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July 5, 2007

Presidential pot to kettle: "your clemency decision is so black"

Goenglish_com_thepotcallingthekettlI have never been much of a Bill Clinton fan in part because his presidential criminal justice record was so disappointing.  As noted here, President Clinton supported and signed legislation that increased the severity of federal and state sentencing terms, broadened the applicability of the federal death penalty, and sharply restricted habeas corpus rights for prisoners.  And, Bill Clinton's highly suspect pardons on his final day in office tarnished the reputation of executive clemency power and provided another ugly mark on Clinton's overall criminal justice record.

Consequently, I am a bit disgusted by this news report that Bill Clinton has now "blasted his successor's decision to spare former White House aide Lewis 'Scooter' Libby from prison."  Putting aside the fact that Clinton himself avoided any formal criminal charge for his own alleged perjury and obstruction of justice, Clinton's efforts to attack President Bush for his commutation strike me as a classic example of the pot calling the kettle black.  Of course, strong partisans on both sides can (and likely will) say that the other team has an uglier clemency record.  But, quoting another Bill in this setting, I say to Clinton and Bush "a plague on both your [white] houses."

UPDATE:  This strong USA Today editorial hits all the right points when noting that politicians on "both sides are long on sound bites and short on ethical consistency."  Here is the closing thoughts from the editorial:

Is Libby a threat to the public who needs to be confined? Obviously not. Is his attempt to con a grand jury in order to protect an administration unique?  Sadly, that also is not the case, as the Clinton and Nixon administrations so amply proved.

The important question in the Libby case was whether Bush could rise above that sickening precedent.  He failed, and the message that's left is unmistakable: If you stand in the way of justice, you can get off easy if you have a friend in the White House.

As noted in this prior post, the Federal Sentencing Reporter in 2001 produced a special double issue on pardons (on-line access here) which examined Clinton's ugly end-of-term pardons and explored the history and practicalities of executive clemency  more generally.  FSR's publisher has made several articles from that issue available for free on the linked site.

July 5, 2007 at 12:53 AM | Permalink


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Jeralyn at TalkLeft once posted that during a meeting with Left bloggers, Bill Clinton said he regretted some of the crime laws he signed. Some of TalkLeft's readers didn't buy it and thought it was too little, too late. But I believe it at least somewhat because of his signing statement for the Antiterrorism and Effective Death Penalty Act of 1996, where he said the intent was not to limit habeas corpus like it has been limited since.

He should have vetoed it. How though? We as a nation were suffering grief and a panic attack after the Oklahoma City bombing and the Right loves to pounce when the nation is vulnerable like that.

Posted by: George | Jul 5, 2007 3:24:39 AM

Clinton regretted it? He should have shown a little moral courage. I guess it is hard to show something you don't have. I am a student of history.

Posted by: Red | Jul 5, 2007 8:26:00 AM

He was talking out of both sides of his mouth with regard to the AEDPA. I voted for him both times. Along with the AEDPA, there were too many negative things about his administration. I cannot see myself voting for his wife.

Posted by: Tim | Jul 5, 2007 10:08:33 AM

While the similarities are there, lets not forget the Bush did NOT offer clemency to Libby. He commuted the sentence. There is a fair difference in the two.

Posted by: Tristan | Jul 5, 2007 10:32:34 AM

Is Libby a threat to the public who needs to be confined? Obviously not.

By failing to confine him, does the public allow his crime to continue unabated? Obviously. It's like he's a pedophile who has promised he'll never do it again, but he STILL HAS HIS HAND IN YOUR DAUGHTER'S SHORTS. His obstruction is a continuing crime. Is he a threat to the public? Maybe not, but he's getting away with it right now.

What kind of justice is it that lets you have the first one for free? If I raped your mother, and I was caught, tried, and convicted, how would you feel if I walked away a free man just because I was a first time offender or because Bork wrote a mash-note to the judge? Or if my friends gave interviews saying "well, he couldn't have done that, it's just not like him." The idea is preposterous. Libby has raped our justice system, and George Bush is raping the Constitution. Why should the public reaction be any different?

The injury that Libby has wrought on the American public still stands, and by failing to appropriately punish him, George Bush has destroyed any possibility that Libby will correct his lies and testify truthfully.

The hypocrisy is stunning. If Libby were captured in a different conflict, George would be arguing that it's OK for us to torture him until he talks becuase he's not really human. But since we captured him for protecting a traitor that George Bush still supports, all is forgiven. Bush's complicity in the crime is made obvious by his continued reluctance to have Libby tell the truth.

