Guest Host: Susan Page

The U.S. Constitution gives presidents the power to grant clemency to convicted criminals. This usually takes the form of a pardon or a reduction in the length of a sentence. It’s seen as a way to redress injustices that can occur in any legal system. But the process has been criticized for being too subjective and too secretive. An investigative reporting team examined presidential pardons over the past decade. Among their just-released conclusions: white pardon applicants are overwhelmingly favored over minorities. The Justice Department’s pardons office denies that race is a factor. Guest host Susan Page will talk with a panel of experts about the allegations and whether changes should be made in the way presidents choose whom to forgive.

Guests

  • Serena Nunn a legal assistant in a Georgia public defenders’ office; she is seeking a presidential pardon for a 1989 drug conviction.
  • Governor Robert Ehrlich Jr. former Republican governor of Maryland (2003-2007); partner in the law firm King & Spalding.
  • Margaret Colgate Love lawyer representing applicants for presidential pardons and sentence commutations; U.S. Pardon attorney (1990-1997).
  • Chris Bartolomucci attorney in private practice; as former associate counsel to the president, 2001-2003, he assisted the president with pardon applications.
  • Dafna Linzer senior reporter, ProPublica.

Transcript

  • 10:06:56

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today, sitting in for Diane Rehm. One of President Clinton's last acts in office was to pardon to Marc Rich, a fugitive financier. Clinton was widely criticized for the decision. When George W. Bush became president, he sought to avoid a similar controversy and vowed that every pardon applicant would be carefully vetted. But new findings from an examination of pardons over the last decade suggest bias and political influence weigh heavily in the process.

  • 10:07:29

    MS. SUSAN PAGEJoining me in the studio to talk about presidential pardons: investigative reporter Dafna Linzer of ProPublica, Atty. Chris Bartolomucci, who assisted with presidential pardons under George W. Bush, and Margaret Love, a U.S. Pardon office attorney under President George H.W. Bush and President Clinton. Welcome to "The Diane Rehm Show."

  • 10:07:51

    MR. CHRIS BARTOLOMUCCIThank you.

  • 10:07:52

    MS. MARGARET COLGATE LOVEThank you.

  • 10:07:53

    PAGEWe are inviting our listeners to join our conversation later in this hour. You can call our toll-free number, 1-800-433-8850. Send us an email to drshow@wamu.org, or find us on Facebook or Twitter. Well, Dafna, you have had stories on the front page of The Washington Post Sunday and again today about the ProPublica investigation into presidential pardons. Tell us what you found.

  • 10:08:20

    MS. DAFNA LINZERWell, we were surprised actually by what we found. And we went into this process wondering whether or not there was an issue of gender bias or something else going on with pardons. And what we've found is at the most significant aspect to deciding a presidential pardon is really found in the applicant's race. White applicants were nearly four times as likely to be pardoned than all other minorities combined, and black applicants fare the poorest in the process.

  • 10:08:51

    MS. DAFNA LINZERAnd this is after we weighed for all kinds of variables. So we looked at sentence and offense of the applicant, and then, even still, we see that white applicants had a far greater advantage.

  • 10:09:04

    PAGENow, Dafna, did you come to a conclusion about why this was so?

  • 10:09:08

    LINZERIt's interesting. You know, the data doesn't explain why race ended up being the most significant factor. So what we did was we examined the work of the pardon attorney itself -- what's going on inside the office of the pardon attorney and the Justice Department, and what kind of subjective factors they also use in trying to decide who is a meritorious candidate and who is not?

  • 10:09:32

    PAGEWe asked that someone from the Office of the U.S. Pardon Attorney be on the program today, but they declined. They did later release a statement saying that the pardon attorney's office does not consider race in its review of clemency applications. Margaret, you've worked on the pardon process for years. Is this is a surprise to you?

  • 10:09:50

    LOVEYes and no. I guess the no part of it is that there is a certain subjectivity that enters into the decision-making of the pardon attorney's office, and there is a sort of -- a profile of the typical pardon applicant that is -- pretty much fits, I think, the ordinary white middle-class person. And I think that's probably explains a lot of it, but...

  • 10:10:26

    PAGEWhat factors are you thinking of?

  • 10:10:28

    LOVEWell, there's a certain -- I think, when the lawyers who staff these pardons look at an application, they're looking for a degree of stability and sort of ordinary middle-class, middle-Western virtues. It was something that was hard to resist because the president is interested in having people who are totally safe, and that's a problem.

  • 10:10:57

    PAGEBut, Dafna, when you were looking at comparing similar cases, did you find that there was a difference in what we might call middle-class virtues between applicants of different races?

  • 10:11:08

    LINZERYeah, it's a great question. Now, we found people, as you said, who were nearly identical, right down to race. Two women who were from the same town, both from Little Rock, Ark., who had been convicted of, you know, identical -- you know, identical convictions. The only thing that was different, really, was race and that, frankly, the white applicants had a little bit more of a stiffer sentence and little bit more of a harsher crime. And, in fact, they ended up being the ones who were pardoned, and the African-American applicants were denied.

  • 10:11:42

    PAGEChris, you've worked on the pardon process at the -- from the perspective of the White House during the Bush administration. Do you find this surprising?

