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January 7, 2009

Senator Specter refines the case against AG-nominee Holder

As detailed in this New York Times article and this BLT post, Senator Arlen Specter has started to define the terms of the debate for next week's confirmation hearing for Attorney General Nominee Eric Holder.  Here are the basics from The BLT:

Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, has begun laying out the questions he plans to ask Eric Holder Jr. next week during Holder’s confirmation hearing to be attorney general.

In a speech on the Senate floor Tuesday, Specter (R-Pa.) said he plans to focus his inquiry on three areas: the pardon of fugitive commodities trader Marc Rich; the decision by Holder’s then-boss Attorney General Janet Reno not to appoint a special prosecutor to look into Vice President Al Gore’s 1996 fundraising activities; and the clemency granted to a group of Puerto Rican nationalists.

“All of these matters relate to judgment,” Specter said. “They relate to whether Mr. Holder had the kind of resoluteness displayed by Attorney General Griffin Bell, by Attorney General Elliot Richardson, to say ‘no’ to their superiors.” Specter also said he plans to ask Holder his views on journalists’ privilege, the Bush administration’s surveillance policies, and the Justice Department’s evolving view of corporations’ attorney-client privilege.

The fact that two of the three top-shelf concerns involve clemency issues perhaps provides more support for my view that the entire US Pardon Office ought to be completely removed from the Department of Justice.  (Specifically, I would like to see the Pardon Office relocated as a department in the US Sentencing Commission.) 

Also, it is telling and disappointing that Senator Specter does not have on his question list a number of other critical practical questions about the federal criminal justices system.  Indeed, I wonder if Holder will get any questions on, e.g., the post-Booker sentencing system or sex offender prosecutions in light of the new federal Adam Walsh Act or crime victims rights in light of the new federal Crime Victims Rights orfederal habeas a decade after the AEDPA or the federal death penalty in light of increased capital prosecutions during the Bush Administration or federal reentry efforts in light of the new Second Chance Act.

Some prior posts on the Obama transition and the Holder pick:

January 7, 2009 at 10:31 AM | Permalink


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"Specifically, I would like to see the Pardon Office relocated as a department in the US Sentencing Commission.)"

Why? I can't think of a single positive benefit from doing so.

Posted by: Daniel | Jan 7, 2009 10:55:05 AM


The reason for moving the pardon office out of DOJ is that it has become little more than an arm of the prosecutors, with virtually no meaningful review of commutation cases and unreasonably strict review of pardon cases. Everyone agrees that the prosecutors should have a voice, but they shouldn't have the only voice. Since DOJ has an inherent confict in every clemency case and since the Pardon Attorney has demonstrated an inability or unwillingness to act with even a modicum of independence, the hope is that reconstituting the office elsewhere would restore a sense of balance. There is no corresponding downside, since the investigative part of the process could function essentially as it already does, but the resulting advice would be impartial.

Posted by: Anon | Jan 7, 2009 12:47:32 PM

I don't care where the Pardon Office ends up as long as it's moved OUT of DOJ. Prof. Berman is absolutely right on this score. As a 19-year AFPD, I have seen firsthand how ridiculous the current system is (regardless of which party is in power).

Posted by: AFPD | Jan 7, 2009 1:42:39 PM

DOJ has an inherent confict in every clemency case

How so? Most people who want pardons were convicted by state prosecutors.

Posted by: | Jan 7, 2009 2:13:38 PM

Two things,

One, the President has zero power to set aside state court convictions, so I'm not sure what the previous commentor was trying to get at.

Two, wouldn't moving the padron attorney to USSC further bastardize an already troubling buerocratic assignment? I would find it extremely odd for a power invested solely through executive power to be routed through a nominally judicial branch office.

Posted by: Soro | Jan 7, 2009 3:27:49 PM

Just move the Pardon Office to the White House and staff it with former federal defenders as well as former federal prosecutors (as I believe Prof. Berman suggested in a prior post). I'll volunteer for the job!

Posted by: AFPD | Jan 7, 2009 3:41:56 PM

AFPD. Your policy is the one that makes most sense to me, if it needs to be moved. The White House. The pardon power is one of the very few absolute powers the President has. The closer that power is vested in him, the greater the political accountability. I'm sorry but the decision to pardon someone is first and foremost a political decision, not a criminal justice decision. Moving that power even further away from the President just makes the political connection between the power and the deed more tenuous. I understand where Doug is coming from but I think his suggestion will in the long-run make matters worse rather than better. The goal should be to increase political accountability, not lessen it.

Posted by: Daniel | Jan 7, 2009 4:25:11 PM

"the decision to pardon someone is first and foremost a political decision, not a criminal justice decision"

In the garden-variety case, which accounts virtually the entire federal clemency caseload, this is certainly an exaggeration, if you mean that overt political considerations play any role in the evaluation of petitions. Anything the president does has a political component, to be sure, but that's just not how the process works. I would say that such decisions are a matter of applied ethics, if you will, and there is no necessary conflict between politics and morality, as if they are mutually exclusive categories. In other words, the the Constitution gives the president a moral duty as chief executive to grant clemency in appropriate cases.

