency PR ... ten ... nine ... whatever.

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"We're none of us perfect." - Homer Simpson. If we are making comparisons, very oddly, to recent presidents (none particularly known to be generous with the pardon power), we believe that it might also be worth noting that President Obama has received many more applications for commutations than his predecessors (see chart below). Comparable data are not available before Nixon.

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Obama's Commutation Rate

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Tuesday, August 23, 2016

FLASHBACK: Toobin on Libby, the Pardon Power

Jeffrey Toobin's preference for dramatic error over scholarship and expertise is ... well ... a thing:

Wolf Blitzer asked “senior legal analyst” Toobin if George W. Bush could do “something sort of a pardon” for Scooter Libby, perhaps “suspending” or “shortening the sentence?” Amazingly, Toobin responded:
Well, I have to say, maybe there are some constitutional experts out there who will contradict me, but I don't think the president has that authority. I think it's an all or nothing proposition. He can pardon "Scooter" Libby and end the case against him today. But other than that, he has no authority, as I understand it, to get involved in the process at all. THE SITUATION ROOM, June 14, 2007.
Read that again! "There may be some people with expertise on this matter, who know more than I ever will - on this topic - but I am Jeffrey Toobin and I think what I think is what really matters most! Furthermore, my view is really dramatic." The cynic might call this approach a bit "snotty."

Two editorials, one at the Washington Post (William Otis, "Neither Prison Nor Pardon: Justice in the Libby Case Lies With Bush's Third Option." June 7, 2007) and the other at National Review (P.S. Ruckman, Jr. "Respite for Scooter." June 14, 2007), had it right. It was not an either/or situation for the President at all. Bush had a range of choices and all of them involved the constitutional use of the pardon power.

Indeed, Bush did not pardon Libby. He simply commuted the 30-month prison sentence, leaving the remaining portion of the sentence intact.

A “totally shocked” Toobin told CNN, “Maybe I'm just naive.” ANDERSON COOPER 360 DEGREES, “No Prison For Libby.” July 2, 2007.

Yeah, maybe.

Wednesday, August 3, 2016

Obama and Other Multiple Term Presidents

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Obama: Second Only to Wilson and Coolidge in Commutations

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Sunday, April 3, 2016

Obama is No Nixon (or Eisenhower)

White House counsel W. Neil Eggleston - and others in the White House - are want to compare President Obama's record on clemency favorably (after almost two full years of zero pardons and commutations of sentence) to the least merciful presidents. Even then, the focus of such "analyses" is but one dimension of clemency (commutations, not pardons). We imagine there are other, less awkward and more enlightening reference points: such as presidents who have, like Obama, have served more than one term:

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Fortunately, Mr. Eggleston, who recently presided over an organizational framework which completely excluded the U.S. Pardon Attorney from communication with the Office of White House Counsel - even when the Deputy Attorney General deep-sixed recommendations for clemency - has told Politico that, in the last months of the administration, the “infrastructure is now very much in place” to file and process clemency petitions and we are all "going to start seeing a lot more very quickly" and "on a more regular basis."

Thursday, December 17, 2015

December Pardoning: Still a Bad Idea

The assertions that presidents (and governors) tend to grant pardons and commutations of sentence near the end of their terms, or during the Holiday Season, are empirical propositions to be tested, not simply stated. For that reason, the Editor of this blog conducted the first data-driven analysis of "seasonal" clemency, published in White House Studies (Volume 11, Number 1, 2011). Among other things, the study found 1 of every 2 grants of clemency from Nixon to George W. Bush (39 years) was granted in the month of December. Furthermore, the prevalence of December pardoning remained considerable, even when controlling for late term (fourth year) December pardons.

