Showing posts sorted by date for query FOIA. Sort by relevance Show all posts
Showing posts sorted by date for query FOIA. Sort by relevance Show all posts

Thursday, September 7, 2017

Drain DOJ / OPA Swamp Now !

Regular readers of the blog are aware that FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015 (see posts here).

Theses requests for information (two sets of dates related to clemency applications) were routinely send, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max.

Then, William N. Taylor II "Executive Officer" of OPA simply stopped responding to our FOIA requests. He then stopped acknowledging that they were being received at all. Consequently, we waited, quite literally, for years - for any indication whatsoever that his Office was of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) simply recommended that we simply wait until the Obama administration was over.

Today, Taylor has written the Editor:
This correspondence is in response to your Freedom of Information Act (FOIA) request dated and received in the Office of the Pardon Attorney (OPA) on December 17, 2014.  We have shared quite a bit of correspondence on this subject over the past year, so I apologize for the delay in completing this request.  Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., you requested case jackets for the December 17, 2014 grantees. After carefully considering your request, I have determined that no pages are being withheld in full and the attached 6 pages are appropriate for release with redactions, pursuant to 5 U.S.C. § 552(b)(5), which concerns certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege.  No fee has been charged for the search, review or production of these documents.
Previously, Taylor said the dates were lost in a new electronic filing system (yes, he really said that). NOW the two dates that the Editor was given for years, across two administrations are "certain inter- and intra-agency communications protected by the deliberative process privilege and the attorney work-product privilege." Shame on everyone in DOJ who passed out this information, for years, before Taylor came along. How incompetent of all of them!

Bush administration / Obama administration / Pre William N. Traylor II FOIA grant:


William N. Traylor II FOIA grant (after years of considering the matter):




Monday, June 12, 2017

Larkin: Reform Clemency NOW !

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

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

Wednesday, May 17, 2017

DOJ Appeal of Delay / Obstruction ... Delayed

Department of Justice's "appeal" of the bureaucrat William N. Taylor II's / Office of the Pardon Attorney's two years of delays / obstruction of FOIA requests right on track ... at least by DOJ standards.


Thursday, March 30, 2017

Obama Administration: Most Embarrassing Clemency Episodes

Slow to Care

After a campaign packed with rhetoric re "Hope and Change," President Obama waited longer than any president in American history - save George W. Bush - to grant the first pardon of his administration (link). Some floated the idea that he was simply "too busy" - a fairly lame defense for a presidential candidate who sarcastically rebuked John McCain for failing to understand that one can do more than one important thing at a time (link) and in consideration of the behavior of previous presidents (see post here).

The Merciless First Term

Obama's foot-dragging was not limited to the granting of the first pardon. When the first term ended, he had granted a mere 22 pardons and a single commutation of sentence. Bush, Reagan and Nixon were criminal coddling softies in comparison. Indeed, to find a full term that merciless, one has to go all the way back to George Washington's first term! Of course, in Washington's day, there was no gargantuan criminal code, no booming federal prison population and there weren't thousands of clemency applications coming in. Who knew Obama would care so little? See post here.

Lies, Damned Lies and Clumsy Statistics

In July of 2015, White House Press Secretary Josh Earnest suggested President Obama's record on commutations of sentence was "bold." To make his point, Mr. Earnest compared the President's total number of commutations (89) to that of the four previous presidents. Mr. Earnest failed to point out the previous four presidents granted 88 commutations of sentence. President Obama had "beaten" them by a grand total of ONE. In addition, none of the previous four presidents received nearly as many applications for commutations of sentence as Obama. By that point, Obama had received a thousand plus more applications than all of them combined (link).

