Beg Your Pardon

Deborah Leff is resigning in frustration. To which you say who? She held a position in the Department of Justice, to which you say, “so?”  She took her current position on November 2, 2014, though she held it as an interim position since April 30, 2014. “Enough,” you say. “Who cares?”

You should, because Leff is the Pardon Attorney.

The Office of the Pardon Attorney assists the President in the exercise of executive clemency. 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.

There is no requirement that there be a Pardon Attorney. The power to pardon belongs to the President of the United States, and is unreviewable. If the president says pardon, then pardon it is. But the president doesn’t say pardon unless and until the Pardon Attorney does her voodoo, because that’s the choice the president has made.  And the other choice is to be spectacularly frugal in using the pardon power.

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Leff appears to have been a remarkably good choice to hold the position of Pardon Attorney.

A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates.

Having someone qualified and respected in the position was particularly important at a time when President Obama was trying to dig his way out of his hole as one of the worst presidential failures when it came to the exercise of pardons and commutations, and promoting himself as criminal justice reformer.

“The president is deeply committed to the clemency initiative and continues to believe that clemency is an important way to spotlight, and remedy, some of the many injustices in our criminal justice system,” [White House spokeswoman Brandi] Hoffine said.

If “deeply committed” means he barely does it and left Leff holding the bag with inadequate staff and resources to even create the pretense of doing her job, then sure.

“She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.

On the other hand, the government claims to be doing a great job of it.

A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions.

Interesting how “highest priority” and “limited budget” are in the same sentence. Only someone on the government payroll can say that with a straight face.

But the problem goes deeper than lacking the ability to get through the backup of 9000 petitions.  Even when the Pardon Attorney had a recommendation for pardon or commutation, it then went through “channels.”

The Office of the Pardon Attorney oversees all pardons and sentence commutations and makes recommendations for ultimate approval of the president. Leff’s recommendations first went to Deputy Attorney General Sally Quillian Yates, who then decided which petitions to recommend to [White House Counsel Neil] Eggleston.

So if Leff makes the determination that someone deserves a pardon or commutation, it then needs to meet the approval of Yates. While Yates can nix Leff’s choice, she doesn’t add names to the list. Same goes for Eggleston. And the list dwindles down to, well, almost nothing.

Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eg­gleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year.

Note the word “commuted,” because if one was to include the full use of the pardon power, this would be laughable nonsense.

Does any of this matter? P.S. Ruckman at Pardon Power thinks so.

Underlying many discussions / speculations in the days to the come will be the implicit assumption that it matters who the U.S. Pardon Attorney is. While that assumption is one that deserves empirical testing (as opposed to mere repetition) we wish to assert that we agree that it does matter who the U.S. Pardon Attorney is … or, at least it can matter, and a very great deal. Not in terms of ultimate exercise of the pardon power, of course. We all understand that the power belongs, ultimately, to one person, Barack Obama.

But that does not eliminate the possibility that the U.S. Pardon Attorney can 1) be an honest, reliable advocate for applicants 2) can manage the Office of the Pardon Attorney in such a manner that applications are considered seriously, fairly and in a timely fashion and 3) can make recommendations in accordance with the notions and demands of justice to the Deputy Attorney General and the President.

While Ruckman is certainly right in the belief that an “honest, reliable advocate” as Pardon Attorney is important, that alone won’t change the fact that President Obama has shown no inclination to make good use of unfettered authority. No, when it comes to pardons, he falls short of audacious. More to the point, he can give as many speeches as he wants as to his deep commitment to justice, but the numbers don’t lie.

And now, a “friend” of the president for 20 years has quit the job in frustration. With less than a year to go on his term of office, Deborah Leff has had enough of the bullshit of being a figurehead in an office that has been a budget orphan, barely accomplished anything, and turned into a bureaucratic wasteland.

Ironically, Ta-Nehisi Coates called out Senator Bernie Sanders (D-Portlandia) for not being black enough to take up his cause for reparations for slavery and historic discrimination. Perhaps he might have done better to consider that President Obama is plenty black, but that black men in prison won’t be able to enjoy reparations. As Leff’s resignation in frustration shows, talk is cheap.

“The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”

That’s almost as good as actually doing something. Which would actually mean more than demands for reparations, that will never happen, to real people who languish in prison under absurdly draconian sentences. Bureaucrats and pundits may give speeches about their deep commitment to reform, but the bodies will still be in cells when they throw themselves going away parties or accept their awards.

5 comments on “Beg Your Pardon

  1. Richard G. Kopf

    SHG,

    Your readers should take a hard look at the graph reproduced in your post concentrating on the second term of President Clinton. If they do, and then do any research at all, they are likely to conclude that the pardons process was irreparably injured when Clinton used that process for political ends as he prepared to leave office to make millions on the speaking circuit. Former AG Holder under Obama was complicit in some of Clinton’s irresponsible use of the pardon power as well.

    After Clinton left office, no President is likely to take the political risks that are inherent in a vigorous exercise of the power. Clinton stained the process, and no amount of bitching will invigorate it, at least in the near term.

    There are a number of good ideas for structural reforms. The political risks are, sadly, too high for those reforms to be implemented. That’s why the pardon attorney continues to languish in the backwaters of DOJ, ignored by those who could make a difference.

    By the way, if one wants to google Hamedah Hasan and Kopf you will see why I am so sour. Neither Bush nor Obama had the political will to do what was right. I am convinced that this lack of political will is the product of Bill Clinton’s questionable behavior during his second term in office.

    All the best.

    RGK

    1. SHG Post author

      So you found Marc Rich’s pardon outrageous too? And yet, the answer to bad optics is no optics at all. But a second term president doesn’t have to run for office, and (like Clinton) can get away with whatever he wants when it comes to the pardon power.

      At what point should we expect a president to do something? Or will we be stuck in Willie Hortonville forever?

  2. Richard G. Kopf

    SHG,

    At what point should we expect a president to do something?

    Never, says the legal realist in me. And there are at least two reasons for that: (1) Clinton’s bad behavior is infused in the minds of the political insiders even now and will be for the foreseeable future, and (2) the polarization of our body politic, which I believe has now become permanent, makes it highly unlikely that any President will spend the slightest bit of political capital to address the needed structural reforms.

    In other words, we’re fucked. All the best.

    RGK

    1. SHG Post author

      Not that anybody really thinks the system needs a real safety valve, because its works so well and if there’s a ever a mistake or someone gets unduly burned, well, stercus accidit. As long as it’s not me or mine, I’ll get over it.

  3. losingtrader

    There’s zero political capital burned in the last few days in office. Do you think Clinton cared what would happen to future Presidents?

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