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A former White House lawyer said he had no idea the pardons office was considering indictments rather than only convictions in their deliberations.
“I definitely didn’t know that,” said Kenneth Lee, the associate White House counsel during Bush’s second term who dealt with the pardons office. “If we knew these kinds of things, our decision making may have been different.”
For a closer look at pardons granted and denied during the Bush Administration, explore the interactive.
Leggett lives with her husband in Hot Springs, Ark., where they own a boat repair shop. She said she did not remember why she sought the pardon.
Kenneth Stoll prosecuted both Armstead and Leggett when he was an assistant U.S. attorney in Little Rock. Stoll said he does not recall either woman. The pardons office sought a recommendation for Leggett from the prosecutors’ office after Stoll had retired. He was not asked his opinion. But, he says now, Leggett’s crime was a more significant offense.
Leggett and her husband have been married for more than 30 years. They have owned or operated nearly a dozen businesses.
Though she was divorced when she applied for a pardon, Armstead would still appear to meet the “stability” test. She said her life has remained on an even keel — she continues to operate her beauty salon and does not have excessive debts.
For applicants who appear to be solid candidates, the pardons office considers the views of prosecutors and judges. Armstead’s case never reached that stage.
But the pardons office solicited advice on Leggett — and received lukewarm answers.
The U.S. attorney’s office in Little Rock took no position, and the judge did not object to a pardon. But Leggett’s bid was opposed by a high-ranking Justice Department official. Eileen J. O’Connor, the assistant attorney general in charge of all criminal tax matters, advised the pardons office that Leggett’s application should be denied because she did not “fully admit unconditional responsibility” for her crime.
O’Connor noted that Leggett omitted from her pardon application that she had rented the apartment under a false name and made a utility deposit as part of the ruse to file false returns.
“It appears that she has attempted in her quest for a pardon to minimize her involvement in the crime and shift the blame to her husband,” O’Connor wrote.
This could have posed a serious problem for Leggett. The Justice Department explicitly states that applicants need to take personal responsibility for their crimes and show remorse.
But in this instance, pardons office lawyers appear to have accepted what Leggett’s husband said at trial, which is that he had talked his wife into participating in the scheme.
Another factor in pardon applications is whether the person has a practical need for presidential mercy.
“If a person doesn’t have a reason, it doesn’t hurt,” Adams said of the policy. “And if a person wants forgiveness, that is fine, but if the need is for licensing or business ownership or to obtain a franchise, that will help, and the office will try to push it farther.”
But that did not help Armstead.
The declared intent of the Founding Fathers was to have presidential pardon power right miscarriages of justice. Former Supreme Court chief justice William H. Rehnquist called pardons a “fail safe” against the “unalterable fact that our judicial system, like the human beings who administer it, is fallible.”
Today, the pardons office places little emphasis on trying to help those who might be innocent. Applicants who claim they were victims of unjust treatment “bear a formidable burden of persuasion,” the pardons office says on its Web site. In practice, officials say, that burden is insurmountable.
Article II of the Constitution gives presidents the authority to “grant reprieves and pardons for offenses against the United States.’’ It was among the few royal powers carried over from the British monarchy. In 1788, Alexander Hamilton wrote in Federalist No. 74 that the president would be the best “dispenser of the mercy of government.” Groups of men, he argued, were too easily swayed by popular passions.
In 1893, Grover Cleveland issued an executive order delegating the paperwork on pardons to a single office inside the Justice Department. Today, the office employs a lead pardon attorney, a deputy and four additional lawyers. They review hundreds of pardon applications a year.
Leggett and Armstead’s applications reached Washington just as this office gained more clout than it ever had.
The reason could be traced to one of President Bill Clinton’s last acts, his pardon of Marc Rich. The decision became a scandal after reports that Rich’s former wife, a big Democratic donor, gave $450,000 to the Clinton Presidential Library. In congressional hearings that followed, it emerged that Eric H. Holder Jr., then deputy attorney general, had encouraged Rich’s attorneys to apply directly to the White House.