Posted by: tekel | Jul 5, 2007 11:04:07 AM

Henry Cisneros

Posted by: patrick | Jul 5, 2007 11:21:06 AM

Good Lord its a joke that people actually listen to Bill, this man is just downright unethical, I once liked him and even defended him in the Lewisnky trial but after he lied point blank on national TV that " I never had sexual relations with that woman" and began the hypocritical backtrack and penance after it came out that Monica had a dress with his DNA on it..man the White House has been shamed by both the Bushs and Clintons we need a change for any democrat to support Hillary or any republican to support Bush shows a lacvk of ethics and integrity on that person's part.

It is time we cut out the partisan crap and make truth and justice once again the American way or our once great country will become a tale of the past like the once great empires of Rome and Greece. The stench from the Bush/Clinton White House is to our shame and we cannot this madness by voting in another BUsh/Clinton

Posted by: Jason | Jul 5, 2007 12:43:33 PM

George said: "We as a nation were suffering grief and a panic attack after the Oklahoma City bombing and the Right loves to pounce when the nation is vulnerable like that."
If I recall, the Right was blamed for Oklahoma City. I don't recall them pouncing, I recall them being defensive in the wake of accusations that they had produced McVeigh via talk radio.

Posted by: counter-george | Jul 5, 2007 1:09:34 PM

TalkLeft's "views" mirrored McVeigh's.

McVeigh was a democrat.

