Monday, November 25, 2013
On the presidential pardon power
I have a letter in today's NYTimes that is part of their "invitation to a dialogue" series. I will reply in the Sunday Times to letter received today and tomorrow. Understandably, the Times shortened my original submission, so it is perhaps worth pondering the following paragraph that did not make the final version:
Mark Osler, a former prosecutor who at times frames things as part of his Christian faith (see his book using Jesus to address the death penalty), has been a critic here.
Whatever the reason, and there is more than one, for him lagging, Obama deserves some pressure in this area. It also is notable that the second term of B43 had an uptick of pardons.
I would say the pardon of Nixon rather decidedly didn't, as it helped to cement the current situation, where, once you're elected President, you're basically above the law. And in so doing rendered them more like royalty than citizens who happen to be temporarily holding an office.
I expect, given his general style, that Obama is holding off most of his pardons until his last day in office, when we will suddenly realize that there are worse things than pardoning Marc Rich. He just doesn't want the backlash to trouble him while he's still exercising power.
Regarding Nixon, some of us were around in the late 1940s, '50s aware of the evils of Nixon. Despite his losses in 1960 and 1962, and his self-professed "retirement" so as not to be kicked around any more by the press, he rose Phoenix like from the ashes of the Vietnam war's impact on Democrats to come back to life in 1968. Yes, there was an evil Nixon before Watergate. Perhaps Ford made a deal with the devil. We'll never know for sure. Watergate was evil and many in Nixon's Administration were involved. Yet the PR machines continued to hum in efforts to attempt to restore Nixon's standing as he was a Republican supported by the GOP power elite over and beyond his career.
As for Brett's feeble efforts:
"I would say the pardon of Nixon rather decidedly didn't, as it helped to cement the current situation, where, once you're elected President, you're basically above the law."
he skipped over the Iran/Contra brouhaha in Saint Reagan's second term that led to pardons by Bush-41 after succeeding Reagan.
Both Watergate and Iran/Contra caused more harm to American principles than did Marc Rich's crimes. President Clinton should not be forgiven for pardoning Rich but Rich was a drop in the bucket compared to the harm of Watergate and Iran/Contra.
I don't recall that Bush-43's pardons were in any way close to the pardons of Ford and Bush-41. In fact, as I recall, Bush-43 was criticized by his VP for not pardoning Scooter Libby (only commuting his sentence).
So Brett, our dear anarcho-libertarian, tosses his expectation bombs in forecasting what Pres. Obama might do by way of pardons. Perhaps Obama will pardon Brett - now that would be "rich."
"No doubt President Obama is far more likely to pardon the Thanksgiving turkey than to take seriously his constitutional right/duty to monitor the basic fairness of the federal criminal justice system. "
Perhaps the ABA, state and local bar associations should do more monitoring as their members are more active on the ground regarding such fairness. How many indigent defendants have been pardoned over the years by Presidents? The Innocence Project gets its results through the legal system for the most part. I have no idea how Presidents address internal procedures in identifying persons worthy of pardons. But in my gut I think money plays a part, including high priced attorneys to "make the case." How many indigent defendant convicted via pleas deals and/or inadequate counsel have the funding sources that may be required to present a pardon request? Consider political pardons in comparison. How much of the DOJ's budget is devoted to the pardon process? With the large prison population that may include more than a tad who may be innocent, how much time and effort of a President and his Administration would be required to monitor the basic fairness of the system? Perhaps there should be more focus on Congress' role with sentencing.
I think Sandy is a bit naive with this:
"This is no longer, assuming it ever was, a partisan political issue."
especially in the case of Pres. Obama. Just harken back to the post-Brown v. Bd. of Educ. days of GOP "law and order" to implement its Southern Strateg. (Recall the 1988 presidential election and the skewering of Mike Dukakis, an honorable man, with the Willie Horton release under a furlough program in MA.)
I suppose that if there were to be constitutional convention Sandy might have in mind spelling out a President's constitutional right/duty regarding pardons and fairness of the federal criminal justice system. Perhaps Sandy has a draft to peruse.
Did the Nixon resignation also "help cement" the current situation? Isn't that part of the pardon? How can we skip over that part? Ford didn't simply pardon him after Nixon left office the normal way. Nixon resigned, largely since impeachment seemed imminent because it was understood he broke the law.
The pardon seems akin to not prosecuting let's say a lawyer who gave up his/her law license and had little chance of getting it back. Since he already left office, was punished in that fashion, it showed he was not a king.