In response, the incoming Bush administration vowed that the pardons office would vet every applicant.
The office lists on its Web site a five-point test for applicants. The first test is straightforward: Candidates must wait five years after completion of their sentences before applying.
Next, lawyers consider the “conduct, character and reputation” of applicants after they served their sentences. The third point is the need of the applicant, and the fourth is the opinion of prosecutors and judges.
The final point is acceptance of responsibility for their crimes, remorse and atonement.
Pardons office lawyers assess whether applicants lead what Adams called “stable” lives. An applicant who had been divorced would give pause. Owing excessive debt to credit card companies or banks — as many Americans do — could also be a red flag.
“A person in debt is always in some risk of doing something inappropriate to get out of it,” Adams said. “It’s only natural for the office to be a little cautious.”
A review of pardons cases found that some applicants were rejected because they had filed for bankruptcy in the years after their conviction or were unemployed, a situation that is not unusual for convicted criminals, who often have trouble rebuilding their lives.
But Bush pardoned white applicants who had filed for bankruptcies, had driven drunk or had illegally possessed firearms. Two successful applicants lied to the FBI during the background checks that are part of the application process.
By Bush’s second term, it was clear that putting decisions in the hands of the pardons office had dramatically slowed the flow of pardons. Elected as a “compassionate conservative,” Bush was on pace to become the least-forgiving two-term president in history.
In 2006, White House Counsel Harriet Miers became so frustrated with the paucity of recommended candidates that she met with Adams and his boss, Deputy Attorney General Paul McNulty.
Adams said he told Miers that if she wanted more recommendations, he would need more staff. Adams said he did not get any extra help. Nothing changed.
“It became very frustrating, because we repeatedly asked the office for more favorable recommendations for the president to consider,” said Fielding, who was Bush’s last White House counsel. “But all we got were more recommendations for denials.”
In 2007, the pardons office was hit with its own scandal.
Adams had opposed a pardon for Chibueze Okorie, a Nigerian-born minister beloved by his Brooklyn church. Okorie faced deportation because of a 1992 conviction for possessing heroin with intent to distribute.
“This might sound racist,” Adams told colleagues, according to a report from the Justice Department’s inspector general, but Okorie is “about as honest as you could expect for a Nigerian. Unfortunately, that’s not very honest.”
When asked by investigators in the inspector general’s office to explain his remarks, Adams said that Nigerian immigrants “commit more crimes than other people” and that an applicant’s nationality is “an important consideration” in pardons, according to the report. “It’s one the White House wants to know about,” Adams told investigators.
The inspector general’s office disagreed.
“We believe that Adams’ comments — and his use of nationality in the decision-making process — were inappropriate,” the report concluded. “We were extremely troubled by Adams’ belief that an applicant’s ‘ethnic background’ was something that should be an ‘important consideration’ in a pardon decision.”
Adams said his comments about Okorie were focused on his ethnicity, not his race, and were taken out of context by the inspector general’s office.
Adams left his post and retired. He was replaced in April 2008 by Rodgers, a former military judge who had prosecuted major drug crimes for the Justice Department’s criminal division. Shortly after taking over, Rodgers hired the office’s first African American staff attorney.
As the Bush presidency drew to a close, the inability to grant more pardons continued to vex White House officials. Throughout 2008, the White House sent e-mails to the pardons office asking for more candidates. White House lawyers repeatedly asked the office to reconsider cases in which it had recommended denials.
On Sept. 16, 2008, Lee, the associate White House counsel, asked about two pending applicants whose attorneys had contacted the White House.
“As noted previously, we are hoping to get as many clemency recommendations as possible over the next few months,” Lee wrote. “To the extent that these two petitions may be ‘easy’ cases (and I defer to you on that question), it would be helpful if these and other ‘easy’ cases are given priority.”
Rodgers forwarded the e-mail to a staff attorney with a warning to ignore anything in Lee’s note that “could be construed as armchair quarterbacking.”