The hacks at DOJ were all about announcing new "records" and "making history," but just about always in the clumsy manner of Mr. Earnest (link). At one point, the OPA made graphic display of data a mini-comedy routine (link). When all was said and done, clemency, for Obama, primarily meant commutations of sentence, for one class of offenders (drug offenders), late in his presidency. Meanwhile, his record on pardons was abysmal (link). While Obama set an all-time record for commutations of sentence, the number he granted was small fraction of the number of applications received (link) and, of course, an even smaller fraction of prisoners serving sentences under laws that he supposedly considered unjust (link).

AG Lynch Talks Cra Cra

As Obama's term came to an end, and it was apparent that many thousands would left in prison via drug sentencing laws that he supposedly opposed, the obvious question became: "Why not grant an amnesty?" U.S. Attorney General Loretta Lynch told Rachel Maddow - without reference to any authority - that the granting of a pardon is “an individual decision that’s made on a case-by-case basis.” Consequently, “There’s no legal framework or regulatory framework that allows for a pardon of a group en masse” (link). It was perhaps the most preposterously ridiculous comment ever made by an Attorney General of the United States re clemency. Later, at the POLITICO gathering, Lynch tied the erroneous commentary to the possibility of a "blanket clemency for drug offenders," saying, "These are very individual decisions ... When you’re talking about clemency, the same as with pardons, it’s a very individualized decision. I think it would be hard to craft a system for a blanket commutation of a class of people" (link). Hard? Sure. If you are clueless. Amnesties are a great American tradition, and have been granted by many presidents. See post here.

Epic Transparency Fail

After an amazing show of cheer-leading for "transparency" via FOIA (link), President Obama's DOJ simply stopped processing FOIA requests altogether. The pathway was something to behold. First, requests were not answered. Then, receipt of requests was not acknowledged. At one point the U.S. Pardon Attorney actually recommended just waiting until Obama left office to make FOIA requests. Everyone was just too busy for the law thing (link). But, actually, after Obama left, OPA began denying requested information it had shared via FOIA requests for years. First, it was claimed that a new "electronic filing system" made it more difficult to retrieve information. Yes, you read that right, They updated and information retrieval was reduced ! Then, it was claimed that the information may or may not exist. Then, it was claimed that it was no longer necessary to share the information (link). Predictably, the DOJ is delaying appeal of all of this incompetence and resistance to the law (link).

Fast, Dirty, Sloppy, Last-Minute History Making

When Bill Clinton granted a batch of last-minute pardons, media wondered (and reasonably enough) if applications were fairly considered, and properly vetted. Why were the one who were granted clemency chosen, among thousands? After generally neglecting clemency for eight years, why was Clinton suddenly a fan? None of these critical inquiries were on the radar as President Obama engaged in the greatest fourth-year clemency surge in American history. The Times and Post did report on DOJ officials supposedly plowing through huge piles of applications as Obama's presidency came to an end. Yes, they went through those piles at home, over the Holidays, while missing meals and sleep. Far from being critical of the fact that such important decisions were being made in such an unprofessional way, the media romanticized it, as if the work of heroes was being done. They may have been working hard, but they certainly were not working smart. See post here.

The Final Spin (of the Flat Tire)

Just before he left office, Obama published a 56-page article in the Harvard Law Review on the president's role in advancing criminal justice reform. At page 25, Obama first mentioned the idea of "reinvigorating clemency," but the piece says nothing - as in zero - about reforming clemency. Obama noted it could not be "a substitute for the lasting change that can be achieved by passage of legislation" - a position which, quite literally, no one, anywhere in the universe takes. He then awkwardly wrote, "the Framers gave the President this authority to remedy individual cases of injustice" - as if he were as ignorant of amnesty as AG Lynch.

Obama took credit for "an unprecedented effort to identify the types of inmates who deserve particular consideration for clemency" but did not much emphasize much that this "effort" took place outside of DOJ - where clemency applications have traditionally gone to die. That should, in and of itself, say something, actually a great deal, about the need for reform in DOJ, or, even better, moving the clemency process outside of DOJ altogether. Obama concluded that the effort of his "team" had "touched" him "personally," that he has "worked to reinvigorate the clemency power" and that he "set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good." Not very likely. See post here.

