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November 11, 2010

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.

November 11, 2010 at 09:02 AM | Permalink


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Way to pass the buck!

At what point was it the responsibility of the attorneys at OPA to get their own house in order to remedy the "black box" its office had become and the "massive injustice" that resulted? Before or after waiting for an audit that would never come from the world's (supposedly) busiest and most important man?

>>[The presidents have] "decided to leave all matters related to pardons entirely in the hands of bureaucrats at the
>>Justice Department without giving them any direction."

Bush, like Clinton, Obama, and anyone made aware of such an office as the OPA, probably expected that its attorneys would do their damn jobs ethically and faithfully. They probably never imagined that the OPA would default to a policy of "deny almost all applications" in the absence of presidential fiat.

Posted by: Nemo | Nov 11, 2010 10:57:45 AM

It is way past time for Barack Obama and Barack Obama's Justice Department to quit blaming Bush for their own ineptitude.

Usually it has been for the government's failure to improve the economy (even though Obama's party has had Congress for four years, not just these last two). Not content with that, however, we now see that Bush (and maybe Clinton too) are the true Bad Guys because pardons are not being handed out as fast as the defense bar would like.

News flash: Assuming arguendo that more pardons would be a good thing (a proposition that cannot sensibly be assessed just by looking at aggregate numbers), Bush and Clinton are long gone.

Obama is merely making himself small with this constant refrain, echoed here, that "It's all THEIR fault."

He was elected President of the United States, for cryin' out loud. The pardon process, over which the Constitution gives him sole authority, is his ballgame. If he can't play, it's worse than juvenile to complain that Bush and Clinton couldn't play either.

Posted by: Bill Otis | Nov 11, 2010 11:13:40 AM

Bill, where has Obama blamed the current pardon system on Bush? I cannot recall anywhere he said or implied that.

Now, the economy is a different story. Obama really did inherit a mess. To the extent one believes presidents are responsible for that (and most people do, whether or not they should), he has a point. It’s true that Democrats controlled Congress for Bush’s last two years, but they were as constrained by what he would sign, as he was by what they would pass.

Posted by: Marc Shepherd | Nov 11, 2010 7:55:17 PM

Marc --

You're right that Obama has not blamed Bush for the lack of pardons. Indeed I don't recall Obama talking about pardons at all. Margaret Love certainly blames Bush and to a lesser extent Clinton (in the paragraphs Doug quotes). But Ms. Love is not George Bush, so you are right about that and I was wrong.

On the economy: It might be in part because Obama is the most over-exposed President in history that I feel like he's been there for about 25 years and blames every last thing on Bush. The recession started in December 2007, so it was on Bush's (and Pelosi's and Reid's) watch for 13 months. It is said to have ended in June 2009, but I can't find a whole lot of people who think it's actually over, and we continue with an unemployment rate of just under 10% (this is not counting the people who've given up and left the labor market). There has been private sector growth over most of the last year, but only at a tepid rate nowhere near enough to improve the unemployment picture.

On the other hand, you put your finger on something quite important. The government influences, but does not control, the business cycle. Part of our current problem is that the rate of recovery is, not coincidentally like the commercial and housing markets, struggling under the weight of so much debt. With the government borrowing so much, it tends to squeeze out business borrowing, which is on the ropes anyway as the financial sector tries to dry out after its besotted lending binge. And with the government having driven interest rates to about the lowest level ever, private investors are shying away from bonds, understandably (1) expecting to get a better return just about anywhere else and (2) fearful of the inflated dollars with which they'll be repaid once all this Fed printing of money comes home to roost.

Bush had a hand in this for sure. Obama quite effectively campaigned against Bush's profligacy, then ACCELERATED it when in office. At this point, the uncharted but frightening prospect of debt at heretofore unknown levels has business spooked, not to mention uncertainty about taxes. These things are prime factors holding back the recovery. They also help explain why the stimulus was a bust. The stimulating effects have now largely been overtaken, if not surpassed, by the cautionary mood born of fear of the size of the debt to which the stimulus has contributed.

Posted by: Bill Otis | Nov 11, 2010 10:33:38 PM

Was relieved to see this piece is a personal column and not an editorial representing the best thinking of an important newspaper's editorial board. Because its makes-no-sense-but-I'm-for-it-anyway message clearly can't decide what it wants to be when it grows up.

Perhaps the gulf between SC and George should be bridged as was the devide between pro-choice and pro-life forces. Give the lynch mob its due but require SC, Bill, federalist, MikeinCt and like-minded Americans to hold bake sales to pay for it.

Posted by: John K | Nov 12, 2010 9:44:11 AM


Posted by: John K | Nov 12, 2010 9:49:03 AM

having a bad morning...obviously posted responses on the wrong thread.

Posted by: John K | Nov 12, 2010 9:53:02 AM

Count me among those who don't expect much from Bush. Still, his vacuous, trivial, just-buy-the-book defense of what should easily rank among the worst American presidencies set a new low even for him.

Posted by: John K | Nov 12, 2010 10:23:00 AM

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