  • 10:11:49

    BARTOLOMUCCIIt's surprising and provocative and, indeed, troubling. And it's surprising from the perspective of someone who has been in the White House because we did not request information on race. We did not consider it in the process, so it comes as a surprise to learn that the outcomes have this correlation, this apparent correlation with race.

  • 10:12:09

    PAGENow, you say you don't ask for a person's race when considering a pardon. But with the documentation that you presented, are you aware of their race?

  • 10:12:18

    BARTOLOMUCCIMost of the times, no. Often, you have the person's name, but there's no listing for race or ethnicity. Sometimes you can infer to that from other facts or from someone's name, but it's not something that was sought and was never discussed as a basis for a grant or a denial of a pardon.

  • 10:12:37

    PAGEDafna?

  • 10:12:38

    LINZERYeah, I think what was so interesting here, from what I found, was actually how little people in the White House really did know. They had no idea what the race of any applicant was, as Chris was describing, but inside the office of the pardon attorney, they do know the race of every single person that they are recommending. It's not on the application. Applicants aren't asked their race, but it's in all of the documentation that they get on each person in the pre-sentence report and the FBI background check.

  • 10:13:05

    LINZERIf they were convicted of drug crimes, it's in the DA report. If they were in the Bureau of Prisons, it's in the database. That information is known inside the pardon office, but it is completely scrubbed by the time it arrives in White House Counsel's office.

  • 10:13:16

    PAGEAnd what is the effect of that, do you think, the fact that at the lower -- at the Justice Department level, they are aware of a prospective candidate's race, and when it gets to the White House, they often aren't?

  • 10:13:29

    LINZERWell, I think that it's a really interesting thing. One thing that, you know, was a quote in the story that was in Sunday's Washington Post from President Bush's last White House counsel, Fred Fielding, was that they believed that it was race blind throughout. They believed that if they didn't know the race, no one knew the race, and they were troubled that race is sort of introduced into an applicant's file in any way that that could be a problem.

  • 10:13:54

    LINZERHow it comes out, you know, for each applicant and each attorney who's assigned a case, I'm not sure. But I do know, you know, based on our study, that minorities are just having a very, very difficult time getting a pardon.

  • 10:14:07

    PAGEMargaret, when you were working in the pardon office, were you generally aware of the race of an applicant?

  • 10:14:13

    LOVESure. It showed up in the pre-sentence report. When you look at the documentation of what the crime was, it was in all the documentation. And it's sort of surprising to me that the White House didn't understand that the pardon attorney does look at this documentation. And so, yes, you are definitely aware of it.

  • 10:14:35

    PAGEYou know, there were several examples in the two days of stories of people within the process not being aware of how the other side was proceeding. Tell us about that, Dafna. It seemed like -- it seemed surprising to me, in a system like this, that even those inside weren't quite aware of how the other parts were working.

  • 10:14:51

    LINZERRight. I think, to me, the biggest revelation was the issue of examining of, you know, an individual applicant based on the crimes for which they were indicted for rather than what they were convicted of. In fact, when I first ran across this from one of the women in Little Rock, she had been indicted on four accounts of tax fraud, basically underreporting her income on IRS filings over a course of four years. She fought it before trial. The government dropped three counts.

  • 10:15:23

    LINZERShe pleaded guilty to one. But she was denied for a four-year course of criminal conduct, although she was never convicted of anything like that. When I first came across it, I thought, oh, this was a mistake. Somebody made a mistake here in describing what her crime was. Then it turned out that that wasn't a mistake at all, that, for the pardon office, that could be a routine, you know, maybe haphazard but still routine. In the White House Counsel's office, they didn't know that.

  • 10:15:50

    LINZERAnd, frankly, you know, having looked at some of the documentation myself and the way that it is written and presented, at least today, to the White House Counsel's office, I see almost no possible way for them to have known that without being told in advance that that's the way the paperwork looked.

  • 10:16:07

    PAGESo, Chris, from your perspective from having worked on the inside, is that -- since you had -- or did you think you had a pretty good idea about how it was working at the Justice Department?

  • 10:16:15

    BARTOLOMUCCINo. I felt I had a good sense of how the Justice Department was operating, and I think I did understand that the department considered what was done and not what the -- exclusively what the technical crime was. One of the things that the process is designed to do is to require the applicant to be very forthcoming about what he or she did. So that's the first question. You know, what did you do? Lay it all out, and they want you to be very forthcoming about that, and I understood that that's what was being considered.

  • 10:16:46

    PAGEAnd what was President Bush's attitude toward pardons? Of course, it was one of the biggest controversies for his predecessor as he was walking out the door.

  • 10:16:56

    BARTOLOMUCCIWell, you're right, and his predecessor caused some controversy with the pardons that were granted at the very end of that administration. So I think the Bush administration resolved certainly to go very much by the book, at least at the outset. When I was there from 2001 to 2003, it was very important to us that applicants go through the standard process that had existed for years and years and years and that we wait until a recommendation, yay or nay, is received from the Justice Department. So the idea was to go -- be very much by the book.

  • 10:17:28

    PAGEMargaret.