Shameful.

Sunday, March 26, 2017

DOJ Late in Appeal of OPA Incompetence

Click on Image (Above) to Enlarge
Maybe - like OPA  - they will wait a few years:

"For eight years in the Bush administration, and until 2015 of the Obama administration (see .pdf attachment sent to me in April of 2015), I requested copies of case covers for granted clemency applications from the Office of the Pardon Attorney. More specifically, the information I sought was the date granted applications were filed and the date that they were forward to the White House. These requests were usually sent, acknowledged, fulfilled in a matter of days, 2-3 weeks max (see Excel attachment).

William N. Taylor II "Executive Officer" of OPA (I assume) then simply stopped responding to FOIA requests. He then stopped acknowledging FOIA requests were being received at all. Consequently, I have waited, quite literally, for years (see attachment), for any indication whatsoever that OPA operates under the requirements of FOIA. I was advised by the previous pardon attorney to wait until the Obama administration ended.

So, this evening (February 8, 2017), I sent an e-mail to OPA, politely inquiring whether or not it intends to knowledge / fulfill FOIA requests this year (2017)? Within minutes, six requests (identification numbers 2015-18, 2015-65, 2016-122, 2016-126, 2016-129, 2016-130 - which were 784, 680, 309, 279, 250, 189 days old respectively) were responded to, in e-mails, and given "full denial." The Executive Officer explained: “... After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure ...”

I don’t believe Mr. Taylor should be able to “address” the backload of FOIA requests he has by cursory dismissal and summarily overturning 14-15 years of past practice. He should be required to do his job and keep that Office in compliance with FOIA."

Tuesday, March 14, 2017

OPA (Taylor) Poised to Waste More Tax Dollars

PBS reports that the Obama administration, in its final year, "spent a record $36.2 million on legal costs defending its refusal to turn over federal records under the Freedom of Information Act." This after much hot air about FOIA reform, being the "most transparent administration in history" and a presumption of disclosure. It was actually the "second consecutive year, the Obama administration set a record for times federal employees told citizens, journalists and others that despite searching they couldn’t find a single page of files that were requested." In addition, records were set for "outright denial of access to files, refusing to quickly consider requests described as especially newsworthy, and forcing people to pay for records who had asked the government to waive search and copy fees."

We know this routine well. William N. Taylor II "Executive Officer" of Office of the Pardon Attorney closed shop as President Obama engineered the greatest fourth year surge in clemency in American history. Taylor stopped answering our request (even as they sat with him for months, and years). He then stopped acknowledging that he was even receiving requests. Taylor then unilaterally denied requests for information granted by his Office throughout the entire Bush administration and part of the Obama administration.

Taylor has claimed he was too busy. He has claimed to have lost requests. He has pretended that information once routinely (and quickly) granted, suddenly required extensive discussions with many people. He has claimed that data now get buried / lost in a new electronic filing system and cannot be retrieved without incredible effort - effort which he is not able to expend - because he does not have to. Finally, to reduce the backlog of ignored/misplaced FOIA requests, he has simply denied, counting on applicants NOT to appeal his arbitrary and capricious decision making. See full story here.

Sunday, March 12, 2017

Plodding DOJ Reviews the Truant OPA

What is less than impressive than the Office of the Pardon Attorney ignoring FOIA requests for years, then changing its policy of transparency so it now no longer has to respond to them?


