Obama the Merciless: Is DOJ to blame?

The Washington Post has a compelling story about a man's quest for a federal sentence commutation from the Bush and Obama Administrations and the biased interpretations, flawed through omission and understatement, given the President by the Office of the Pardon Attorney at the US Department of Justice. It's a substantial story so those interested should read the whole thing, or here's a brief summary from P.S. Ruckman at Pardon Power.

Grits' immediate interest lies in reported criticisms of the internal workings of the Pardon Attorneys office, including calls to outright abolish it. In the case of Clarence Aaron highlighted in the story:

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests.

Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

But it's not must one individual thwarting more active clemency recommendations, some argue, but an institutional, prosecutorial anti-clemency bias from prosecutors at the Justice Department:

Last week, the American Constitution Society sponsored a panel discussion on Capitol Hill devoted to the pardon issue. President Obama’s former White House counsel Gregory B. Craig said the president could issue an executive order eliminating the pardon office.

“We cannot improve or strengthen the exercise of this power without taking it out of the Department of Justice,” Craig said.

He advocated for a bipartisan review panel that would report directly to the president.

The number of pardons awarded has declined sharply in the past 30 years, as have commutations. Obama has rejected nearly 3,800 commutation requests from prisoners. He has approved one. Bush commuted the sentences of 11 people, turning down nearly 7,500 applicants.

A former pardon office lawyer said some applicants have been turned down “en masse” with little, if any, review, a claim the Justice Department disputes.

Here's an interesting tidbit: "Under Ronald Reagan and Bill Clinton, both two-term presidents, one applicant in 100 was successful. Under Bush, approvals fell to barely better than one in 1,000." Obama's record is even poorer.

Under Barack Obama's US Pardon Attorney Ronald Rodgers, paralegals began vetting cases instead of attorneys, and large batches of cases would allegedly be denied en masse with little review (though of course Rodgers insists the review was adequate):

Under Rodgers’s predecessors, staff lawyers reviewed each case, gathered pre-sentence and Bureau of Prisons progress reports and wrote recommendations based on their research.

“Some reports were shorter, just a paragraph or two,” said Margaret Love, who served as a pardon attorney from 1990 to 1997. “But there was always enough of a report that you could get an idea of what the basic facts and issues were.”

For the first 2¹/₂ years under Rodgers, however, most petitions were handled by paralegals, not staff attorneys, and recommended for denial in batches, said Samuel Morison, a lawyer who spent more than a decade in the pardons office before leaving in 2010 to work for the Defense Department. He said Rodgers instituted the change when there was a significant backlog.

“The office types up a list of names, along with basic sentencing and offense information for each prisoner, and sends the list to the White House with a note that says the attached cases are meritless and should be denied,” Morison said.

The story of Clarence Aaron, who at 24 was "sentenced to three life terms for his role in a cocaine deal, even though it was his first criminal offense and he was not the buyer, seller or supplier of the drugs," is certainly troubling, but it mostly just affects him, his family and loved ones (and of course taxpayers footing the bill for his incarceration). Even more concerning are reported changes in institutional practices by President Obama's pardon attorney giving at best minimal consideration to the thousands of clemency requests they receive, ensuring there will be many more Clarence Aarons, most of whose cases won't be nearly so well publicized..

Mitt Romney's pardon record is even worse - he never once issued clemency to anybody when he was Governor of Massachusetts - so I don't expect this to become a campaign issue. It just doesn't cut along partisan lines. There's a firm bipartisan consensus that the constitutional clemency power has become an anachronism barely worth considering.

Grits finds that ironic. The history of the US presidency throughout the past century involved the accumulation of ever-greater power within the executive branch, much of it through regulatory infrastructure justified by constitutional theories that would leave the Framers' jaws agape. By contrast, clemency authority is an actual, named constitutional power of the presidency, not one assumed after the fact nor assigned by Congress or the judiciary. But this critical presidential power has faded to virtual irrelevance, even though Alexander Hamilton believed (see Federalist 74) "easy access" to clemency was essential to keep the justice system from becoming too "sanguinary and cruel."

Why is this the one area where presidents, especially this president, seem reluctant to exercise their constitutional authority at all, much less seek its expansion as in every other realm of their office? Is DOJ to blame?

MORE: P.S. Ruckman has posted the relevant documents in Clarence Aaron's case.