Are we going to skip over this part?
Nixon resigned under threat of impeachment. As we've since learned with Bush II (torture) and Reagan (Iran-Contra), impeachment won't happen even if there are obvious crimes committed. As a result, there's no control on presidential behavior.
Reagan's actions came too late for there to be time (Nixon's putative impeachment took years to develop) and Nixon's impeachment was focused on a certain thing too. It was not a general denunciation of everything wrong he did.
But, I'll grant the argument that now executive overreaching is not really checked by this means. Impeachment, especially after Clinton, is something of a toothless check.
Still, if we are saying Nixon's pardon furthered things, it is only because half the picture is remembered. Nixon did resign, even if the pressure might not be present today. It is far from clear if Ford would have pardoned him if Nixon merely left office in 1977 and Ford became President.
Nixon was not above the law. Ford's pardon didn't show that.
In evaluating Pres. Reagan's Iran/Contra brouhaha can we ignore then candidate Reagan's campaign's efforts in 1980 to stall the release of the hostages until after the election followed by the "coincidental" release of the hostages on January 20, 1981? Did Reagan as candidate and as President buoy the Iranian government's subsequent hardline positions? And does the current GOP opposition to the recent interim deal of six nations with Iran suggest that the opposition is solely to gain political power (as was the case with Reagan) rather than address the national interests of America? Is this another wave of the neo-conservative hawks who won't be putting their own derrieres on the line? Compare the presidential "playbooks" of Nixon, Reagan, Bush-41 and Bush-43 with those of Clinton and Obama for perspective on dirty pool. (Even Bush-41 played dirty pool in 1988 with Lee Atwater, who provided a mea culpa as cancer spread through his body.)
By the Bybee [expletives deleted], the Nixon/Frost interviews gave us Nixon's "When the President does it, it's not illegal." In contrast today's GOP says "When President Obama does it, it's illegal." so pardonez moi.
Lawrence O'Donnell had a segment tonight that showed a clip from the West Wing turkey pardon episode and then the ritual with Obama. His daughters was stuck being there.
Clinton explained his pardons:
"I don't recall that Bush-43's pardons were in any way close to the pardons of Ford and Bush-41. In fact, as I recall, Bush-43 was criticized by his VP for not pardoning Scooter Libby (only commuting his sentence)."
IANAL, but it was pointed out that this way Scooter avoided most punishment, but could still assert his fifth amendment rights. If he had been pardoned, he could have been subpoena'd immediately, and would have faced contempt charges, telling what he knew about the crimes (i.e., implicating Cheney), or facing additional perjury charges.
Barry, so if Bush-43 was protecting Libby and thus Cheney, why was Cheney so angry? I'm not aware that the Obama Administration has had its eyes on Libby or Bush-43 or Cheney for prosecution, investigation or otherwise. Query: Does a pardon provide immunity from testifying on matters covered by the pardon? Are there precedents for forcing the recipient of a pardon to testify in such circumstances? What about the recipients of Bush-41 Iran/Contra recipients of pardons? And can you provide a link to who pointed this out in the case of Scooter?
Libby on Rich pardon:
Shag's question is interesting. NPR flagged the general issue:
"Other Democrats maintained that because President Bush didn't pardon Libby altogether, Congress can't grant Libby immunity and force him to testify."
Libby, as a sort of pardon expert, could have been his own counsel on this. Perhaps, seeing how the political winds blew, by the end of the term he thought he was safe and let Cheney know.
Bush decided for whatever reasons (perhaps it is covered in his book) to stick to his guns.
Here is the penultimate [still my favorite word] paragraph of the WaPo article Sandy linked to:
"Over at National Journal, Ron Fournier pointed out that, at the bare minimum, Obama could grant clemency to all the people still serving extra time in prison under the old crack-sentencing guidelines — guidelines that Obama himself opposed as excessive and which Congress reduced for all new prisoners in 2010. So far, however, there's no sign that the White House will do this."
Just imagine the furor from the GOP/conservatives that would follow such an action by Pres. Obama and that furor might focus on the races of such pardon recipients. How many Congressional investigations might surface? Consider the recent consolidation of the U.S. Vatican consulate with the one in Italy and the brouhaha led by the Not-so-BreitBart. Where is Congress on the issue of fairness of the justice system and excessive sentencing? GOP conservatives still use "law and order" as an issue against Democrats, that Democrats are weak on crime. So Sandy seems to want to open the door to more dysfunction with more extensive use of the pardon power. Go back to Nixon's 1968 campaign with its Southern Strategy utilization of law and order, code words for what some dare not speak. Consider the racial statistics with the prison population. So does Sandy look at Obama as sort of a Messiah with the pardon power to rectify decades of unfairness in the federal criminal judicial system? It seems that Sandy expects more of Obama than perhaps he has of prior Presidents.
