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May 25, 2010

DOJ resisting efforts to disinfect the federal celemency process with some sunlight

Light Supreme Court Justice Louis Brandeis famously advocated for transparency and honesty in public policy with the wondrous aphorism "sunlight is the best disinfectant.”  This bright idea came to my mind when I saw this fascinating new article in The National Law Journalconcerning federal celemncy policies and practices. The piece is headlined "Justice Department Wants to Keep Pardon Data Under Wraps: DOJ says release of information on applicants violates privacy law," and here are excerpts:

The Obama Justice Department is fighting to keep secret the names of more than 9,200 people whose applications for pardons and commutations were denied by President George W. Bush.

Last year, DOJ attorneys failed to persuade a judge in the U.S. District Court for the District of Columbia that the privacy interest of the unsuccessful applicants outweighs any public value of producing a list. The department has asked a federal appeals court in Washington to reverse the ruling.

The case is a politically sensitive one for the Justice Department, given Attorney General Eric Holder Jr.'s involvement in the decision to pardon fugitive Marc Rich at the end of the Clinton administration. The Rich pardon turned into a Washington scandal that compelled Holder to apologize for mistakes when it came up during his confirmation hearing last year.

Although the case applies only to pardon applicants during the Bush administration, a loss at the U.S. Court of Appeals for the D.C. Circuit would likely make public the names of those who sought pardons and clemency during other administrations.

Under the current policy, the Justice Department will confirm whether a specific convict received a pardon, but will not disclose a comprehensive list of all the denials.

Since October 2009, Obama has received 382 pardon petitions and 2,275 applications for commutation -- on top of more than 2,000 pending petitions.  Obama has not granted or denied a single petition, according to Justice Department statistics.  The outcome of the dispute has the potential to change the pardon process going forward, said several lawyers in Washington who represent clients seeking clemency.  Routine disclosure of all names could deter some people from seeking a pardon in the first place.

"Pardon grants should be, and are, publicly disclosed because there should not be secret pardons," Hogan Lovells partner H. Christopher Bartolomucci said. "But pardon denials should not be disclosed as a general matter because of the applicant's privacy interest."

The case stems from a Freedom of Information Act request filed by a retired Washington Post reporter, George Lardner, who is writing a book on the history of clemency.  Lardner's lawyers at the Public Citizen Litigation Group in Washington said that comparing clemency lists on file at the Office of the Pardon Attorney will help determine whether ethnic consideration played a role in Bush's rejection of thousands of applications.

Last July, Judge Colleen Kollar-Kotelly issued a 35-page opinion ordering the names to be publicly released. "Fundamentally, the disclosure of the requested information shines a light on the most basic information about the executive's exercise of his pardon power -- who is and who is not granted clemency by the President," Kollar-Kotelly wrote.DOJ officials declined to comment.

In the D.C. Circuit, the department continues to mount its privacy argument -- that many applicants have family members, friends and employers who may not know that the person has a criminal record. There's no way to put a favorable spin on the fact an applicant was deemed unworthy of clemency, wrote DOJ Civil Division lawyer John Koppel in court papers filed May 10. "At most, the public would learn the names of those denied clemency, but not the factors favoring or disfavoring the decision, nor whether there were weighty considerations supporting or opposing clemency in the OPA file," Koppel said in court papers. "Without knowing the reasons that factored in the decision, the public learns nothing about how the government works -- even as a significant privacy interest is sacrificed."

One lawyer in Washington whose practice is devoted to clemency said she supports shedding light on the pardon process but also expressed concern about the prospect of a wholesale release of names. "I think a lot of my clients would be really anxious to see their names on a list of applicants who were denied," said Margaret Colgate Love, the U.S. pardon attorney between 1990 and 1997....

Lardner's attorneys at the Public Citizen Litigation Group in Washington note that none of the unsuccessful applicants are participating in the case and that there are public databases -- the Bureau of Prisons has one -- where employers can check whether an employee has served time in the federal prison system. Public Citizen Litigation Group Director Allison Zieve said DOJ's argument "is speculation about worst-case scenarios" without necessary evidence to support the concern. "For an administration that seeks to pride itself on its openness and commitment to FOIA, it's disappointing they would [appeal]," Zieve said. "It's not really the government's interest at stake in this case."

Because I believe assertions of privacy interests and concerns are frequently overstated, and especially because I consider the federal clemency process very badly broken, I am deeply disappointed that Obama Justice Department is fighting so hard to prevent George Lardner and others from getting the most basic information about the operation of the federal clemency process.  Given that President Obama has failed to act in any way on what is now a backlog of nearly 5,000 clemency petitions, I am a proponent of anyone who is eager in any way to shine more sunlight on a clemency process that seem to me to be teeming with infectants.

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May 25, 2010 at 09:42 AM | Permalink


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Yeah, Doug, it's easy for you to want the disclosure--other people bear the burden.

Posted by: federalist | May 25, 2010 12:59:35 PM

"that many applicants have family members, friends and employers who may not know that the person has a criminal record"

But isn't that information itself already public record? It seems like that is a weak "privacy interest" they are trying to protect.

Posted by: DEJ | May 25, 2010 1:59:31 PM

I have a lot of problems with keeping a bare list of names of those who seek a pardon private. There may well be portions of the submissions that probably shouldn't be public, although even there most of the material used to try and persuade the President that any particular applicant is worthy should likely be public.

On the other hand unlike so many other powers of government there are no limiting legal principals for the pardon power. If the President wanted to use it in a completely arbitrary and capricious manner I don't see any remedy the courts could provide. It might well be argued that the power is already being used in such a way. And unlike other offices, Congress can't remove the clemency power by refusing to fund it.

It might even be argued that Congress doesn't have the power to make the pardon decision process subject to FOIA. I think that would be a losing argument, but I see it being a lot closer than many other areas of government activity.

Posted by: Soronel Haetir | May 25, 2010 3:42:53 PM

For what it's worth, the DC Circuit has held that the Office of the Pardon Attorney (OPA) is an agency subject to FOIA. See Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108 (D.C. Cir. 2004). The legal issue here has nothing to do with the disclosure of potentially embarrassing information in clemency petitions, but rather whether an unsuccessful clemency applicant has a "reasonable expectation of privacy" in the mere disclosure that they filed a clemency petition that was then denied by the President. Since OPA rather plainly does not promise any applicant anonymity -- and indeed notifies applicants that their identity might be disclosed publicly for any number of reasons -- this is a very weak privacy argument. After all, they are asking the President to relieve them of the legal consequences of a putatively valid conviction, which was itself a public act. Moreover, the public arguably has a right to know, in the relevant FOIA sense of the term, how the President is exercising the pardon power, which may be the only meaningful check on its abuse. Finally, the notion that OPA is genuinely concerned about the "suffering" of erstwhile clemency applicants from the "stigma" of such disclosure is, frankly, preposterous.

Posted by: Anon | May 25, 2010 6:24:08 PM

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