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Pardon Me?

With all the talk of pardons for Scooter Irving, I thought the subject deserved more fact-based discussion than all the wild assed speculation going around, and there has not been a piece with authoritative sourcing or citation in any newspapers I've read.  I thought that all of you might like some usable, verifiable information about how the pardon process actually works in this great nation of ours.

Pardons and/or clemency are granted by the President pursuant to authority granted to the President under Article II, section 2 of the Constitution which reads in pertinent part:

Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. [bold and underline mine]

The power to pardon is absolute (well except for that impeachment thingy), but Presidents have consistently recognized that it is not something to be dispensed carelessly, but rather soberly, thoughtfully and with restraint. Therefore, procedures have been put in place to help the President identify worthy recipients of this magnanimous power. Those procedures are carried out in the Office of the Pardon Attorney, a division of the Department of Justice.

The current Pardon Attorney is Roger C. Adams, a Clinton era appointee. The duties of the Pardon Attorney include investigating all applications for pardons or clemency, including requests to commute death penalty sentences.

The Office of the Pardon Attorney, in consultation with the Attorney General or his designee, assists the President in the exercise of executive clemency as authorized under Article II, Section 2, of the Constitution. Under the Constitution, the President's clemency power extends only to federal criminal offenses. All requests for executive clemency for federal offenses are directed to the Pardon Attorney for investigation and review. The Pardon Attorney prepares the Department's recommendation to the President for final disposition of each application. Executive clemency may take several forms, including pardon, commutation of sentence, remission of fine or restitution, and reprieve.

This has been the work of the Office of the Pardon Attorney for over 100 years.

See Executive Order dated June 16, 1893 (transferring clemency petition processing and advisory functions to the Justice Department), the Rules Governing the Processing of Petitions for Executive Clemency (codified in 28 C.F.R. §§ 1.1 et seq.), and 28 C.F.R. §§ 0.35 and 0.36 (relating to the authority of the Pardon Attorney)

There are clear and written guidelines for the Pardon Attorney to use in deciding whether or not to recommend to the President that a particular individual be pardoned or given clemency.

And this being the Government, there are forms. (There are always forms to fill out.)

This is a brief — very brief — run through of the guidelines to be used by the Pardon Attorney when determining whether to recommend to the President that a person receive a pardon. They can be found in their fulsome glory here.

1. Post conviction conduct, character and reputation.

I suppose this is where all that "Scooter is such a nice guy, he deserves a pardon" stuff comes into play.

2. Seriousness and relative recentness of the offense.

Under this section, a "very serious" offense is defined as "a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money." [emphasis mine]

This does NOT look promising for Scooter. It gets worse for him. Under this section the Pardon Attorney is supposed to wait for a "suitable length of time [to] have elapsed in order to avoid denigrating or undermining the deterrent effect of the conviction."


But, in fact, it gets worse for "Cheney’s Cheney." This section also asserts "[i]n the case of a prominent individual or a notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account." This is just a tough, tough section for Libby.

3. Acceptance of responsibility, remorse and atonement.

Has Libby met any of these requirements? No, no, oh and no.

4. Need for relief.

You know, at first glance, that section looks like a place Libby could gain a little ground, but further reading of this section reveals that it isn’t what Irving wants it to be. It’s not the "I’m an insider with full belief in my own entitlements so I NEED this pardon cause I WANT this pardon."

Sorry, this section relates to those individuals who have been convicted of a felony, paid their debt to society, turned their life around and have lived a blameless existence for years and are merely asking to have the disability of their prior conviction removed so they can once again enjoy full civil rights, such as the right to vote or hold a professional license or similar issues.

5. Official Recommendations and Reports.

This section actually refers back to another part of the pardon guidelines relating to the role played by the guys who prosecuted the felon in the first place. That other part of the guidelines says "[t]he views of the United States Attorney [in this case Fitz] are to be given considerable weight in determining what recommendations to make to the President."

I wonder what those views could be?

Good quote for ya’ll (from the pardon petition information at the DoJ website):

§ 1.2 Eligibility for filing petition for pardon.

No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.[emphasis mine]

Now that I got your hopes up, here’s the "there is no Santa Claus" quote that takes all that fun stuff away:

§ 1.11 Advisory nature of regulations.

The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.  [emphasis mine]

This will take you to the Capital Hill testimony of the current Pardon Attorney as he explains to the Senate Judiciary committee just what it is he does.  The money quote for me is on a very de minimus standard that we ought to be able to expect in all cases, though I know it was not followed when Ford pardoned Nixon or when Poppy Bush pardoned Casper Weinberger. It is the last paragraph from the Pardon Attorney's testimony.

In any event, we have no knowledge or belief that President Clinton intended to pardon anyone for conduct for which he or she was not at least charged and, in most cases, convicted. Moreover, my office has had no contact of any sort with President Clinton or any of his assistants since the master pardon warrant was signed on January 20th.

The "master pardon warrant" refers to the blanket pardon given to those who went to Canada to avoid the Viet Nam draft. You know the ones who couldn’t get mulitple deferrments like Dick Cheney or serve their duty being AWOL from the National Guard? Kinda gives this whole pardon thing a little perspective.

Bottom line, if the pardon guidelines are applied to Libby, he rots in the housgow. If the Unitary Executive thinks all these awesome Constitutional powers are really just tinker toys he got under the Christmas Tree and he can play with them any way he likes…?

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While this can give the LHP's team a great tactical advantage, it also exposes scrum players from both teams to the dangers of catastrophic spinal cord injury.
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