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July 14, 2007

Understanding the difference between clemency law and clemency symbolism

Over at his interesting blog Pardon for Scooter Libby?, P.S. Ruckman, Jr. has this extended post dissecting the written testimony I submitted to the House Judiciary Committee for its hearing this past week on Bush's commutation of Libby's sentence (background here and here).  Most of Ruckman's critiques would be more fitting were I writing a scholarly article and not simply sharing perspectives with members of Congress, but I am still grateful for his thoughtful exploration of my thoughts.

Though I have little quibble with many of Ruckman's specific points, I see a conceptual flaw in a lot of his commentary.  Ruckman treats my comments as if I was making assertions about federal clemency law, but I ultimately share his view that the federal clemency power operates outside the realm of law.  My testimony about the puzzling and potentially harmful aspects of Bush's commutation is principally about the symbolism of the President's sentencing decision and assertions on behalf of Libby, especially against the backdrop of the Bush Administration's broader sentencing policies and practices. 

Everyone should and must understand that the Bush commutation has no formal legal impact on other cases.  But the symbolism of the decision — and especially the reasons given by the President for his decision — will surely have some impact (at least subconsciously) on sentencing decision-makers and the general public.

July 14, 2007 at 12:05 PM | Permalink

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Comments

I think that it would be a waste of time to spend much time on Mr. Ruckman's analysis, as opposed to his knowledge of pardoning anecdotes, which can be interesting or amusing, although besides the point with respect to this blog.

He repeats over and over points that are obvious to anyone versed in criminal procedure or constitutional law as though he had arrived at something everyone else is either disputing or has missed, i.e.:

the pardon power is grounded in the actual text of the Constitution; the pardon power cannot be restricted, in any way, by either the legislative or judicial branch; pardons .... on the other hand, can be granted for any reason; presidents do not need to give any reasons at all for a pardon.


This is all information of the painfully obvious sort and Ruckman refuses to acknowledge that most of the interest in the commutation by people in the criminal justice field is due to the fact that Bush derided the exact sentencing positions carefully espoused by Gonzalez and the Justice Department, as well as the Republicans in Congress, which will make it much harder for the GOP to advocate higher sentences in the future or to further restrict judicial discretion in sentencing.

Rather than deal with such likely real world aspects of the Bush commutation, Ruckman falls back on two limpless arguments, that all presidents have done it equally gracelessly and that there is nothing that Congress can do anyway, so there!

In fact, that are many statutory steps that Congress could take, even short of the obvious step of amending the constitution to remove or alter the pardon power or impeaching the president, to regulate the President's use of the pardon power. While none of these statutory steps could abolish the pardon power, they could make it plenty painful for the president in the event of corrupt use of the pardon power.

Ultimately, my goal is to see fewer people such as Scooter Libby in prison and thus, I approve of ample and considered use of the pardon power. The ultimate irony here is the people on the right who love this exercise of the pardon power but are loathe to see either it or the arguments Bush used in issuing it applied in any other contexts.

Posted by: william | Jul 14, 2007 1:05:08 PM

I doubted this view at first, but Judge Walton's excellent opinion, and his discussion of precedent, changed my mind. Like the US Attorney firings, this isn't about whether the President has the power to do something, but whether that discretion is exercised in a principled way. The unprincipled use of governmental power should be a cause for concern by citizens in a democracy, beyond the question of whether or not the power used was Constitutional.

Posted by: Mark Osler | Jul 14, 2007 1:15:24 PM

As a first time convicted felon, (White Collar-non violent)with a restitution that can never be repaid in full. I honestly don't believe the president will give me a pardon, but Charlie Rangel 2nd chance act may give me a chance. Why there are no pressure on congress to pass this bill. All the times spent on questioning Bush motive should be spent on taking advantage of this opportunity. I think it would be hard press on the President to not sign this bill.

Posted by: Joe | Jul 14, 2007 1:30:52 PM

> Ruckman refuses to acknowledge that most of the interest in the commutation by people in the criminal justice field is due to the fact that Bush derided the exact sentencing positions carefully espoused by Gonzalez and the Justice Department, as well as the Republicans in Congress

Well, I would rather not "acknowledge" it. I would rather have it said, outright and explicitly. As opposed to have it masked in language like "both parties" and fueled by the false premise that Democrats have not played a major role as well.