Posted by: Deuce | Jul 5, 2007 10:00:52 PM

Professor Berman,

For Christ sakes, be careful with what you say. You are a law professor, and if you had studied THE LAW on the Clinton case you would see that there was no way on God’s earth the man was guilty of perjury or of obstruction of justice, and no jury correctly instructed on the law would have found him guilty. Given that he lied in the deposition (probably true), it was not perjury. The judge in the case (a woman) found that the line of questioning was improper and should have never been asked because it was not material to the issue at hand. Perjury requires lying under oath on a material issue. Thus, QED he was not guilty of perjury.
And what I am saying is not just picking teeth. The entire line of questioning to the President (Yes, he did happen to be the lawfully elected President of the United States) was a carefully constructed ambush, that the questioners themselves knew was not appropriate. Not only that, Clinton was trying to get out from under the thing by looking to the rather torturous definition of “having sex” that was put forth by the judge. He thought he could see a glimmer of light and get by with what he said. But being a lawyer (Yes, he did happen to be a lawyer who had graduated from a topflight school, he had taught law, and he was an excellent attorney general of Arkansas), he realized that he was on thin ice and thus he invited the questioners to ask him the specifics of what they were getting at. They refused. They were simply not interested in the truth; they were interested in getting the President hung out to dry on a lie. That is the friggin truth of the matter, and any prosecutor worth his salt will tell you so.
As for obstruction of justice – WHAT OBSTRUCTION OF JUSTICE? The accusations of obstruction of justice were just that: accusations. They were nothing but verbal scattershot launched by the President’s accusers. Did he ever ask anyone to lie for him? Did he threaten anyone? Did he corrupt a witness? And he certainly never pardoned anyone during the course of the Whitewater investigation by the special prosecutor.
Yes, Clinton lied. He also hid the lie, or continued it, to his close friends and the nation. Shoddy behavior, indeed. But, the case itself was something out of Gnarlow Wilson. Just check what Vincent Bugliosi had to say about the entire affair. Bugliosi is anything but a bleeding-heart liberal, and he said flat out that it was the singles biggest travesty of justice he had ever encountered. He said that no citizen of this country would have ever been bothered by any prosecutor in such a piddley-dunk affair. In fact, if anybody in his office had brought a similar matter to his attention when he was a prosecutor, that person would have been within an inch of being fired for wasting his time.
Not only was the line of questioning to Clinton improper, the Paula Jones case itself was improper. The Judge threw the thing out because, even if everything Jones alleged, she could prove, the case had no merit. Amazing! Just think about it. The President was thus “guilty” of perjury on a non-material fact in a bogus case.
Not only that, but the case should have never been adjudicated during the President’s term. Any reasonably minded authority on constitutional law (and I imagine this ought to include yourself) is now of the opinion that Jones v. Clinton is close to the absolute nadir of Supreme Court decisions. Though it does not deal with as weighty an issue as Dred Scott, the legal analysis, if anything, is even worse. It is like something out of an Ed Wood movie and would shame a first-year law student.
As for the President’s pardons, are you aware that most of them went to your personal special interest in sentencing law: the outrageous hammering of first-time offenders in drug conspiracy cases? FAMM recommended to him the majority of the cases for which he handed out pardons. These cases were carefully selected for consideration and Clinton approved most of them.
Yes, one of Clinton’s pardons was for Rich, and Rich had given a lot of money through his wife to the Clinton campaign, but are you aware of the case on the merits? I am going to assume you are not, because the thing is a red herring, and if you had done even a little investigation you would have come to the conclusion that Clinton did: the man deserved a pardon, period.
Clinton handed out a slew of pardons near the end of his term. So what? That is his right under the Constitution. If anything it speaks to the nobility of the man that he handed out so many, and also to many “small fries”, who would never have any input in the political process, but deserved their pardons on the merits.
As for what you say about Clinton and his track-record regarding sentencing issues and habeas corpus, and criminal justice issues in general; there is some truth in what you say. However, you sit in a chair in a university law school. You are an academic, and thus almost completely free to espouse the truth of things as you see them. Clinton was in the trenches for eight years, with “bullets” flying around his head constantly. He had a small amount of political capital during his administration. He had to spend that capital very carefully. Judging from what he accomplished and the extraordinarily thin margins that much of his legislation passed by (his economic plan – which facilitated the longest peace time expansion in American history – passed by one vote), he did very well with what he had to work with.
The American public is remarkably stupid and vindictive. All of the heavy crime legislation that has passed in the last thirty years around the country has been a response by elected officials to this stupidity and vindictiveness. Being as tough on crime as possible has become the sine qua non for a public official to ensure that he remains in office. So, do you really expect that Clinton would suddenly stand up to all of this crap? Clinton was a political genius (even his enemies admit this); he was not a retard and he wasn’t out to buck a trend that the public was slavishly enamored of. It is only now, over 6 years since he was in office, that the public is even starting to wise-up to the incarceration figures in this country and what they mean. It is only now that the first meaningful possibility of crack-sentencing reform is possible. It is only now that there is any resistance to further mandatory minimums. And it is still a very close call. I mean, the Bush administration wants more mandatory minimums, topless Guidelines, and has managed (with Congress) to institute the sexual registration legislation.
Clinton is correct that there is a difference between what he did and what Bush has done. For one thing, Clinton was consistent in his pardons with his political philosophy. He never went out of his way to portray himself as a super tough-on-crime guy. He put more cops on the street, but he also hired Janet Reno, in part because he had been impressed with certain programs she had instituted in Florida that were effective alternatives to incarceration. He had a track record as Governor and Attorney General of Arkansas that was middle of the road when it came to criminal justice issues (not so easy to do in a state like Arkansas). He appointed moderate Justices to the Supreme Court. And he pardoned a lot of people near the end of his term.
Bush, on the other hand, makes a living being tough on crime. His Attorney Generals have been extraordinarily “hard” in this area. He never pardoned a single execution when he was governor of Texas (and there where several that he obviously could have). His appointments to the Supreme Court are very tough in criminal law. He also said that anyone involved or found guilty in the Plame affair would have to pay. Yet he commutes Libby’s sentence.
And there is truth in saying that what Bush has done with Libby is an example that his administration views itself as above the law. Normally, the latter statement would just be political hyperbole from the opposing forces, but it is not so true with this administration. For one thing, the general competency of the legal people in the justice department and other positions in his administration is suspect. A lot has come out that these people have far from the best legal credentials, and often were chosen for espousing the party line on hot-button social issues rather than for their potential competency in the positions they were applying for. The Administration has pushed the envelope in numerous areas of law, and been rebuked often by the courts for doing so. Its legal positions are invariably at the outer limit of what it thinks possible to maintain and expand power. Commuting Libby’s sentence is easily understood as a furthering this agenda.
I am a regular reader of your site. I find it very valuable on a plethora of issues, and I am truly grateful for all the excellent work you do with it. You just needed an ass-whipping on the stuff you said in this particular article, and I hope you realize it now.
Sincerely, Chris Boys

Posted by: chris boys | Jul 6, 2007 4:17:32 AM

Chris, I hope you feel better and were able to get to sleep after typing that comment at 4am, but I don't think anyone's going to read it.

Posted by: | Jul 6, 2007 10:27:06 AM

I read it. Better than some of the other posts.

Posted by: George | Jul 6, 2007 6:54:38 PM

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