With no more than 30 recommendations from the pardons office by the fall, the White House pushed to reverse two denials, Lee and others said in interviews. Then it did something Bush had vowed to avoid, taking up a pardon application from a felon whose case had not been reviewed by the pardon attorney.
Isaac Toussie, a New York developer and Republican political donor, pleaded guilty in 2001 and 2002 to mail fraud and a real estate scheme in which false documents had been submitted to allow low-income buyers to obtain insured mortgages from the Department of Housing and Urban Development. Toussie served five months in prison, another five months of home detention and three years of supervised release. He also paid a $10,000 fine.
Toussie had not waited the requisite five years, but one of his attorneys, Bradford Berenson, had been an associate White House counsel during Bush’s first term. Berenson took Toussie’s case directly to the White House — and it worked. On Dec. 23, 2008, Toussie’s name was on the final list of pardons granted by Bush.
That action sparked fury among hundreds of New Yorkers who were involved at the time in a civil litigation suit against the Toussie family over a second real estate project.
After eight years of caution on pardons, Bush had stumbled. On Dec. 24, 2008 — four weeks before Obama’s inauguration — Bush became the first president to announce withdrawal of a pardon.
Bush left office having denied more than twice as many applicants as Clinton. Richard Nixon pardoned more people in a single year than Bush pardoned during two full terms.
In the final hour of his presidency, Bush confided to Obama his deep frustrations with the pardon process. In the limousine ride the two men shared up Pennsylvania Avenue on Inauguration Day, Bush offered his successor this piece of advice: “Announce a pardon policy early on and stick to it.”
Bush wrote in his memoir that he had been besieged by last-minute pardon requests from politically connected people who did not go through the pardons office.
“At first I was frustrated,” he wrote. “Then I was disgusted. I came to see 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.”
Bush resolved to rebuff the personal requests.
The incoming administration needed little prodding on this issue. Obama’s top legal advisers already were convinced that the pardon system put the poor at a disadvantage. Gregory Craig, who would become Obama’s White House counsel, said he began raising the possibility of reform during the transition.
Craig said pardons were “clearly much more available to people with economic means than those without.”
Working with then-Deputy Attorney General David Ogden, Craig developed a plan to take the vetting of pardon applicants away from career prosecutors.
“I couldn’t completely understand the standards being applied by the pardons office,” Ogden said in an interview. “They seemed very subjective in some cases, and I thought the standards should come from the president, not from the pardons office.”
Craig said he believes pardon applications should be sifted by an independent commission of former judges, prosecutors, defense attorneys and representatives of faith-based groups. The commission would make recommendations directly to the president.
Officials envisioned a process in which the president would announce decisions quarterly instead of the traditional grants at Thanksgiving and Christmas. A team of lawyers also suggested that the president explain his decisions, to build confidence in the process and encourage people to apply.
Officials were struck by comparisons between the federal system and those of the states. Depending on the state, pardons can be granted by governors, legislatures or state pardon boards. During the period in which Bush pardoned 189 people, Pennsylvania pardoned more than 1,000.
Several states have adopted the practice of explaining their decisions. Virginia issues public notices praising specific aspects of an applicant’s rehabilitation.
Obama officials believed changes in the pardon system could be made by executive order. But two years later, pardon reform efforts were dead. The effort faded away as its key proponents, Ogden and Craig, left the administration.
“We just never got there before I left,” said Ogden, who resigned in 2010.
The pardons office continues to function much as it did under Bush, with Obama pardoning only applicants recommended by the office. Obama has denied 1,019 pardon requests, more than Clinton denied during his two terms.
dafna.linzer@propublica.org, @DafnaLinzer
jennifer.lafleur@propublica.org, @j_la28
Post researcher Julie Tate and ProPublica researchers Liz Day and Robin Respaut contributed to this report. ProPublica is an independent, nonprofit newsroom that produces investigative journalism in the public interest.
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