See prior, related Grits posts:

• Obama may have stingiest pardon record of any American president
• Obama the Merciless
• Eat the turkey, pardon O. Henry! President quotes Texan writer but won't pardon him
• Institutional prosecutorial bias limits federal pardon recommendations from DOJ
• Perry should expand clemency, trump Obama in Christmastime ritual

Prosecutors whiff on Pettite testimony at Roger Clemens perjury trial II

Roger Clemens' second perjury trial demonstrates the dangers of pursuing criminal prosecutions based on the personal political agendas of members of Congress. Much has been made of the fact that pitcher Andy Pettite told Congress he recalled Clemens telling him he'd used HGH, though he said in a past deposition he could have misunderstood the Texan pitching ace. In any event, he had never been cross-examined over the statement. When he was, according to the Washington Post, Pettite:

admitted that he might have misunderstood his close friend admit he took performance-enhancing drugs in 1999 or 2000.

Under cross-examination by defense lawyers, Pettite agreed that there was a “fifty-fifty” chance that he misheard Clemens when he testified earlier that “The Rocket” had confided in him that he had taken the drug Human Growth Hormone.

And with that the feds' case likely went down the drain. What a waste of time and money this witch hunt has been! Now it seems that Clemens will likely walk (and good for him): Pettite's testimony was what held the case together, with the only other witness a discredited, self-interested snitch trying to weasel out of prosecution himself.

Grits remains amazed that Congress and federal prosecutors have focused on baseball players and track stars when the much more problematic use of steroids from a public policy perspective occurs among cops and federal security contractors. Such skewed priorities IMO stem from sheer geek envy of jocks (and likely also undue deference to the security apparatus). Politics has been aptly called "show business for ugly people," and politicians compete with celebrities for the scarce commodity of public attention. Neither members of Congress nor federal prosecutors will ever hurl a fastball like Roger Clemens nor run as fast as Marion Jones, so some insecure pols feel the need to take such public heroes down a notch to elevate their own (oft-sullied) class. Sure, the public policy concerns abut cops and security contractors buying and using steroids from the black market have much more critical implications for the public than whether Roger Clemens juiced at a time when there was no law or Major League Baseball regulation banning it. But investigating those far more serious issues wouldn't get everybody's picture in the paper, at least not as often or predictably as hounding a celebrity from the capitol to the courts on trumped up charges.

For more, see a dedicated blog on the case at the Houston Chronicle.

Feds investigating Shelby DA in alleged Tenaha shakedown cases

According to the Associated Press (Oct. 25), the Shelby County District Attorney responsible for infamous asset forfeiture scandal in Tenaha is now herself facing scrutiny from federal prosecutors. The story opens:

The district attorney in a Texas county with a well-known drug-trafficking route repeatedly allowed suspected drug runners and money launderers to receive light sentences - or escape criminal charges altogether - if they forfeited their cash to prosecutors.

As a result, authorities collected more than $800,000 in less than a year using a practice that essentially let suspects buy their way out of allegations that, if proven, would probably have resulted in prison sentences.

"They were looking out for the treasury of their county instead of doing the job of protecting society," said R. Christopher Goldsmith, a Houston attorney who represented one of the defendants.

The system engineered by Shelby County District Attorney Lynda Kaye Russell is now one focus of a federal criminal investigation that is also reviewing whether Russell and other law enforcement officials targeted black motorists for traffic stops.

Interviews, court records and other documents reviewed by The Associated Press show numerous examples of suspects who went unpunished or got unusually light sentences after turning over tens or hundreds of thousands of dollars.

The money from those and other defendants increased the DA's forfeiture account by more than two hundredfold and helped ease a tight budget. The county's former auditor has testified that at least a portion of it was spent on campaign materials, parades, holiday decorations, food, flowers, gifts and charitable contributions.

In one instance, a man accused of transporting 15 kilos of cocaine and more than $80,000 in cash got probation after forfeiting the money to the district attorney. When the Justice Department learned about the deal, federal officials regarded it as so outlandish that they took the rare step of building their own case.

In another case, a woman caught with more than $620,000 stuffed into Christmas presents walked away after reaching a similar agreement.

Russell, who has been district attorney in the county on the Texas-Louisiana border since 1999, did not respond to repeated requests for comment. She announced in June that she was resigning, effective at the end of the year, to care for her sick mother.

