Bush Seeks Secrecy For Pardon Discussions

By George Lardner Jr.
Washington Post Staff Writer
Tuesday, August 27, 2002; Page A01

President Bush's lawyers are trying to keep secret the inside stories of President Bill Clinton's last-day pardons by invoking a claim of executive privilege that extends far beyond the White House.

In pleadings filed in U.S. District Court here this month, including affidavits from White House counsel Alberto R. Gonzales and Deputy Attorney General Larry D. Thompson, the Bush administration contends that the privilege covers not only advice given to a president about individual pardons, but also government papers he has never seen and officials he has never talked to, such as the sentencing judge in a particular case.

The stance, taken in opposition to a lawsuit filed by the nonprofit group Judicial Watch for access to Clinton pardon records, represents a hard line that the government has never taken. In the past, executive privilege has been recognized for advisers who operate within the White House. Bush's lawyers say it covers officials in any part of the government who are asked for input about pardon requests.

The pardon is "a core Presidential power exclusively entrusted to, and exercised by, the President himself, and the documents generated in the process of developing and providing advice to him are squarely subject to the privilege," Assistant Attorney General Robert D. McCallum Jr. wrote in an Aug. 12 memo seeking summary dismissal of the Judicial Watch case.

A legal watchdog group that has challenged both Republican and Democratic administrations, Judicial Watch sued the Justice Department under the Freedom of Information Act (FOIA) last year for records concerning pardons granted or "considered" by Clinton in January 2001. The 177 pardons and commutations that he approved on his last day in office kicked up a storm, especially over the clemency he bestowed on fugitive financier Marc Rich, a man prominently listed on the government's international "lookout" list, and his business partner, Pincus Green.

"It's a bad-faith argument," Judicial Watch President Tom Fitton said of the government's position. "The courts have already said that executive privilege does not exist outside the White House. The Bush administration is now covering up for Bill Clinton, Marc Rich and Pinky Green."

White House spokesman Scott McClellan said: "The president has always been entitled to receive confidential advice and candid assessments from attorneys in the federal government. . . . To release such documents would have a chilling effect on the deliberative process."

In the past, even pardon recommendations sent directly to the president from the Justice Department have been routinely made public by government archivists after several years. But in response to other recent requests for historical files, separate from the Judicial Watch suit, the Justice Department under Bush is asserting the same privilege to maintain the secrecy of pardon records as far back as 75 years ago. One set being withheld on instructions from the White House deals with the clemency granted Marcus Garvey, leader of the back-to-Africa movement, who was released from prison in 1927 after his conviction for stock fraud.

Bush, himself, has yet to invoke executive privilege in the Judicial Watch case, a Justice Department spokeswoman confirmed. In the past, the courts have said he must invoke the privilege personally, but the government's pleadings do not indicate whether he intends to do so.

Thousands of documents about Clinton's final pardons are at issue in the litigation, including many "authored or solicited or received by [Justice] Department officials in the course of preparing and providing information to assist the President in the exercise of his constitutional pardon power," McCallum wrote. These would include records showing whether a government prosecutor, sentencing judge or prison warden thought clemency was warranted and what the FBI found in background investigations that are normally conducted in response to clemency applications.

McCallum invoked a broad "presidential communications privilege" for all documents. He said many of the records are also exempt under the FOIA because they are protected by a narrower subset of executive privilege, the "deliberative process" privilege, in that they reveal "advice, deliberations and recommendations comprising part of the process by which Justice Department officials assisted and advised the President in the exercise of his clemency powers."

Clinton repeatedly short-circuited the pardon process, which requires applications to the U.S. pardon attorney at the Justice Department; investigation by the FBI; consultation with interested parties, from the sentencing judge to the victim; and a report and recommendation by the pardon attorney to the president, after a review by the deputy attorney general.

In his affidavit, Thompson, the deputy attorney general, said his office was withholding from Judicial Watch documents "that are subject to executive privilege," such as memos and e-mails between his staff and the pardon attorney's office; requests for information; and summaries of selected cases, including some with handwritten notes reflecting the deputy attorney general's viewpoint. This appeared to be a reference to Clinton's deputy attorney general, Eric H. Holder Jr.

Thompson said his ability to advise the president about pardons would be "greatly impaired" if these records were "subject to public disclosure."

White House counsel Gonzales said in his affidavit that he is "aware" that Justice is withholding internal documents prepared "in the course of performing their responsibility" to the president. He said the assistance of officials and staff at Justice is "critical" to the president's exclusive authority to grant pardons.

In seeking dismissal of the case, McCallum also sought to head off congressional interest in the records. "Congress," he wrote, "has no constitutional authority to exercise oversight over the President's pardon power, or, therefore, to compel public production of records relating to the President's exercise of his pardon power."

Bush has granted no pardons or commutations since taking office. As of July 31, he had denied 508 pardon petitions and 1,346 commutation requests.