PRESIDENTIAL PARDONS

If Only You had Asked: Trust the Pardon Review Process

Dean L. Anthony Sutin
Appalachian School of Law

In the March 10, 2001, edition of the Washington Post, former Department of Justice Pardon Attorney Margaret Colgate Love observed that the number of situations in recent decades in which a pardon was granted by a President without a prior Justice Department investigation and recommendation from the attorney general "could be counted on the fingers of one hand." The contrast, of course, is with the number of "unfiltered" pardons and commutations (30 of 177) granted by President Clinton on his last day in office.

The Department of Justice review process is well established. It is reduced to pages of prose in the Code of Federal Regulations. An entire office on the organizational chart of the Department is devoted to the review of pardon requests. The attorneys assigned to that office have years of expertise in evaluating these applications, marshaling the facts, dealing with the importuning of applicants and supporters, and identifying the other viewpoints that need to be considered. Those attorneys also are far-removed from the buffeting winds of politics. They are career employees of the Department whose jobs are secure and who need not win or maintain the personal favor of the wealthy or well connected to advance.

The established review process offers clear advantages and benefits. The first is completeness. All applicants are asked the same questions. The formal review process assures that all of the relevant facts and perspectives are gathered. A decision does not have to be based on supposition, or the acceptance of one-sided assertions. The second is consistency. The same criteria concerning the nature of the offense and post-conviction conduct are applied to form a recommendation. A request for pardon or clemency can be placed within a context of precedent. Third, following the established process also produces a depoliticized result. A Presidential decision to accept a recommendation of the Department of Justice to grant or deny a pardon has a built-in rationale and presumption of legitimacy. Even a decision contrary to a Justice recommendation can be framed in a manner grounded in a specific question of principle or differing interpretation.

A depoliticized result is important because the public understandably perceives a clemency request to be an adjunct to the law enforcement process. We don't want people prosecuted or not prosecuted because of their connections or intervention with elected officials. The Attorney General has the unquestioned authority to make a decision to prosecute (or to sue Microsoft, request the appointment of an independent counsel, release a classified record, or seek the death penalty), but it is the expectation that such a decision will be made only after a thorough and objective work-up and vetting of a decision by the career attorneys of the Department. So too, considerations of raw constitutional power aside, the legitimacy of pardon decisions requires that the ultimate exercise of discretion be traceable to an objective assessment of the facts rather than the proper alignment of political stars.

Given these virtues, why not take advantage of such a process in all cases? The obvious answer is that the Constitution vests the decision to grant a pardon in the President, with no requirement of advice or consent from any person or office. As former counsel to the President Beth Nolan recently explained to a congressional panel, "The President's the President." The President also is the commander-in-chief of the armed forces, but we would not expect a President to make major military decisions without the input of the Department of Defense. So, again, why not? Historically, the reason cited why the "official" process was bypassed on rare occasion was that the matter under consideration was of such a well-known and notorious character that the competing considerations were obvious. Occupying this category are the 1974 pardon of Richard Nixon and the 1992 pardons of Caspar Weinberger and others. The reasons suggested for the Clinton Bypass were a lack of time (a complete Department of Justice review takes 18-24 months in a typical case because of the great mismatch between the volume of applications and the personnel of the Office of Pardon Attorney), and/or a distrust of the Department of Justice's advice in these matters (perceived to be too solicitous of the views of prosecutors).

The problem of processing time is a real one. The number of staff assigned to the Office of Pardon Attorney is just not sufficient to process the pending applications at a faster clip. Resource limitations are not unique to that Office, to the Department of Justice, or to the federal government generally. Nor is a request for additional resources to, in essence, benefit convicted criminals likely to be near the top of any budget wish list. Nevertheless, if consideration of executive clemency requests is a sufficient priority for the Leader of the Free World to consume much of his personal time in the closing weeks of office, securing adequate resources for conscientious fulfillment of that task should be a greater priority.

On the issue of the "skew," the White House also is accustomed to counseling and/or directing executive branch agencies. If the President and his advisers perceive that a certain consideration is systematically over- or undervalued in the evaluation of pardon applications by the Department of Justice, policy guidance or direction unquestionably is appropriate. President Clinton, through White House Counsel Jack Quinn, did just that "to enhance the analysis of clemency requests" by memorandum in January 1996.

Realistically, not much can be done on either the resource or the skew score at the eleventh hour, but a President who fails to take advantage of the established process fully assumes the risk of a bad decision. It takes a lengthy process to examine all of the facets of an application, fill in all of the missing pieces, and perhaps most significantly to craft a recommendation that fits the particular application into the spectrum of those that came before. That process cannot be compressed into a window of hours, or simulated by White House staff without the benefit of experience in the process. To be sure, a pardon application need not satisfy any strict set of legal requirements, can be made for no reason at all or for a coin flip, and in the end rests upon the exercise of boundless discretion. But the more a decision can be tied to the consistent application of principles rather than whim, lobbying, or bias, the better it is for all of the participants in the process and for the public confidence in the executive clemency process – and probably in government itself. A President who thoughtfully decides to disagree with a Department of Justice recommendation stands in a better spot than a President who acts without the benefit of any recommendation.

March 19, 2001

———————————————————————
Discussion

• responses to be posted...