It is reported that President Obama will be granting clemency in a hundred or so cases some time in the next few days. Here is how his administration compares to previous administrations re December pardons:

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As a long-term advocate for greater / more serious use of the pardon power (state and federal), it will be easy enough for the Editor of this blog to be happy for the recipients of President Obama's forthcoming mercy - especially since we live in a nation where the Founding Fathers thought there should be "easy access" to mercy. Nonetheless, we continue to hold the conclusion that can be found in our original research: December ("seasonal," or Christmas) clemency is - generally - a very, very bad idea. It is a very poor substitute for serious, regular consideration of clemency applications - and grants - throughout the year (and the term).Why?

Tuesday, June 9, 2015

Obama: The Basement of Two-Term Mercy

As has been the case for most of the Hope and Change presidency of Barack Obama, the number of pardons and commutations continues to lag behind that of recent two-term presidents, including Republican presidents Eisenhower, Reagan and George W. Bush.

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Monday, April 6, 2015

WJS on Scooter Libby

Scooter Libby
The Wall Street Journal opines that, "one of George W. Bush’s worst decisions was failing to pardon Lewis “Scooter” Libby before he left the White House."

The Journal, of course, "urged" such a pardon because the perjury case against Libby "was always flimsy, hanging on uncertain memories from years earlier about noncriminal behavior." The Journal was also concerned that Bush took "the media bait" to appoint "an unsupervised special prosecutor." Having done that:
Attorney General John Ashcroft abdicated his duty and recused himself. That left the choice of prosecutor to Deputy Attorney General Jim Comey (now President Obama’s FBI director), who picked Mr. Fitzgerald, his old prosecutorial pal and godfather to one of his children. Mr. Fitzgerald became a Javert who wanted to get Vice President Dick Cheney for something, and he zeroed in on Mr. Libby, the Veep’s chief of staff, as his vehicle. 
Now comes a book by Judith Miller which reports Fitzgerald told Mr. Libby’s lawyer twice that he would drop all charges against him if he turned state’s evidence on Mr. Cheney. Unfortunately, for Libby, "he had no evidence to trade." So, says the Journal, Fitzgerald "set out to ruin Mr. Libby."

The Journal also believes the Washington, D.C., jury "was stacked with Democrats during the height of anti-Iraq war fever" and Judge Reggie Walton "contributed to the injustice" by barring testimony from experts re memory. In the Journal's view, was "all too typical of today’s prosecutors who want to make a name for themselves, or are out for a political score."

Mimicking the dramatic charges of Dick Cheney, the Journal argues Bush left him "behind on the battlefield" and this "betrayal was a failure of presidential character." So, says the Journal, "the next Republican President should learn from that betrayal" and "pardon Mr. Libby in his first week in office." See editorial here.

Saturday, December 20, 2014

Obama: A More Rigorous Comparison

It is reported that a White House official recently attempted to favorably compare the clemency record of President Obama with recent presidents, Bush, Clinton and Reagan, which is something like being proud of the fact that your team has won more Super Bowls that the Minnesota Vikings, or that you have won more presidential elections than Harold Stassen.

Below, we have disaggregated Justice Department data (which are also arranged by fiscal year) for five recent two-term presidents and arranged them to display the cumulative number pardons and commutations of sentence granted to the exact point (month) in time where President Obama's term is today.

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What is obvious is that Obama is no Eisenhower, or Ronald Reagan for that matter. Data for presidents like FDR and Woodrow Wilson would simply go off the chart. And, indeed, at this point in his presidency, Obama lags behind recent two term presidents. This is, of course, the reason why, to date, he sits at 7th on the list of All-Time-Least-Merciful-Presidents.

Tuesday, September 30, 2014

Lacking In Mercy

There are certainly many ways to gauge the amount of mercy displayed in an administration. Instead of simply looking at the total number of pardons, commutations of sentence, remissions of fines and forfeitures and respites, we gathered original data and calculated the average number of individual grants of clemency - per year of the term - for each and every president. That is to say, we considered consistency in the use of clemency throughout administrations, as well as the overall figures. This is what we found:

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It is clear that, to date, the Obama administration represents a low point, a very low point, in the exercise of this great, necessary, Constitutional power.

