Commentary on the decision points of pardon from President Bush

Margaret Colgate Love astutely spotlighted for me a passage from President George W. Bush's new memoir about his "pardon surprise."  Here is that passage along with follow-up commentary from former US Pardon Attorney Love:

This is from President Bush's description of the pardon "surprise" at the end of his tenure (Decision Points at pp. 104-105):

"One of the biggest surprises of my presidency was the flood of pardon requests at the end.  I could not believe the number of people who pulled me aside to suggest that a friend or former colleague deserved a pardon.  At first I was frustrated.  Then I was disgusted. I came to see the massive injustice in the system. If you had connections to the president, you could insert your case into the last-minute frenzy.  Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.  In my final weeks in office, I resolved that I would not pardon anyone who went outside the formal channels....

A few days [after telling the Vice President that he would not pardon Scooter Libby], I talked to another person about the pardon process.  On the ride up Pennsylvania Avenue on Inauguration Day, I told Barack Obama about my frustrations with the pardon system.  I gave him a suggestion: announce a pardon policy early on, and stick to it."

This is Margaret Colgate Love's comment:

President Bush's description of the "last-minute frenzy" over pardons in his final days in office is oddly reminiscent of what happened at the end of Bill Clinton's term.  It is interesting that the "flood of pardon requests at the end" came as a surprise to Mr. Bush, since his own Counsel Fred Fielding actually invited people to apply directly to the White House rather than have them get stuck in what had become a black box in the Pardon Attorney's Office at Justice.  Mr. Bush seems unaware that it was precisely his own early policy decision not to question or give direction to the Justice Department in pardon matters that led to the "massive injustice" in the system, just as President Clinton's neglect of his power had led to similar chaos and unfairness eight years before.  It is ironic that Mr. Bush felt "frustrated" and "disgusted" by the entirely predictable results of that policy.

To date it appears that, like President Bush, President Obama has decided to leave all matters related to pardons entirely in the hands of bureaucrats at the Justice Department without giving them any direction.  Experience teaches, however, that when the regular pardon program offers little or nothing to ordinary people, the wealthy and well-connected will seek a back-door channel.  Yogi would recognize this place.

UPDATE AND CODA:  Charlie Savage at the New York Times has this follow-up post, headlined "Bush Memoir Gives Short Shrift to His Pardon Record."  It notes: "As history, this portrayal of Mr. Bush’s handling of pardons is incomplete.  It omits mention of a slate of 20 felony offenders granted clemency by Mr. Bush on Dec. 23, 2008 -- less than a month before he left office."

In addition, former staff attorney in the pardon office, Sam Morison, sent me these additional points:

I agree entirely with Margy's analysis.  If the President Obama permits the established clemency advisory process to remain dysfunctional, he has no one but himself to blame for the quality of the advice he receives from DOJ or for the crush of special pleading at the end of the term.  As Margy points out, the results are entirely predictable.

I would only add the following coda. As has been previously reported but not much discussed, in last two administrations, the White House Counsel's Office specifically asked the Justice Department to pick up the pace of favorable clemency recommendations toward the end of the term, evidently in a belated recognition that the issue had been neglected.  On both occasions, the pardon attorney professed a lack adequate resources to comply with the president's wishes, but at the same time refused to relax the standard of review, knowing that he could run out the clock, as it were.  President Clinton reacted to the Department's recalcitrance by granting a rash of irregular cases that had not been properly vetted, whereas President Bush essentially shut the process down.  In neither case did the Department serve the best interests of the presidency.