That would have to be the DOJ delaying its response to the "appeal" of the OPA's sloppiness:


Tuesday, February 14, 2017

Dear President Trump: Fire William N. Taylor, II

Clean the DOJ Swamp
"... This correspondence is in response to your Freedom of Information Act (FOIA) request dated December 18, 2015 and received in the Office of the Pardon Attorney (OPA) on February 13, 2017.  It appears that your original email was sent to our main mailbox at a time when the office was dealing with a deluge of mail as a result of this Office managing the Department’s efforts related to President Obama’s Clemency Initiative, so thank you for forwarding it to us again." - William N. Taylor II, Executive Officer, Office of the Pardon Attorney

A more appropriately edited version:

"... This correspondence is in response to your Freedom of Information Act (FOIA) request from years ago and received once again, thanks entirely to you, in the Office of the Pardon Attorney (OPA) on February 13, 2017.  It appears that your original email was sent to our main mailbox (as opposed to our Top Secret mailbox) at a time when the office was ignoring a deluge of mail (including all of your FOIA requests - which were previously acknowledged and fulfilled within days) as a result of this Office managing the Department’s efforts related to President Obama’s Clemency Initiative, and we just lost / deleted it, because we have those kinds of mad skills and, more importantly, because we can. So thank you for forwarding a second copy to us again. I now happily deny you the information that you got for 8 years of the Bush administration, and several years of the Obama administration. Because I think I can get away with it and would rather have you spend time with an appeal than me spend time provding a long-standing public service." - William N. Taylor II, Executive Officer, Office of the Pardon Attorney


Friday, February 10, 2017

DOJ Ditches FOIA for Obama Finale

For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max. Here is the history of a request William N. Taylor II "Executive Officer, Office of the Pardon Attorney" killed after 784 days.

December 17, 2014 - FOIA request filed.

April 10, 2015 - the records you request will “require a significant amount of time” to search, scan and redact.

July 20, 2015 - your requests have been assigned to “the complex track” and will “necessarily take longer” to be addressed.

Dec. 12, 2016 - "... those data points are captured in our electronic case management system. However, they are not easily exported out ... it would literally require a staff employee to manually open each electronic case file to copy and paste that information from the case file to a spreadsheet ... ... we do not have the funding or the manpower to accommodate such a request at this time.

... it would require some discussion with all of the stakeholders involved in the executive clemency process to see if they all would approve of having that information public even if we (OPA) could afford to take the project on.

Feb. 8, 2017 -  After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5), which concerns attorney work product protected by the deliberative process privilege.

Thus, William N. Taylor II covers the tracks of the greatest fourth year clemency surge in history, overturning 15 plus years of past practice in his own office, in Republican and Democratic administrations.

Wednesday, February 8, 2017

Time to Shut OPA Down.

Info Now Banned by DOJ / OPA
For years, the Editor of this blog has requested information on when granted clemency applications have been filed with the Office of the Pardon Attorney (OPA) and when they have been forwarded to the White House. While the information revealed absolutely nothing about the content or merit of particular applications, reasons for clemency, reports, inter-agency communications, or anything at all substantive re the deliberation process ... it did provide relevant factual information on the flow of successful applications through the clemency process.

These FOIA (Freedom of Information Act) requests were granted to the Editor through the entire administration of George W. Bush (eight years) and the Obama administration as well, for the better part of six years, until April of 2015. Indeed, the requests were routinely sent, acknowledged by OPA and fulfilled by OPA in a matter of weeks ... two or three weeks max.

Then, William N. Taylor II "Executive Officer" of OPA simply stopped responding to our FOIA requests. He then stopped acknowledging that they were being received at all. Consequently, we have waited - quite literally, for years - for any indication whatsoever that his Office is of the opinion that FOIA law applies to its work. The previous pardon attorney (Robert Zauzmer) recommended that we simply wait until the Obama administration was over.

Info Now Banned by DOJ / OPA
Of course, by the time he left office, President Obama set a record for commutations of sentence and engaged in the largest 4th year clemency surge in American history. Media reports suggested clemency officials were working well into the night, over the weekends and during holidays, trying to bust their way through thousands of applications. Nameless, faceless bureaucrats in the administration that promised greater transparency, and greater cooperation with FOIA requests in particular, simply shut the doors, at the worst possible time. Because they could.