Posted by: Anon | Jan 7, 2009 5:44:41 PM

"In the garden-variety case, which accounts virtually the entire federal clemency caseload, this is certainly an exaggeration"

I don't think it's an exaggeration so much as a different way of conceptualizing the problem. In a democracy, the president is first and foremost an elected offical. His power is directly the outcome of a political process. As such, he is first and foremost a political actor. This issue was debated at the Constitutional Convention and the title of "Chief Executive" was explicitly rejected. He is not the CEO of the government, even if in certain situations he fulfills that role. The power the president wields is a political power, not a managerial one.

Now, to what extent a specific clemency decision is effected by political positioning (as opposed to abstract moral and ethical considerations) I have no idea. That knowledge is something that by necessity would be between the President and his/her own conscious, since the final decision on such matters rests with the President alone. I suspect that pardons are granted for a variety of reasons and that in some situations political considerations play a major role and in other cases they play a lesser role. Certainly, as recent events have clearly illustrated, Presidents pay attention to how their pardon decisions are greeted by the public (as it should be.) Thus, all pardons have a political affect, it just differs in magnitude.

Posted by: Daniel | Jan 7, 2009 10:12:21 PM


I'm not sure we disagree, or at least not very much. But if the decision in a pardon case is a matter of the president exercising his conscience, as you suggest, then it involves making a moral choice. That's true, it seems to me, even if the president is motivated by larger political considerations. Acting in the public interest, after all, is also a moral choice. E.g., Ford's pardon of Nixon, Carter's proclamation, etc. I also don't think the rationale for most clemency decisions is quite as mysterious as you think, although the process certainly could be more transparent.

Posted by: Anon | Jan 8, 2009 4:29:43 AM

"Acting in the public interest, after all, is also a moral choice."

Agreed. My only point is that insofar as the power to make that choice stems from a political system, it can never be *primarily* a moral choice. It is always first and foremost a political choice.

Posted by: Daniel | Jan 8, 2009 1:18:25 PM

Daniel, I guess you're right. By analogy, a judge certainly engages in a morally laden exercise when he sentences a defendant in the first instance, though he only acts in his capacity qua judge. This means that he sometimes imposes a sentence the law requires, even if his own sense of justice tells him its wrong, because the legal powers of a district court are limited in that way. If he thinks a sentence is so wrong he can't impose it in good conscience, then he has to stop taking criminal cases.

Similarly, the president is authorized, by virtue of his office, to take a second look at federal criminal sentences and to restore civil rights. While his discretion is necessarily informed by his own sense of justice and compassion or whatever, he only acts qua president. And while the pardon power is much more open-ended, at least in theory (and setting aside problems of proof), the president isn't permitted to exercise the power ways that, say, violate the Equal Protection Clause or the Due Process Clause (see Schick, Woodard). The only reason I'm resisting your way of putting it is that I think it might mislead some into beliving that crass political considerations drive these decisions, which I'm confident is usually not true (though it certainly is true in some cases, e.g., Libby, Toussie).

Ideological considerations of a different sort drive DOJ's recommendations, however, which is why the function should be moved. By the way, I agree completely that the obvious place to move the clemency program, if it's to be moved, is the Executive Office of the President.

Posted by: Anon | Jan 8, 2009 4:53:45 PM

Anon, how can the president violate the Equal Protection Clause?

Posted by: federalist | Jan 8, 2009 4:57:06 PM

federalist, use your imagination. If the president made clemency decisions on the basis of, say, invidious racial generalizations about clemency applicants, wouldn't that arguably violate the EPC?

Posted by: Anon | Jan 8, 2009 5:44:03 PM

Given that the EPC only applies to state action, seems like a stretch to me.

Posted by: federalist | Jan 8, 2009 9:59:20 PM

Fair enough. All of this is sheer theory anyway, since its hard to see how it could ever be proven. Would due process work better?

Posted by: Anon | Jan 9, 2009 3:03:07 AM

The answer is, that as a practical matter, courts couldn't do anything about it. Let's say that the President said something to indicate that his pardon power was being exercised on the basis of race . . . . what are you going to do, release everyone? Have courts rescind pardon for the people that got the race-based pardons? The pardon power is virtually unreviewable (I would argue that bribery would be an exception.)

Posted by: | Jan 9, 2009 10:27:43 AM

I don't see even bribery as an exception, it would simply be a new offense, chargable against both the President and the pardon recipient. The bribery obtained pardon should still be valid however.

Posted by: Soronel Haetir | Jan 10, 2009 11:09:17 AM

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