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November 20, 2008

Through the federal clemency looking glass with Holder

Though I am still ruminating over the selection of Eric Holder for the next Attorney General (as evidenced here and here and here), the latest political buzz over the nomination has me depressed about what I see as the likely impact of the Holder choice on public perceptions of federal executive clemency. Consider this Politico reporting in this new piece that the Marc Rich pardon will be a central part of debate in Holder's confirmation hearing:

Eric Holder’s long and distinguished public service career may now be defined by what he did in his last full day at the Justice Department.  The former deputy attorney general in the Clinton administration, who’s now President-elect Barack Obama’s reported choice to be attorney general, is expected to be confirmed by the Senate – but not without some serious scrutiny of his involvement in President Bill Clinton’s controversial pardon of fugitive financer Marc Rich....

As deputy attorney general, Holder famously let Rich’s last-minute pardon move across his desk. It was a bad decision, Holder later acknowledged, and one that has haunted his otherwise solid career of public service and philanthropy. "If I had focused on this in a way that I could have, should have, the recommendation I would have given him would have been, 'Don't do this, Mr. President,' " Holder told The Washington Post in March, 2001.

Republican legal advocates are pushing the Senate to scrutinize the pardon, even as they admit the issue is unlikely to scuttle Holder’s confirmation.

Similarly, The Washington Post today has this new editorial headlined "Mr. Holder at Justice? The likely nominee needs to answer questions about a pardon."  In other words, against the backdrop of a long and distinguished public service career, the biggest concern expressed about Holder will be his failure to stop his boss from making a stupid and self-serving decision to grant clemency to someone who did not deserve it.  I suggest this puts us through the federal clemency looking glass: when so much unjust harshness defines our modern federal criminal justice system, it is both sad and telling that one lone act of unjust mercy garners all the headlines concerning Holder in particular and for the clemency power in general.

I have no problem with Holder getting some political heat over his role in the Rich pardon: after all, political accountability is the only real restraint on the exercise of the absolute executive clemency power that is constitutionally enshrined.  But, I am very troubled that Holder is going to be politically pilloried for not trying to block an ugly act of clemency by President Clinton, rather than being questioned about the the broader (and, in my view, much uglier) failure of recent Administrations to use the clemency power proactively to remedy the many unjustly long federal sentences that have been imposed over the last two decades.  

Beyond questions about the failure to grant justifiable clemency petitions, Holder should be asked about lots of other federal criminal justice failings during the Clinton Administration.  The Washington Post and others inside the Beltway really should not worry about questioning Holder about his role in clemency decisions.  After all, Bill Clinton clearly was "the decider" here.  Rather, the Post and others should be asking who is going to question Holder about more important matters of federal criminal sentencing administration such as:

(1) the Clinton Administration's abject failure to do anything serious about the crack/powder disparity in the wake of the US Sentencing Commission's major report on the disparity in 1995,

(2) the Clinton Administration's abject failure to do anything serious about needed mandatory minimum reforms (beyond the safety-valve legislation),

(3) the Clinton Administration's abject failure to do anything serious about acquitted conduct sentencing enhancements under the guidelines, especially following the Supreme Court's Watts decision in 1998, and 

(4) the Clinton Administration's abject failure to effectively staff and support the work of the US Sentencing Commission, especially in the late 1990s when there were literally no Commissioners because of a variety of political stalemates over potential appointments.

I fear that none of these important questions will be asked, in part because many pundits and politicans rather bloviate about the Marc Rich pardon for which Bill Clinton (and Hillary Clinton?) ultimately merit much more blame and grief than Eric Holder.  But I really hope I am not the only one with enduring concerns about Holder's role in these other more consequential sentencing law and policy issues, and also not the only one interested in his current views on these still-important issues a decade later.

UPDATE:  I just noticed at TalkLeft this post, titled "Right Gearing Up To Attack Holder On Rich Pardon," which concludes that "it appears opposing Holder will be a rallying point for the Right."  I think it is much too early to assume that anyone will rally behind opposing Holder, especially given that for now attacks on Holder (especially as they related to the Rich Pardon) seem to be just a conveninent way to vent about some ugly final days of the Clinton Administration.

That said, the comments to the TalkLeft post raise some interesting questions:

A.  Will any of the new Holder-related pardon buzz impact how President Bush uses his clemency powers in the weeks ahead?

B.  Shouldn't Scooter Libby, who represented Marc Rich from 1985 to 2000 (details here), have a lot of useful information if/when Holder is questioned by the Senate about these matters?

November 20, 2008 at 10:55 AM | Permalink


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Wait a minute. You're telling me that the fact that Congress and its media allies takes a minor issue that is of no real consequence, blows it entirely out of proportion, and then uses that huffing and puffing as a smoke screen to avoid addressing difficult public policy issues; you're telling me this bothers you? What planet have you been living on?

I was having trouble with some software and rather than admitting it was a bug the response I got from customer no-service was, "Program working as intended."

Doug, the program is working as intended. You don't like it, find another program.

Posted by: Daniel | Nov 20, 2008 11:43:46 AM

"But, I am very troubled that Holder is going to be politically pilloried for not trying to block an ugly act of clemency by President Clinton, rather than being questioned about the the broader (and, in my view, much uglier) failure of recent Administrations to use the clemency power proactively to remedy the many unjustly long federal sentences that have been imposed over the last two decades."

Why? Holder's actions with respect to the Rich pardon call into question his integrity. Isn't that an important consideration for someone who is AG? The guy admitted that he was trying to curry favor with Jack Quinn in order to become AG in a Gore Administration. And this is not to be explored?

Yeah, someone should ask him about sentencing. But this has to be explored.

Posted by: federalist | Nov 20, 2008 12:49:35 PM

I report for complinet.com on regulations affecting the financial service industry. As such I have reported on the Holder, McNulty et al line of memos.
The Nov 22 NY Times has an op-ed http://www.nytimes.com/2008/11/22/opinion/22lardner.html by George Lardner Jr blasting Mr Holder. The op-ed says Lardner is an associate at the Center for the Study of the American Presidency, where Holder's former boss, Pres Bill Clinton, is an honorary chairman. I don't know whether Lardner is trying to insulate Clinton by implying that Holder drove the decision to pardon Rich, but a more disturbing question may be whether to blame a lawyer for the action of the client. Will future appointments be derailed and confirmation hearings bogged down over a prospective appointee's past legal advice? Can a candidate who requires Senate approval discuss the advice, and its context, without breaching confidentiality?

Posted by: Stuart Gittleman | Nov 22, 2008 3:28:27 PM

Federalist, I just got off the phone with Jesus. He said he wouldn't pardon anyone for any reason. Moreover, he made it very clear that poor people are scum.

By the way, do you know what Rich was accused of and how similarly-situated people were treated?

Posted by: S.cotus | Nov 23, 2008 12:39:15 AM

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