  • 10:17:28

    LOVEWell, I was just going to say that's true enough. But, I think, what happened in the Bush administration in leaving it entirely to the Justice Department, they kind of abdicated making policy, and so they got very little out of the Justice Department. And at the end of the Bush administration, I think there was a concern that there'd be more recommendations, and there was very little coming out of the Justice Department.

  • 10:17:55

    LOVEAnd so, in a sense, the same thing happened at the end of the Bush administration that happened at the end of the Clinton administration, which was that people did end-runs around the process.

  • 10:18:06

    BARTOLOMUCCIWell, I want to take issue with something that Margaret just said. There was no abdication in the Bush administration. One of the first things we did was to communicate President Bush's policy views with respect to clemency to the Justice Department to tell them what standards we wanted to be applied, what aspects we thought would go into a favorable clemency application. So they knew where our standards were, and we didn't simply leave it to the DOJ.

  • 10:18:30

    PAGEWe're going to take a short break, and when we come back, we're going to talk on the phone with a young woman from Georgia who is herself seeking a presidential pardon. Stay with us.

  • 10:20:04

    PAGENow, joining us by phone from Georgia is Serena Nunn. She is seeking a presidential pardon for a 1989 drug conviction. Serena, thanks for being on "The Diane Rehm Show."

  • 10:20:16

    MS. SERENA NUNNOh, you're welcome. Thank you for having me. And I wanted to say hi to Dafna and Margaret Love, specifically, because I know them.

  • 10:20:23

    PAGEAll right. So would you tell us a little -- just very briefly about your case and your conviction?

  • 10:20:32

    NUNNYes. Basically, in 1989, at age 20, I was tried and convicted at federal court for drug charges. After serving almost 11 years, President Clinton commuted my sentence in July of 2000. After that, I graduated -- I finished up my undergraduate degree, and then I went on to law school at University of Michigan. I graduated from there in 2006. I currently live in Georgia, and I am hoping to be admitted to the Georgia Bar.

  • 10:21:04

    PAGEAnd do you need a pardon in order to be admitted to the bar there?

  • 10:21:09

    NUNNIt's my understanding that it's not a prerequisite, but I believe that it would make it virtually certain that I could be.

  • 10:21:18

    PAGEAnd do you think it would matter -- say, you were admitted to the bar, do you it think it might matter to clients you represent, whether you obtain a pardon or not?

  • 10:21:27

    NUNNAbsolutely. I think that what a pardon would do for me is it basically would restore my credibility. I don't think that there would be anything greater than the president pardoning me and basically placing me in a position that I was in prior to my conviction. And I think that that means a lot to the clients that you represent because, when you practice, you're an officer of the court. And people, you know, they trust you. They look at to you to handle, you know, situations that are extremely important in their life, their freedom.

  • 10:22:02

    NUNNAnd, yes, I think that a pardon would definitely be beneficial for me in the practice of law.

  • 10:22:09

    PAGEDo you think, Serena, that you deserve a pardon?

  • 10:22:15

    NUNNYou know, I think the pardon process -- the way I understand it is that it's based on your conduct and rehabilitation, you know, after your incarceration. And I believe that all the things that I've done over the past 11 years, I think that that qualifies me for a pardon, you know, finishing up my undergraduate degree, graduating from law school, the community service that I do in terms of public speaking to at-risk youth and, you know, young adults, college students and different advocacy groups. So I believe that I've met that requirement, and I mean, I just humbly request one.

  • 10:22:57

    PAGENow, with the headline from the ProPublica study is that minorities have a much harder time in getting pardons than white applicants. As an African-American, let me ask you, does that surprise you?

  • 10:23:10

    NUNNYou know, I -- actually, it does surprise me. I was shocked when I read the information in the article. I never really thought -- first off, I don't know a lot of people who have ever applied for a pardon. So, I mean, without knowing a lot of people who applied and if they actually received one, to know that whites were more likely to receive pardons and that most blacks had a very hard time receiving a pardon, it was shocking. It was.

  • 10:23:44

    PAGEAnd tell us, for you, where do you stand in the pardon process?

  • 10:23:49

    NUNNWell, my application was submitted in May. Basically, I think the investigation can take, what the article said, a couple of years. And I think that they begin their investigative process, I don't know, maybe soon after you get -- soon after you submit your application. I mean, there is a -- you know, a back and forth of sort of information. Like, if they want additional information, you have to provide that for them. But I don't know if you're constantly updated on the progress or not, but my application is in. That's pretty much where I stand right now.

  • 10:24:23

    PAGEIf somebody called you and said, I'm from the White House, and the president has decided to grant your pardon, how would you feel?

  • 10:24:31

    NUNNEcstatic. Like, I don't think that I could find words to describe that if I was actually granted a pardon.

  • 10:24:38

    PAGEAll right. Serena Nunn, thank you so much for taking the time to be with us today on "The Diane Rehm Show."

  • 10:24:44

    NUNNThank you so much for having me.

  • 10:24:46

    PAGEThat was Serena Nunn. We were speaking with her by phone from Georgia. She is seeking presidential pardon for a 1989 drug conviction. Any reactions to what we heard from Serena? Margaret, do you think she sounds like a good applicant, a likely applicant to receive a pardon?