I wonder if the chart with the WaPo article Sandy linked to can be broken down with racial analyses of pardons. That might prove interesting. And what about the "infinite wisdom" of the Supreme Court with its decision made "non-retroactive." What does that say about the unelected Justices who so decided?
Sandy is piling on Pres. Obama. It's time to toss the flag.
The Innocence Project gets its results through the legal system for the most part. I have no idea how Presidents address internal procedures in identifying persons worthy of pardons. But in my gut I think money plays a part, including high priced attorneys to "make the case." How many indigent defendant convicted via pleas deals and/or inadequate counsel have the funding sources that may be required to present a pardon request?
I bet this is quite accurate. The only alternative to being rich is to somehow luck into being a cause célèbre.
The recent case release of Michael Skakel in Connecticut makes the case quite powerfully. Here's a man who spent at least hundreds of thousands on his defense team yet was released from prison and granted a new trial on the basis of ineffective assistance of counsel. It is hard to see how that claim can even be made with a straight face by someone who had the full attention of his pick of any lawyer in the jurisdiction, when there are so many in prison who had massively overburdened assigned counsel. Yet with more millions to spend on post-conviction attorneys lo and behold ineffective assistance of counsel.
No doubt millions of dollars of high priced help also makes for some quite convincing dossiers on purported miscarriages of justice.
I'd rather see a system with no mercy, than one where mercy is only available for the rich and famous.
I know little of the Skakel "successful" appeal that will lead to a new trial. I plan to read more on it. But the Skakel case is anecdotal. I did follow the original trial closely in the press and it seemed that Skakel's attorney was competent, although he could be a little arrogant, which may have been a style that had previously been successful for him. I also had the impression back then that Skakel's counsel, like too many high-priced criminal attorneys, has in the front of his mind attracting new clients with his performance. I am concerned that it took 12 years to accomplish a "successful" appeal that will - or may? - lead to a new trial. Considering how long it took to bring Skakel to trial, adding on such 12 years makes a retrial quite difficult.
I do take Brad's point. But I can't accept his closing comment. A system with no mercy is unacceptable. Better to improved the system. It's difficult with the "law and order" GOP/conservative code post-Brown v. Bd. of Educ. It's difficult because of the strong for profit prison industry with it political clout. Consider the difficulties in CA with the federal court order to reduce its prison population and the fears that reductions might have on communities into which prisoners are released. A similar fear might result if Pres. Obama were to pardon/commute sentences of crack-convicted federal prisoners as suggested in the article Sandy linked to in the WaPo. Prison reform, the role of pardons, these are political issues that divide in the manner of current day dysfunctional government, making it difficult to handle hot spots throughout the world that involve our national security/interests as well as domestic needs following the 2007-8 Bush/Cheney Great Recession
Brad starts off his comment with something I said in an earlier comment which expressed my frustrations with the criminal justice system. I should add to this the recent trial of Whitey Bulger here in Boston. He was determined to be indigent and had court-appointed attorney whom he basically selected. The legal defense fees/costs are quite high and will continue with Bulger's appeal. Bulger is a celebrity defendant, especially since he had embarrassed the FBI and other federal and state officials over many years. Do other indigent defendants get comparable legal support at government expense? I think not. I take Brad's point to apply to the luck of Bulger being an "indigent" cause celebre criminal defendant.
A Daily Kos post of 11/29/13 "President Obama could pardon the Pardon Attorney" provides information as to the role of the "Pardon Attorney" that both the Bush and Obama Administrations relied/rely upon on matters of pardons.
Still, if we are saying Nixon's pardon furthered things, it is only because half the picture is remembered. Nixon did resign, even if the pressure might not be present today. It is far from clear if Ford would have pardoned him if Nixon merely left office in 1977 and Ford became President. Fifa 14 Ultimate Team Coins
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Despite his losses in 1960 and 1962, and his self-professed "retirement" so as not to be kicked around any more by the press, he rose Phoenix like from the ashes of the Vietnam war's impact on Democrats to come back to life in 1968
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