A good partisan argument should disrobe itself of legal garb and professional jargon, grab a handful of sand and jump into the box.

> Ruckman falls back on two limpless arguments, that all presidents have done it equally gracelessly and that there is nothing that Congress can do anyway, so there!

Of course, neither is an argument. And, in addition, I do not even agree with the second position. At least not in the awkward manner in which you have presented it. Who on earth would? You can Google me better than that, can't you?

> In fact, that are many statutory steps that Congress could take, even short of the obvious step of amending the constitution to remove or alter the pardon power or impeaching the president, to regulate the President's use of the pardon power.

Yes, speaking of over-stating the obvious!

> Ultimately, my goal is to see fewer people such as Scooter Libby in prison.

I'm guilty of having no such goal.

> The ultimate irony here is the people on the right who love this exercise of the pardon power but are loathe to see either it or the arguments Bush used in issuing it applied in any other contexts.

Truly. The drive to give a policy-like, class-action, retroactive component to an individual act of clemency still strikes me as absurd. The Libby Plea. Brother.

Sorry I had no fun, beside the point anecdotes for you this time around. :-)

Posted by: PSRuckman | Jul 14, 2007 4:23:41 PM

"In fact, [there] are many statutory steps that Congress could take . . . to regulate the President's use of the pardon power. While none of these statutory steps could abolish the pardon power, they could make it plenty painful for the president in the event of corrupt use of the pardon power."

Really? What statutory constraints could Congress place on the president's exercise of the pardon power, short of a formal amendment? Isn't that precisely what they can't do? See, e.g., Ex Parte Grossman, 267 U.S. 87, 120 (1925) (“The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals or by classes, conditionally or absolutely, and this without modification or regulation by Congress.”).

Posted by: Sam | Jul 14, 2007 4:31:38 PM

Again, his wording was awkward. But see my commentary here:

http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/JEdit.htm

(Sorry, it starts with one of those irrelevant anectdotes :-)

Posted by: PSRuckman | Jul 14, 2007 5:01:55 PM

Prof. Ruckman,

In your commentary, you state, "I take the position that the pardoning power can be limited in effect, without legislation and constitutional amendment [by making] the process more transparent. Report the names of those who apply for, and receive, clemency. Report the exact date of clemency decisions. If Presidents offer explanations for decisions, report them. Report what percentage of clemency recipients go through the 'normal' channels."

I agree that a greater degree of transparency about the reasons for the president's clemency decisions would, in effect, act as a constraint on his decision-making. All of the discussion about Bush's ostensible reasons for commuting Libby's sentence is a good illustration of how that process might work, as was the debate about Clinton's stated reasons for some of his more controversial grants. But the relevant point is that Congress could not force the president by statute to publish his reasons for granting clemency in particular cases, and the DC Circuit has held (correctly I think) that the Department's advice to the president in clemency cases (which you may safely assume is most often followed) is privileged and thus need not be disclosed, at least for a substantial period of time.

Finally, the names of persons who have been granted clemency are routinely made available at the time of the grant and thereafter upon request. (See also http://www.usdoj.gov/pardon/recipients.htm). To my knowledge, the last time a pardon was granted without a public announcement was at the end of the Truman administration.

By the way, it is possible to disprove my assertion that that the president typically follows the Department's advice, but it would entail spending many hours pouring over old clemeney recommendations that have been released by NARA. I invite anyone to take up the challenge.

Posted by: | Jul 14, 2007 6:06:26 PM

Oh, I think I was very clear to state that "reasons" should be printed IF they are provided. As a social scientist, like Humbert, I would view whatever reasons were given (by ANY president) with great skepticism anyway. I would never hold a hearing on the stated reasons for a clemency decision. I would be banned from political science - or, at least the better part of the discipline.

Yes, there was a show about greater transparency when Eisenhower came in but, if you read up on his big entrance, you will see his administration was more talk than action. The Annual Report of the Attorney General remained useless to researchers and information on pardons was made available to reports only if it were a matter of public interest.

As for the link you provided ... Where is the list for Reagan, Ford, Nixon, or any other president? The lists that are on that site first showed up about 2 months after Clinton left office. And, again, they are nowhere NEAR as informative as the Annual Report of the Attorney General used to be.

Another thing that has changed since I wrote the piece you read is that the Pardon Attorney has combined Microfilm Set T967 with clemency warrants post 1932 on CDs for those who are interested. I have discovered missing warrants in that data set however. So, things remain tough all over.