  • 10:25:01

    LOVEShe certainly sounds pretty good to me. And I knew her case, her commutation case, and so I suspect she will be a shoo-in.

  • 10:25:11

    PAGEA shoo-in? Chris, what does it look like to you? Of course, we're not involved in this process, any of our panelists ourselves, but...

  • 10:25:19

    BARTOLOMUCCIWell, I have to say that what I know about this case is what I've heard just now, today. But the fact that she has previously received a commutation certainly is a good sign for her.

  • 10:25:29

    PAGEYou know, we have an email from Steve, who says, "This just sounds like a numbers game, where black criminals equal smaller percentages. It's hard to come to a fair conclusion from the statistics you used." Dafna, maybe we should back up and say -- describe to us how you did this analysis to come to the conclusion that you did.

  • 10:25:47

    LINZERSure. And just to address the question on email, what we did here, just so you know, is not just sort of look at raw numbers. If we had done that, if we had just looked at white numbers, the race disparity would be through the roof. Twelve percent of white applicants who applied were pardoned. Less than 1 percent of black applicants who applied were pardoned. We didn't think that that made sense. We wanted to weigh for all the other factors.

  • 10:26:12

    LINZERIt's important for each applicant what the nature of their crime was, what their sentence was, how long ago it occurred, what their age is, their gender. We look for as many factors as possible. The pardon's office also considers financial stability, marital stability and trying to look at a person's post-conviction character. So we basically created a sample of 500 people who were -- most of whom were denied pardons during the Bush years. Thirty five people on our sample received pardons. It was a randomly selected, you know, computer-selected sample of people.

  • 10:26:51

    LINZERAnd then, by hand, we spent a year with a team of researchers, looking up every single thing we could in public records about each person, you know, everything about their crime, and then just stuff about their lives generally. Had they had prior convictions? Had they had subsequent convictions? Had they ever filed for bankruptcy? Had they ever had a lien, a tax lien against them? Do they own their own homes? Those are all proxies for financial stability. Are they married? Had they ever filed for divorce?

  • 10:27:22

    LINZERAnything that we could find in public records in order to get a very solid sample of each individual, when all of those things are considered, that's where you still have the race disparity, which, as I said, shrinks significantly from the raw numbers but still, you know, is statistically significant that whites would be, you know, nearly four times as likely as all the minorities.

  • 10:27:44

    PAGESo this is whites who look just like the black applicants. They're much more likely to be able to get a pardon, even if there are no other major differences in sort of the characteristics or crimes, their behavior, since being convicted?

  • 10:27:58

    LINZERThat's right. That's after we've equalized everything. Now, this is -- these are all the objective variables that come into play. There are subjective variables that come into play that are not part of our sample. Has the applicant engaged in community service? You know, how remorseful is the applicant, you know, on paper? There are -- either there are all those kinds of things which the pardon office also examines looking at each person.

  • 10:28:26

    LINZERThe issue for us was, you know, are those subjective standards so subjective that that's what's to account for whites being four times as likely to win a pardon? You know, if so, then, you know, there's a -- something is occurring, you know, at the discretionary point inside the pardon office.

  • 10:28:44

    PAGEChris.

  • 10:28:45

    BARTOLOMUCCIWell, Dafna introduced the point that I was just about to make, that there are a number of individual subjective factors that are very important in the process. The extent to which the person is remorseful, the quality of their letters of support, the character and reputation of the individual, their good works in the community, whether they have been candid in the pardon process, how their interview with the FBI went.

  • 10:29:06

    BARTOLOMUCCISo I think any number of crunching is going to have difficult time taking all of these subjective variables into account. And just looking at the numbers isn't going to tell you the entire story.

  • 10:29:16

    PAGEMargaret.

  • 10:29:17

    LOVEI don't see why that should have a racial component, however. And so I think hearing Dafna describe the way she did, the study, it actually -- I think I'll take back what I said a little earlier about my being shocked. I am a little shocked at that. And I think that I do want to make the point here that the subjectivity is so great in this process that people who appear to be the same can be treated very differently. There are different lawyers in the pardon attorney's office who have very different standards as between them.

  • 10:29:55

    LOVEAnd I can tell you from experience in reviewing a lawyer's work, by the time it gets to the pardon attorney, that bias of a staff lawyer has really infected the case. It's really interesting to me that this discussion could be had at this point in this administration. I really hope that the issue of who gets pardons and why there should even be a pardon process and what the purpose of a pardon program is will begin to be discussed.

  • 10:30:27

    LOVEBecause the need for a pardon among so many people who are subject to lifetime disabilities, no matter how much they try to turn their lives around, is so very important. And this is the only game in town.

  • 10:30:43

    PAGEAnd whether you think there should be a lot of pardons or only a few pardons, certainly they should not be based on what your race is, Dafna.

  • 10:30:50

    LINZERRight. And I think that this is one of the things that we found outside of the study, but going through so much internal documentation -- and this also really surprised people in the White House, in the current White House and in the former administration, you know, examples of when an applicant has children outside of a marriage was a perfect example. There are numerous black applicants we found were -- who were denied pardons, and in their letters, their children were described as illegitimate or born out of wedlock.