This evening (February 8, 2017), we sent an e-mail to OPA, politely inquiring whether or not it intends to knowledge / fulfill FOIA requests this year (2017)? Within minutes, mere minutes (!), six of our FOIA requests (189, 250, 279, 309, 680 and 784 days old) were given e-mail responses. A Christmas miracle! And they were all given - for the first time ever - a "full denial." The Executive Officer explained:
... After carefully considering your request, I have determined that if any such records do exist, they are exempt from disclosure ... 
The Executive Officer of OPA does not know if data exists in his own office any more? Who knows what other critical data they lose, or do not know they have? Causally recognizing its god-awful work in recent years, the OPA says:
We expect that our FOIA and Privacy Act response times will increase quite drastically during the spring of 2017.
Indeed. Looks like that Office will be "going through" FOIA requests, in 2017, like it did commutation applications in 2016. No easier way to cut through a backlog of requests than flippant summary denials. We are "appealing" the request, but, well, you know ...

Wednesday, January 18, 2017

McCovey Pardon?! We Just Won't Know ...

Peter Yarrow (of Peter, Paul and Mary) once applied for a presidential pardon on December 10, 1980, and got one, from Jimmy Carter, on January 19, 1981. He offense was committed in 1970. The cynic might guess the speedy process of mercy - in his case - was at least partially explained by fund raising prowess, fame and connections in the Democratic Party. But, we all know how cynics are.

Now, just days before President Obama leaves office, a pardon is granted to San Francisco Giant Hall-of-Famer Willie McCovey. Who on earth saw that one coming? How interesting it would be to know when Mr. McCovey filed his application? How long did he have to wait? Many have waited years ... many, many years. Did McCovey?

In the Bush administration, you could write the Office of the Pardon Attorney, and they would provide you with information on when applications were filed and when they were forwarded to the White House. A FOIA request for that information might take you might take 10 to 15 days to process, at max. They would e-mail it all, right to your home.

Monday, January 16, 2017

The Times: Deep on PR, Concern. Shallow on Insight.

Eric Lichtblau has a piece at the New York Times which is odd in so many ways. He notes, among other things:
And in his final week in office, Mr. Obama is likely to grant commutations to shorten the prison sentences of still more nonviolent drug offenders, officials said. He has already issued more than 1,000 commutations — more than the number issued by the prior 11 presidents combined, according to the White House.
This is, of course, the now-tiresome White House PR mantra, which ignores the fact that 1) previous presidents had miserable records re commutations of sentence 2) Obama has had - and denied - many more commutations than his immediate predecessors combined and 3) Obama's record on pardons is, in fact, quite ugly. Nor is there any mention of the fact that most of these commutations have popped up in the last two years of the term and that President Obama is currently engaged in the greatest last-minute clemency spurge in history (it's not over).

But more - yes, more - than all of that ... it is utterly amazing that someone could write on this topic, in the New York Times (!!!), and not say a single word, nothing, about the Attorney General's recent claim that the President of the United States does not have the power to grant a group pardon, or an amnesty, on behalf of many thousands of persons who are similarly situated. A bizarro idea seemingly shared by the President himself! That's really the only thing anyone should be writing about on this topic at present. Instead, Lichtblau writes:
But that legacy is about to come under quick siege with the incoming Trump administration’s “law and order” platform, as Senator Jeff Sessions of Alabama, President ­elect Donald J. Trump’s nominee for attorney general, made clear last week at his confirmation hearing ...
Well, plenty of time to focus on what is ahead. Let's focus on right now, and how right now shapes what is ahead. President Obama did nothing - zero - in terms of reform, institutional change re the pardon power. It still sits in the basement of DOJ, manned by career prosecutors. They were experts at saying "no" before Clemency Project 2014 and they will clearly retain that expertise when President Obama leaves office. To boot, they will get to those FOIA requests, if they think they have enough time, after a discussion ... and their new "electronic" case filing system is ... updated!