I have no problem with anyone asserting that the typical clemency decision is the result of "following the Department's advice." What I do have a problem with (a very big problem) is partisans and pile-on media attention-grabbers asserting, or implying, that a president (any president) has gone against such advice to an unusual degree without a scrap of data. It is high time for that sort of mindless goo to be purged from discussions of clemency.

A similar situation: in the aftermath of the Clinton exit, it was all the rage for pardon "experts" to appear here and there, saying last-minute pardons were rare, unusual, not a common thing, unprecedented, blah blah blah. It was great for news and just what partisan critics wanted to here. Unfortunately, it was completely false. The data have since spoken and it would be nice to hear it speak on a lot of other things.

In sum, on the informaton super-highway, we may have gone forward a mile, after having driven backwards 15.

Posted by: PSRuckman | Jul 14, 2007 7:20:19 PM

Bush is a hypocrite and so are many of the Republicans supporting him on this. What else do we need to know?

Nothing.

Really, a name change to the Rehypocrite Party is all that is lacking.

How's that for symbolism.

Posted by: George | Jul 14, 2007 10:08:57 PM

George, the web address for dailykos is www.dailykos.com

This blog is run by a law professor, deals with somewhat complicated legal issues and other questions, and is frequented by people who would seldom, if ever, answer the question "hat else do we need to know" with "Nothing."

If you'd read the post (I assume from your comment that you read the words "Libby" and "symbolism" and then decided to post a comment), you might notice that the discussion is about what implications the Libby pardon might have on the criminal justice system.

To put it in terms you might be able to understand, some people wonder if some good might come from this if people were to take Bush at his word, regardless of whether he was sincere.

Posted by: | Jul 14, 2007 11:48:53 PM

Dear |,

Yes, some good will come of it because he doesn't believe what his administration has touted all this time he has been in office, nor does the Republican party believe it 100%. That is hypocrisy.

And I dare say that the reason this has gone on since the 80s, the reason the Republicans have controlled the debate, despite Foley, despite Nifong, despite Libby, is because few would ask and answer the real questions.

Is it hypocrisy or not? Do they really believe it or not?

Yes, Nifong is a Democrat, but the real point is the Republican effort, for years now, to use the memes of federalism and "activist judges," when it suited them, to tilt the balance of power in favor the legislatures and the executives, both state and federal. It was carefully planned.

The problem with that is the courts are the keepers of the Bill of Rights, and I sincerely believe that because of the political hypocrisy the courts are afraid to do their duty in many cases.

Let's quit pretending criminal law isn't a political football and call it like it is.

P.S. In no way do I mean to offend our host and in fact have a great deal of respect for all he does here and elsewhere, and for all the posters, even federalist. :) So I'll refrain from being quite so blunt even though I meant every word. I've learned a great deal here even if the law is still a lot like sticking my head in a big bowl of spaghetti. Seriously, how can law be a deterrent if so few can understand potential sentences?

Posted by: George | Jul 15, 2007 4:23:20 AM

Dear |,

Yes, some good will come of it because he doesn't believe what his administration has touted all this time he has been in office, nor does the Republican party believe it 100%. That is hypocrisy.

And I dare say that the reason this has gone on since the 80s, the reason the Republicans have controlled the debate, despite Foley, despite Nifong, despite Libby, is because few would ask and answer the real questions.

Is it hypocrisy or not? Do they really believe it or not?

Yes, Nifong is a Democrat, but the real point is the Republican effort, for years now, to use the memes of federalism and "activist judges," when it suited them, to tilt the balance of power in favor the legislatures and the executives, both state and federal. It was carefully planned.

The problem with that is the courts are the keepers of the Bill of Rights, and I sincerely believe that because of the political hypocrisy the courts are afraid to do their duty in many cases.

Let's quit pretending criminal law isn't a political football and call it like it is.

P.S. In no way do I mean to offend our host and in fact have a great deal of respect for all he does here and elsewhere, and for all the posters, even federalist. :) So I'll refrain from being quite so blunt even though I meant every word. I've learned a great deal here even if the law is still a lot like sticking my head in a big bowl of spaghetti. Seriously, how can law be a deterrent if so few can understand potential sentences?

Posted by: George | Jul 15, 2007 4:23:58 AM

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