  • 10:31:20

    LINZERFor successful white applicants, there were seven in the Bush administration who had children outside of a marriage. They were just described as children who are from a previous or non-marital relationship, completely different language used. There were many applicants who were denied for having used or owned a firearm, and there were many white applicants who were approved all for the -- you know, all have the exact same marks against them. So we saw a lot of that.

  • 10:31:48

    LINZERAnd on the remorse thing also, you know, Chris represented successfully a pardon applicant who, you know, who had, a stage in his post-conviction, had tried to recant his guilty plea. That would never have passed from what we've seen from African-American applicants.

  • 10:32:06

    PAGEI'm Susan Page, and you're listening to "The Diane Rehm Show." We're now joined by phone from New York by Robert Ehrlich Jr. He's a -- he was -- he's a Republican who served as the governor of Maryland from 2003 to 2007. Gov. Ehrlich, thanks so much for being with us.

  • 10:32:22

    GOV. ROBERT EHRLICH JR.My pleasure.

  • 10:32:22

    PAGENow, of course, as a governor, you were able to grant clemency request. What did you think about that? How important did you think that power was for yourself as governor?

  • 10:32:31

    JR.Well, I'm fascinated by the conversation here, just comparing my process and the process at the state level, generally, to the president's process. I took it seriously. Margaret knows me very well, knows my record, but I had campaigned, believe it or not, on the promise of restoring this extraordinary power. Although there was no great human cry from my constituency, quite frankly, a right-of-center constituency -- nor do we get particular credit from the left -- I just viewed it as a part of my job description and a part of my job description that had not been a priority for past governors of Maryland.

  • 10:33:11

    JR.So I'm an attorney. I'm married to an attorney, guilty of both counts, but I thought it important. I thought it vital. I devoted extraordinary amount of time to it. Now, as governor, I might have had more time to devote as opposed to the president. But I had a very active group within my Office of Legal Counsel, two full-time lawyers basically just doing this. We would meet monthly.

  • 10:33:34

    JR.And, in many cases, by the way, I would instruct them to go back and give me additional information. It's interesting, your last comment about children out of wedlock and all that. I did have one rule with regard to mine, which was if you owed child support, you got no release. I didn't -- we did look into out of wedlock, in wedlock, whatever, but if child support was owed, despite a meritorious claim, I did not provide release.

  • 10:34:00

    PAGEAnd how many pardons and commutations did you grant as governor?

  • 10:34:03

    JR.Many, many hundreds, and Margaret, I think, has the numbers, knows them better than I do. But many, many -- and, by the way, it's a very interesting topic because my press secretary would sit there sweating bullets. The lawyers would be talking, and I've committed lifer cases. We looked at some very, very -- it just wasn't the possession case from 25 years ago or DUI from 12 years ago. It was a lot of pretty serious cases, felonies.

  • 10:34:33

    JR.And I looked to some of the factors that you've discussed: the nature of the offense, the circumstances surrounding the offense, sometimes assistance of counsel raised as an issue, exculpatory facts that may or may not have been relevant at the time, the defendant's conduct within the system, remorse, rehabilitation. So a lot of these subjective factors are pretty common to both, but I had time. It was a priority, and I made sure it's a priority for my staff.

  • 10:35:03

    PAGEAnd, governor, did you grant any pardons that you grew to regret?

  • 10:35:07

    JR.No. Now, it's interesting because I've had conversations with Margaret and others. The Willie Hortonization of this process -- I just obviously quoted a term, but -- has killed this extraordinary power of both right and left. It seems to be not a good predictor of how active you're going to be -- your party identification or your philosophical orientation. It's this fear of doing -- of waking up one day and reading the headline, oh, my God, I let that guy back on the street.

  • 10:35:41

    PAGEAll right. Gov. Ehrlich, thank...

  • 10:35:42

    JR.And because of that, there's been quite a severe chilling effect around the country.

  • 10:35:48

    PAGEGov. Ehrlich, thank you so much for joining us.

  • 10:35:51

    JR.My pleasure.

  • 10:35:51

    PAGEGov. Robert Ehrlich Jr., who was governor of Maryland, for the record, he granted 249 pardons and commutations. Did -- is Gov. Ehrlich's attitude pretty much what most governors have, Margaret?

  • 10:36:05

    LOVENo. I'm afraid to say that it's not. His attitude is really quite unusual, very admirable. I think that most governors and most recent presidents do not regard pardoning as a part of their job, as he said. Although, historically, it was, in the last 30 years, it has really fallen on very hard times.

  • 10:36:27

    PAGEAnd do presidents and governors see this as a big political risk, do you think, Chris, something that has the potential to come back around and really cause them problems?

  • 10:36:37

    BARTOLOMUCCIWell, I can't speak for any particular president. But I think if you look at the practicalities of it, there's a lot more downside than upside. A controversial pardon or a bad pardon, you know, one like the Marc Rich, can do far more damage than 1,000 meritorious, you know, really good pardons. So there's a lot of downside and -- as compared to the potential upside.

