By Carrie Johnson
Washington Post Staff Writer
Monday, November 24, 2008
With a backlog of applications piled up at the Justice Department, high-profile criminals and their well-connected lawyers increasingly are appealing directly to President Bush for special consideration on pardons and clemency, according to people involved in the process.
Among those seeking presidential action are former junk-bond salesman Michael Milken, who hired former solicitor general Theodore B. Olson, one of the nation's most prominent GOP lawyers, to plead his case for a pardon on 1980s-era securities fraud charges. Two politicians convicted of public corruption, former congressman Randy "Duke" Cunningham (R-Calif.) and four-term Louisiana governor Edwin W. Edwards (D), are asking Bush to shorten their prison terms.
It remains to be seen how Bush will respond to these requests as his term ends. The president has used his broad pardon powers rarely during seven years in office, granting 157 pardons out of 2,064 petitions, and only six of 7,707 requests for commutations, according to an analysis by former Justice Department lawyer Margaret C. Love.
Aggressive appeals for clemency at the end of an administration are not unusual, but they can raise concerns about influence peddling and fairness, particularly if the president and his legal advisers are not fully transparent, pardon scholars say.
During his last days in office, President Bill Clinton prompted congressional and federal investigations by pardoning 140 people, including his brother, former Arkansas real estate partner Susan McDougal and fugitive financier Marc Rich. White House officials and former deputy attorney general Eric H. Holder Jr., now a contender for attorney general under President-elect Barack Obama, testified about the last-minute pardons in fiery congressional hearings.
Bush has not mentioned pardons often, but in a statement released in July 2007, he said "the Constitution gives the President the power of clemency to be used when he deems it to be warranted."
White House spokesman Tony Fratto said, "Generally the president will review pardon recommendations as he has throughout his presidency, in a thoughtful way . . . on a case-by-case basis, and he'll make his determination."
Not all prominent criminals chose to seek presidential intervention. Alaska Sen. Ted Stevens, a powerful Republican, told reporters this week that he would not ask Bush to pardon him on his recent seven-count felony conviction.
Onetime vice presidential aide I. Lewis "Scooter" Libby, whose prison term Bush commuted last year, has not submitted a formal pardon request, the Justice Department said.
Efforts by high-profile felons come as a list of more routine applicants awaits action from a special Justice Department pardons office, a process that may take up to 18 months. Last month alone, 103 felons submitted pardon applications and 280 sought commutation of their prison terms, according to department statistics. Those figures stack atop an already daunting backlog of hundreds more petitions.
The overwhelming majority of petitioners are not household names. Rather, they are people who served prison time for garden-variety fraud or drug offenses and now seek the president's help so they can vote, live in public housing, own handguns or find jobs.
Clemency is the umbrella term for people seeking presidential relief after being convicted of a felony crime. Some applicants request their sentences be commuted, or shortened, by White House action. Others seek a formal pardon, described by one former Justice Department official as "an official statement of forgiveness."
To be considered, felons using the normal process submit applications to the department's Office of the Pardon Attorney, led by former Marine Corps lawyer Ronald L. Rogers. The FBI provides information about the crime and the person's background, and prosecutors weigh in with their concerns. The cases flow through to the Justice Department's second in command, then to the White House, where associate counsel Kenneth Lee processes them. Final authority rests with the president.
Justice Department regulations say that people are eligible for pardons if they have been convicted, served their sentence and waited five years since their prison release.
Many steps in the cumbersome process can be averted in special cases, since the Constitution gives the president nearly absolute power to grant clemency. The office does not have a formal "first in, first out" policy for when claims should be processed, and at times late applications from high-profile officials with government ties have jumped ahead in the line.
President George H.W. Bush, for example, granted pardons to officials involved in the Iran-contra scandal. Only a week before former defense secretary Caspar W. Weinberger was scheduled to face trial, in a document dated Christmas Eve, the president pardoned Weinberger and several associates, including Robert C. McFarlane and Clair E. George.
Lawyer Robert S. Bennett, who defended Weinberger, said in an interview that he laid the groundwork for a pardon nearly a year in advance. He identified intermediaries to gauge the reaction of then-House Speaker Thomas S. Foley (D-Wash.), consulted with other lawmakers and arranged newspaper opinion pieces. Only weeks before the award, White House officials asked Bennett to complete the pardon paperwork even though Weinberger had not been tried.
"I was the orchestra leader," Bennett said. "Then you've got to get important players to play the instruments."
In the cases now pending, criminals have turned to politically connected lawyers to work the system. Former White House lawyer H. Christopher Bartolomucci is advocating on behalf of clemency clients. Olson is trying to help Milken, who tried unsuccessfully to win clemency from Clinton. Milken was released from prison in 1993.
In the background of the debate is how, if at all, Bush will respond to pressure from left-leaning interest groups and congressional Democrats, who are calling for criminal investigations of former administration lawyers and members of the intelligence community who eavesdropped on Americans without warrants and used harsh interrogation tactics against terrorism suspects.
President Abraham Lincoln bestowed such blanket amnesty on soldiers who took part in the Civil War, and President Jimmy Carter took similar action for people who resisted fighting in the Vietnam War between 1964 and 1973. But scholars disagree about whether the current president could preemptively pardon members of the intelligence community without naming them and specifying the conduct for which they would receive amnesty.
One House Democrat, Rep. Jerrold Nadler (N.Y.), is sufficiently concerned that he introduced a resolution Friday demanding that the president refrain from pardoning "cronies who may well be guilty of serious criminal offenses."
John M. Deutch, the former CIA director criticized by the agency's inspector general for accessing and storing classified memos on an unprotected home computer, arranged to plead guilty to a misdemeanor offense in the waning days of Clinton's term. The president then pardoned Deutch in a last-minute arrangement that some Washington lawyers say could be repeated this time around.
Career prosecutor John Durham has been investigating the destruction of CIA videotapes depicting alleged torture of suspects with ties to al-Qaeda for nearly a year, but no charges have been filed. Meanwhile, the attorney general recently appointed another prosecutor, Nora R. Dannehy, to determine whether crimes were committed by former Justice Department officials in the firings of nine U.S. attorneys in 2006.
Officials involved in those cases, including former attorney general Alberto R. Gonzales and former CIA operations director Jose A. Rodriguez Jr., have not submitted clemency applications, a department spokesman said.