Lichtblau is surely right. Obama's ideas will leave with Obama. Shocking.

That is exactly why Obama should have focused on real, lasting change more so than a loud, last-minute belch of mercy. Trump and Sessions will inherit the same DOJ / OPA Obama inherited from his predecessors. They will inherit the same clemency process as well, the one that was so lame that a small pile of commutations and pardons here and there will amount to "records" and "history making."

It would not be surprising at all if Trump waited for an eternity to grant the first pardon or commutation of sentence of his term - just like Obama. It would not be surprising at all if Trump saves clemency for Christmas and/or the very end of the term - just like Obama. It would not be surprising at all if Trump denies the vast majority of applications - just like Obama.

Whose fault is all of that? Plenty of blame to share. Plenty. See Lichtblau's full editorial here.

Saturday, December 17, 2016

Eggleston Spikes Ball. Bounces Wrong

(Editor's Note: Please explore the data links in this piece.

President Obama waited longer than any Democratic president in history to grant the first pardon of his administration. Only one other president, of any party waited longer.

Obama's first term - featuring 22 pardons and 1 commutation of sentence - was the least merciful term since George Washington's first.

Well into his second term, Obama's DOJ - officially, with great aplomb - called for more clemency applications ... when it was already getting record numbers of them. Commutation applications in particular were outsourced to Clemency Project 2014 (an independent, unaccountable, non-transparent collection of lawyers).

The Office of the Pardon Attorney - begging for more funds/resources - instituted a new "electronic file system" that actually provides less convenient access to information than when the staff in that office got up from their desks, went for a walk, and hand-wrote notes on outside of file folders with a freaking pencil ! To retrieve information - once so immediately accessible - now requires "an expensive undertaking," if not additional "custom" development of the "system."

Monday, December 5, 2016

OPA FOIA Fail. Where's Holder When You Need Him?

It seems like ages ago when President Obama issued a presidential memorandum on FOIA that called on agencies to "usher in a new era of open government."  Federal agencies would have a presumption of disclosure and not simply withhold information because they could do so. Obama directed Attorney General Eric Holder to issue new FOIA guidelines reaffirming the government’s commitment to accountability and transparency. Said Holder:
"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner ... The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."
Click on Image (Above) to Enlarge
The Editor of this blog confesses that he did not have all of this fanfare in mind 716 days ago, when he filed a FOIA request with the Office of the Pardon Attorney (Department of Justice), almost identical in form and content to at least a dozen others (in the administrations of both George W. Bush and Barack Obama - see figure to the right). But years passed (literally) and, eventually, the Office of the Pardon Attorney - in addition to not fulfilling FOIA requests - stopped acknowledging altogether that it was even receiving them.

So, the Editor contacted his U.S. Senator, Dick Durbin and asked for assistance. In a letter to Senator Dick Durbin, dated August 22, 2016, Executive Officer William N. Taylor II, explained that the Office of the Pardon Attorney (OPA) was just too busy for FOIA stuff. He said the OPA "has been unable to process many FOIA requests" or even so much as "respond" - at all - to "non-case related correspondence of any kind." Taylor condescendingly noted that he can "appreciate" an "inquiry" here and there, and the "desire for information." But he insisted that it was simply "impossible at this time" to respond to such requests. Mr. Taylor anticipated that, "at the end of the Administration," the Office of the Pardon Attorney will "once again begin processing pending FOIA requests."

Yes, he actually wrote that!

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.

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?

Tuesday, November 1, 2016

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.

Thursday, October 27, 2016

"Last-Minute" Clemency Has a New Face

"Last-minute" clemency is a term of art. How last-minute is last minute? Bill Clinton did his controversial gig in the final hours. John Adams stretched the nightmare out a bit. Evidently, George Washington did his routine almost literally as he was going out the door.