  • 10:37:00

    PAGEChris Bartolomucci, he was -- he's an attorney in private practice and former associate counsel to the president. Also with me in the studio this hour, Margaret Colgate Love, a lawyer who -- representing applicants for pardons and commutations. She was a U.S. pardon attorney from 1990 to 1997. And Dafna Linzer, senior reporter at ProPublica, which is a nonprofit Web-based news organization.

  • 10:37:23

    PAGEWe're going to take a short break. When we come back, we'll go straight to the phones. We have some people who are hanging on. Thank you for your patience. We'll be talking more about the presidential pardon process, and we'll talk about the role that congressional endorsements can play for applicants seeking clemency. Stay with us.

  • 10:40:04

    LOVEWe're going to go to the phones and let our listeners join our conversation about presidential pardons and some of the really remarkable disclosures in a ProPublica study, pardons over the last decade. Let's go to Jennifer. She's calling us from Hocking County, Ohio. Jennifer, thanks for holding on.

  • 10:40:22

    JENNIFERHi. I'm a Shawnee. Leonard Peltier is a look out of the zoo. He was falsely accused, when they raided that area, of killing two FBI agents. And he's in Leavenworth. He's in for life. He has not seen his children grow up, his grandchildren. And Clinton was going to pardon him before he went out of office, and 800 FBI agents were on the White House lawn and said you better not. He would have been a dead man. I wish he could be exonerated because everything was a lie.

  • 10:41:06

    JENNIFERI would recommend the book "In the Spirit of Crazy Horse" by Peter Matthiessen. He's really renowned. He was threatened. Even in the back cover, it says how he was threatened by the FBI. See, so it's not just blacks. It have been -- it's been Indians.

  • 10:41:26

    PAGEAll right, Jennifer. Thanks so much for your call. This, of course, a very famous or infamous case. I know, Margaret, that you worked on this when you were in the Pardon Attorney's Office. Tell us a little about it and comment, please, on Jennifer's comment.

  • 10:41:39

    LOVESure. The Peltier case is a -- it's regarded by many people as an outrage. And there is a lot of history of government misconduct in the case. He was convicted in the 1970s of murdering two FBI agents. We did a very, very thorough study. The attorney general under President Clinton, Janet Reno, was very interested in the case. And we did a extremely thorough -- we even built a little model of the rez where we could sort of see what happened. So we did a thorough, thorough review.

  • 10:42:14

    LOVEAnd we made a recommendation to the White House that laid out all the facts of the case and said, look, if you want to do this, here are the considerations. And so we were, in a sense, sort of neutral on that case. I think that President Clinton could have done it. But it's perfectly true that the FBI has a kind of a relentless feeling that this should never be done. And they made a great deal of it.

  • 10:42:47

    PAGEWhich you can understand in a case where FBI agents were killed. Chris.

  • 10:42:52

    BARTOLOMUCCIThe caller makes -- raises an important issue that applicants fare much better in this process if they admit their guilt and say they're remorseful. It's very difficult for the process to deal with the claim that -- of innocence after the case has gone to a jury and the jury has found you guilty and the appeals court has upheld the conviction. It becomes very difficult for the pardon process to say, on the cold record, well, looks like maybe you were innocent after all.

  • 10:43:17

    BARTOLOMUCCISo a lot of people have a misconception that the process really is responsive to claims of innocence. In fact, it's the opposite. It's much better for people who admit they're guilty and just want to be forgiven.

  • 10:43:30

    PAGEMargaret, did you want to weigh in?

  • 10:43:32

    LOVEWell, I was going to say that that's perfectly true what Chris says. But the fact is that these days, in the criminal process, there are many people who do plead guilty who may not have been as culpable as the government says they are. And I think that's a real problem in the pardon process. It has become, as Dafna pointed out, very much a reflection of the prosecutor's agenda. And that was not true in the past. I think the past 30 years, however, the whole pardon process has come to be very much the government in the sense of the prosecutor's side of the story.

  • 10:44:15

    PAGEYou know, we -- in the case of Leonard Peltier, there was a big public campaign petition signed. There are lots of case you found, Dafna, where members of Congress speak out, write a letter on behalf of a constituent or, in some cases, a political contributor. How much help can that be?

  • 10:44:33

    LINZEROh, it's significant, almost as significant as race. You are three times more likely to get a pardon if you have a member of Congress in your corner. Now, that member of Congress -- it doesn't mean that you have to donate money to that member of Congress, and it doesn't necessarily mean that the member of Congress has to, you know, push every button in town for you. They could just simply do something like, you know, just forward the letter, as you say, as a routine constituent service.

  • 10:44:59

    LINZERBut, you know, there are members of Congress who are not interested in doing that. And so, if you are an applicant whose representative doesn't want to write a letter on your behalf, you have a far worse chance of getting a pardon than somebody in the district over who has a representative who doesn't mind.

  • 10:45:13

    PAGEWhen you looked at the cases in which Congress -- members of Congress had urged that a pardon be granted, did they tend to be just regular constituents? Or did they tend to be people with whom the member of Congress had a financial or political connection?