Wednesday, November 6, 2013

Farewell October!

Fare thee well October! For four years now, Barack Obama has not granted a single pardon or commutation of sentence in the month of October.

But, that's OK. Over eight years, George W. Bush also granted zero in the month of October. Bill Clinton actually granted seven pardons - across his eight years in office - during the month of October. All seven were granted in October of 2000. In his four years as president, George H.W. Bush granted zero pardons and commutations in the month of October.

What does it all mean? It means, across 24 years, and four different presidents, both Republican and Democrat, there has been a grand total of 7 acts of federal executive clemency in the month of October. Since all of them were granted by one president, in a single October, it means 23 of the last 24 Octobers have featured zero pardons and commutations.

Coming soon: November and December!

Tuesday, August 27, 2013

More on Obama, Records and Clemency Applications

Obama, No FDR!
In a previous post (here) we noted that it is likely that the Obama administration will set a new record with respect to clemency applications. Here (below) is additional information on why we hold this view:

With three years to go, it seems pretty clear that Obama's application pile will surpass that of the Bush administration, which is second only to that of Franklin Roosevelt. In fact, Obama is already 70 percent of the way to beating Roosevelt's mark (of 13,541 applications) and he would only need to average 93 pardon applications per month, to the end of the term, to top it. At the current application rate (an average of about 171 applications per month), the Obama administration would close out with almost 17,000 clemency applications (see our own "Projected Applications" bar in the chart below, on the far right).

Wednesday, March 6, 2013

Pardon Process: Bush v. Obama

Bush Administration
Obama Administration
Clemency actions
Average years between sentencing and clemency
Average years granted applications spent in bureaucracy
Average number of days granted applications spent in White House
Average years total time process took per granted application

Thursday, February 7, 2013

T. Roosevelt v. Modern Presidents

                 Commutations of Sentence
     Theodore Roosevelt v. Eight Recent Administrations

% of All Grants
% of All Grants
FY 1902
FY 1903
FY 1904
FY 1905
FY 1906
H.W. Bush
FY 1907
FY 1908
W. Bush
FY 1909


* Across 8 fiscal years, Roosevelt granted three times more commutations of sentence than all of the presidents over the last 45 years combined. See additional summary statistics on commutations of sentence here.

Thursday, January 24, 2013

Obama: More Dubious Pardon History-Making

President Obama's first term has now ended and, along the way, his administration tied Bill Clinton's first term for the fewest months featuring grants of either pardons or commutations of sentence. Obama granted a mere 22 pardons and 1 commutation of sentence, the lowest number for a full term for any president since George Washington! And he (Obama) did it all in just three months. The remaining 46 months of the term were a complete wash.

It will now be interesting to see just how far clemency dysfunction continues. In the first term. Obama also strung together 23 consecutive months without granting a single act of clemency. The length of the drought tied George W. Bush's first term for the longest of any modern president. Obama is currently riding a 14-month string of inaction.

Months Featuring   Clemency (of 49)
Months Without Clemency (of 49) Most  Consecutive Months Without Clemency
F. Roosevelt (1)    45     4        4
F. Roosevelt (2)    37     12        11
F. Roosevelt (3)    44      5        1
FDR / Truman (s)    46     3        1
Truman (1)    49     -        -
Eisenhower (1)    25     24        7
Eisenhower (2)    14     35        7
Kennedy / Johnson (s)    40     9        3
Johnson (1)    23     26        7
Nixon (1)    5     44        13
Nixon (2) / Ford (s)    17     32        9 
Carter    31     18        5
Reagan (1)    17     32        8
Reagan (2)    31     17        5
Bush    5     44       18
Clinton (1)    3     46         22
Clinton (2)    11     38       11
Bush (1)    7     42       23
Bush (2)    13     36       7
Obama    3     46       23

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