One standard way to approach the topic is to look at 4th year clemency - or, as we have done, calculate the percentage increase between the average number of clemency grants in years 1-3 and the number of grants in the fourth and final year of the term. By this measure, President Obama's second term represents the greatest last-minute clemency surge in American history.

Click on Image (Above) to Enlarge
While it is true that most presidents have granted the largest number of pardons and commutations in the 4th and final year of the term, it is not true that President Clinton's antics were "business as usual." His kind of dramatic last-minute surge was not the norm.

It might be argued that President Obama's grants are not "last-minute" in any normal sense of the language because they are the by-product of a grueling application process "revamped" via Clemency Project 2014. It would certainly be interesting to trace the progress of applications through the federal bureaucracy - something we used to be able to do - see posts here and here). But the Office of the Pardon Attorney (DOJ) stopped accepting (or even acknowledging the receipt of) FOIA requests way back in 2014 (see post here).  Thus, there is simply no way to make even superficial assessment of the deliberative nature of the clemency process in this historic last year of the Obama administration.

Monday, August 29, 2016

OPA: Forget About FOIA till Obama Leaves Office

In recent years, we have observed that the OPA has stopped providing materials we have sought through FOIA requests. Previously, a dozen such requests were all acknowledged and fulfilled within 1 to 15 days - even as OPA was receiving record numbers of clemency applications.

President Obama then "revamped" and stream-lined a new, more efficient OPA. The result was that similar requests were suddenly upgraded as being more "complex," time-consuming affairs.  In recent months, the OPA has simply stopped acknowledging the receipt of our FOIA requests altogether.

In a letter to Senator Dick Durbin, dated August 22, 2016, Executive Officer William N. Taylor II, stated that the Office of the Pardon Attorney "has been unable to process many FOIA requests" or even so much as "respond" - at all - to "non-case related correspondence of any kind." Taylor condescendingly noted that he can "appreciate" (the trendy politico synonym for "enthusiastically ignore") an "inquiry" here and there, and the "desire for information." But he insisted that it is simply "impossible at this time" to respond to such requests.

Mr. Taylor does anticipate that, "at the end of the Administration," the Office of the Pardon Attorney will "once again begin processing pending FOIA requests." Yes, he actually wrote that.

Transparency! ... when Obama leaves!

Tuesday, August 2, 2016

Keys to Eggleston: Get Me Clemency From Obama!

Matthew Keys
Josh Gerstein (Politico) writes that Matthew Keys, "a California-based journalist facing a two-year prison term after being convicted in a hacking case," is looking for help from President Obama. More specifically, Keys - who maintains his innocence - is entering prison for:
" ... posting login credentials for a Tribune Co. publishing system in an online forum used by members of the hacking group Anonymous. At a trial last fall in federal court in Sacramento, a jury convicted Keys of three felony counts of violating the Computer Fraud and Abuse Act. over the episode, which led to a news story on the Los Angeles Times website being briefly defaced."
Notably, Keys is not not making his play to the Office of the Pardon Attorney, in the Department of Justice, where record numbers of applications are being denied, closed, or left pending and the receipt of FOIA requests are not even recognized, much less addressed.

No, Keys addressed his letter to White House Counsel Neil "Starving and Sleepless" Eggleston and - Gerstein tells us - argues his crime was "relatively innocuous" and his sentence "is wildly excessive." Keys wrote:
 "Although I do not understand the nuances of law, I am aware that at this point only presidential intervention in the form of a commutation of sentence or a presidential pardon can prevent the execution of this draconian sentence ... Therefore, I respectfully request your assistance in advocating on my behalf for President Obama to review my case and consider using any and all executive powers afforded to him in preventing my scheduled incarceration and any other provision of the sentence for his he feels is unjustified and unwarranted. Doing so would not only reverse what many consider to be an unwarranted sentence triggered by an overzealous prosecutor based on a draconian and outdated law, it will allow me to continue serving the public as a journalist." 
See Gerstein's full story here.

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