  • 10:45:29

    LINZERWe saw a lot that. In fact, there are some instances even that we didn't write about in today's story but are writing in subsequent stories, you know, where it's not just a friend, a constituent and a donor, but also somebody who has business before a member of Congress' committee. That happens just as often. So, you know, that's a big deal. What we showed in today's story were examples where a member of congress can really -- can have significant impact in the case, where a case could change based on that kind of support.

  • 10:46:02

    PAGESo, Chris, from your perspective inside the White House, were you aware when a member of Congress had written a letter saying, I know this person, this is a worthy case?

  • 10:46:11

    BARTOLOMUCCIYou would find out about that from time to time. I recall there being very few congressional contacts. It wasn't a significant variable. Often, it was very innocuous. This is a constituent. I'm forwarding their application. And it didn't come with a big push. But if a member of Congress, you know, personally knows a particular applicant and can vouch for their character or recent good deeds, that's an important factor which should be considered.

  • 10:46:37

    LINZERI would just add two things to what Chris said, which is I was struck, again, having written -- you know, read so many of these internal documents, how often the White House was unaware when a member of Congress was advocating directly to the pardon's office on behalf of a constituent or a donor where it just wasn't mentioned at all to the White House in a recommendation letter. The other thing that struck me was how many members of Congress have really close personal friends who are convicted felons.

  • 10:47:07

    PAGEMargaret.

  • 10:47:08

    LOVENo. I just wanted to add that that sort's of surprising to me that it would not be mentioned in a letter of advice to the White House because the one thing that, as pardon attorney, I was very aware of is the need to tell the White House everything they need to know about a case. And so it does surprise me if there was strong support from a member of Congress. And let me just say as to that it was my experience, as pardon attorney, that the sort of routine constituent letter forwarding a constituent's application or saying, you know, where is it in the process, that really didn't have a lot of weight for us.

  • 10:47:50

    LOVEIf the congressman was personally acquainted so that there was a kind of an endorsement of his character and his reputation, that did sometimes make a difference to us. Historically, members of Congress have been very active in the pardon process. There's just no question about that. And sometimes, it goes overboard and looks like it's too much. And sometimes it's helpful.

  • 10:48:15

    LINZERYeah. I think that's what we found. I mean, for -- you know, for some members of Congress, there was -- I mean, there was, you know, an example in today's story in The Washington Post and in ProPublica. You can see where, I mean, the advocacy is very, very, very on the line here. I mean, there are members of Congress who are receiving donations, you know, a couple of days before they write a letter to the White House or the pardon office and then receiving money again right after the pardon is issued.

  • 10:48:39

    LINZERAnd this was not -- you know, I think it's important to note that this was not during a period where the congressman in question was running for re-election, so there were no sort of donation flyers at that moment. There was no kind of, you know, campaign in full swing happening here. Campaign -- you know, there's nothing wrong with making campaign donations. It's perfectly legal. You know, it's just fine to do, but, you know, no member of Congress voluntarily disclosed when they were writing on behalf of a donor.

  • 10:49:09

    LINZERAnd, you know, I did wonder, looking at the letters, if --, you know, if they had, you know, if that would at least make them feel kind of, in retrospect, a little bit better about putting that out there to avoid an appearance of a conflict.

  • 10:49:20

    PAGEYou know, I don't think this is surprising, but I think it's shocking. I mean, it's like the way we know things work in Washington. It's what makes Americans so unhappy with the way things work in Washington. And one thing that struck me throughout the two articles in The Washington Post was the lack of transparency on all parts. Even examining -- looking at the race was something that took a year of research on your part.

  • 10:49:47

    PAGEShouldn't the process be -- is it transparent? Is there a reason why the pardon process shouldn't have the same kind of disclosures and transparency that we expect in other parts of government?

  • 10:49:57

    LOVEYou know, at the end of the Truman administration, speaking to the transparency point, there were a number of grants that were very controversial. And so when Eisenhower came in, he told his attorney general, Brownell, that this was going to be a fish-bowl process. Everything was going to be transparent. That didn't last very long. I think there's got to be a kind of a balance in the process. Many states have reporting requirements.

  • 10:50:24

    LOVEVirginia is one that was mentioned in Dafna's article that -- where the governor has to report the reasons for each of his pardoned grants after the fact. That can be really helpful because you can see what a governor's policy is, and there's a lot of good news about the system that can be told in that way. So I think that, yes, it is far too opaque right now, and it allows a great deal of arbitrariness in the process. I wouldn't go too far over in the other direction because that can really hamper the president or a governor in exercising his power.

  • 10:51:03

    PAGELet's go to James. He's calling us from Lebanon, Ky. James, you're on "The Diane Rehm Show."

  • 10:51:08

    JAMESHi. Thanks for having me.

  • 10:51:10

    PAGEYes. Please go ahead.

  • 10:51:12

    JAMESYeah. I just wanted to call and talk about the presidential pardon over Thanksgiving of Les Berry of Loretto, Ky. He was the member of the so-called Cornbread Mafia, the largest domestic marijuana syndicate in American history between '85 and 1989. Seventy Kentuckians were arrested on 30 farms in 10 states with 200 tons of marijuana. Berry was a worker on one of these farms in Minnesota, served three years and was pardoned by Obama over Thanksgiving.

  • 10:51:42

    PAGESo did -- in this case, you think the pardon process worked?

  • 10:51:45

    JAMESYou know, one, you know, one supposes so. You know, as your guest has talked about, the pardon application process is fairly opaque for people on the outside. Mr. Barry is not talking to reporters so one cannot see his pardon application, although it sort of came a surprise to everyone, including his attorney. No one really thought he had much of a chance.

  • 10:52:06

    PAGESo why do think he prevailed when even his attorney didn't think he have much of a chance?

  • 10:52:10

    JAMESWell, I think the circumstances of his case are fairly remarkable. There were 15 or 20 workers on this farm when the police showed up, and they all went scrambling at the back end of it. And even during that sort of chaos with the police officers and these sort of running criminals into the Minnesota snow storm, none of them acted violently towards anyone they encountered. They surrendered themselves peacefully. They replied yes, sir, and no, sir, to the police officers.

  • 10:52:42

    JAMESAlthough they didn't answer any questions, they were very polite and -- but uncooperative, and that sort of, I guess, you know, did him some favors. I don't know who his letters of reference were on his pardon application, but I can guarantee it wasn't the congressman.

  • 10:53:01

    PAGEAll right. Thanks very much for your call, James. I'm Susan Page, and you're listening to "The Diane Rehm Show." Dafna.

  • 10:53:07

    LINZERYeah. I think the caller reminds me of a couple things, and I want to bounce on something Margaret said to. One is the caller kind of reminds that every story has its own narrative and its own kind of set. You know, you can tell the story in a bunch of different ways, which, I think, definitely happens in the pardon process. The other thing is that, you know, because this is such an opaque process, my sense, you know, going into the story is that, you know, people are inherently suspicious of pardons because it is so opaque.

  • 10:53:34

    LINZERAnd, you know, that kind of leads them always to these conclusions that every pardon is suspect because they know so little about it. I think it is a really tricky line to walk. I think, you know, this is -- you know, we're having a discussion about the president's only constitutionally unfettered power. He answers to no one. He can pardon anyone he wants, you know, so, you know, what you can expect the president to say or describe or, you know, explain is very little.

  • 10:54:03

    LINZERAnd I don't think that any president wants to, you know, be in a position where they have to explain a way, a decision, you know, in this power. So that can be tricky.

  • 10:54:12

    PAGEYou know we have had several emailers who want to know if you factored in the quality of legal representation and that maybe it's a matter of the money to hire the right lawyer as opposed to race. Did you factor that in, Dafna?

  • 10:54:24

    LINZERWell, sitting next to two lawyers, I will tell you I did not factor in the quality of the lawyer. The majority of the people who were pardoned during the Bush administration -- he pardoned 189 people -- I think, more than two thirds of the applicants applied without legal representation. They applied on their own. I'm sure that an excellent lawyer can help you, but I can tell you also that some of the best lawyers in Washington handled top, top, high profile clients and do not succeed. So I think, you know, you can go either way.

  • 10:54:56

    PAGEPresident Obama has granted only 17 pardons and no commutations, a really low number three years out. Margaret, why do think it's so low?

  • 10:55:03

    LOVEWell, let me first say before I speculate on that is the fact that there are so few grants generates a degree of suspicion. And I believe that it is really dangerous in a funny, sort of a backhanded way to do so few because if you do so few, then the spotlight is on everyone. The caller mentioned the case that Obama pardoned before Thanksgiving. I dare say there are dozens and dozens of people who are almost identical to that person, so there's a degree of randomness in the process.

  • 10:55:42

    LOVEAnd when you do so few, it does appear that the system is quite like a lottery. Why has he done so few? I really don't know. And I think it is, A, a shame because there are so many people who need them, but, B, I think it is dangerous for the president.

  • 10:56:02

    PAGEAnd, you know, just very briefly, we've had several emailers saying there shouldn't be any pardons. Here's one from Bill in Newport News, Va. He says, "If a person is found guilty of a crime, they should not only pay the penalty but suffer the long-term consequences as well." Margaret, what do you think about that?

  • 10:56:16

    LOVEWell, long term -- I mean, what does he mean, for life? And that's what it is. With all of the collateral consequences of conviction and the stigma, people don't want to hire somebody with a criminal record. They don't want to even have them volunteering in their children's school. I don't think -- I think you should pay the penalty for the crime, the court-imposed penalty. But once you've served your sentence, there ought to be a possibility -- we are a land of second chance as President Bush said, and we do have a sort of a general theory that people ought to be able to pay their debt to society.

  • 10:56:52

    PAGEMargaret Love, Dafna Linzer and Chris Bartolomucci, thank you so much for joining us this hour on "The Diane Rehm Show."

  • 10:56:59

    BARTOLOMUCCIThank you.

  • 10:57:00

    LINZERThank you.

  • 10:57:00

    LOVEThanks.

  • 10:57:01

    PAGEI'm Susan Page of USA Today, sitting in for Diane Rehm. Thanks for listening.

  • 10:57:05

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Monique Nazareth, Nikki Jecks, Susan Nabors and Lisa Dunn, and the engineer is Tobey Schreiner. A. C. Valdez answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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