Law enforcement agencies across the country often seize money or property believed linked to criminal activity. If they can prove the link in civil court, authorities can take possession of it permanently. But it's highly unusual to make deals that provide suspects with freedom or leniency if they agree to forfeit their cash.

Not buying story of Iranian links to drug cartels

The news story making waves that the Iranian government allegedly tried to have the Saudi Arabian ambassador assassinated on US soil strikes me as squirrelly and self-interested. Said Secretary of State Hillary Clinton, "The idea that they would attempt to go to a Mexican drug cartel to solicit murder-for-hire to kill the Saudi ambassador? Nobody could make that up, right?" Well, nobody but government officials who rely on a lazy, compliant media to repeat their spin countless times before vetting the facts. (See Bruce Ivins' story, and Steven Hatfill's for classic illustrations, or since these charges could start a war, maybe the Gulf of Tonkin is a better example, or Bush II's claims that Iraq had chemical weapons.)

As it turns out, the suspects did not go to any "Mexican drug cartel" at all, but the case is based on a paid informant from Corpus Christi unaffiliated with any cartel who had state charges dropped in exchange for his services. In reality, the feds could have used an informant pretending to be from the Italian mob, the Crips, Bloods, you name it, since the only link to drug cartels is the cover story they fabricated.

Reported the Texas Tribune, the corporate intelligence service Stratfor says, "It seems unusual that the Iranians would approach a Mexican cartel to carry out the assassination, when the Iranians probably have the capability themselves," and that "at this point the cartels have not been directly linked to the plot."

Why would the Iranian government seek the Saudi ambassador's assassination, and if true, why would they choose to do it on American soil? It makes no sense. I don't yet know what to believe about these allegations, but one thing I know for sure: Only a fool would agree that "Nobody could make that up."

MORE: From Sylvia Longmire and Pete Guither. Amy Davidson at the New Yorker says one thing the story has going for it is an indictment. Read the full complaint here (pdf).

COPS grants violate principles of federalism

The US Justice Department awarded Houston PD a three-year COPS grant for 25 new officers, paying for their salaries and costs for three years before the city will be expected to pick up the tab. The Missouri City PD received funding for four new officers, Huntsville PD got money for two, and the City of Patton Village and Waller County Constable Precinct 2 got one apiece.

Those were the only Texas grants among 238 local departments nationwide that received funding. See the complete list (pdf). By my count, 149 Texas agencies applied for the grants, which gets Texas a 3.4% approval rate. (See the list  (pdf) of applicants.) Nationwide, 11.3% of the 8,999 total positions requested were filled. "The grants provide 100 percent funding for the entry-level salaries and benefits of newly-hired, or rehired, full-time officer positions over a three-year period."

Regular readers know Grits is no fan of the COPS program. It violates principles of federalism for the feds to subsidize local law enforcement costs, plus commits the agencies receiving the grants to living beyond their means, since they'll have to come up with money to pay for the new positions when the three-year grant is up. In addition, the overwhelming majority of departments preparing grant requests are wasting administrative staff time and resources on grant applications that around 97% of them will never receive.

See related Grits posts:

• COPS grants skew local budget decisions: Eliminate them as part of federal deficit reduciton
• Do COPS hiring grants make sense in a lousy economy?
• Another part of Obama's stimulus the Governor should oppose
• Texas shortchanged on COPS grant funding 
• Obama shouldn't waste stimulus money on Byrne grants
• The Wimpy Approach to funding local police: Federal COPS grants

Making a federal case of it: Traditional federal crimes squeezed out by pot, immigration cases

From US Sentencing Commission data (pdf), Grits compiled this table showing how immigration cases have pushed aside other, traditional priorities for federal prosecutors in Texas compared to their counterparts in other states:

FY 2010 Federal Cases by Type, Texas vs. National

	National	Texas
Immigration	34.4%	62.0%
Drugs	28.9%	23.0%
Fraud	9.7%	4.8%
White Collar (Non-Fraud)	3.6%	1.7%
Larceny	2.0%	0.7%
Firearms	9.6%	3.8%
Child Pornography	2.3%	0.8%
Other	9.5%	3.3%

Another big difference between federal cases in Texas vs. the rest of the country is that the majority of Texas drug cases prosecuted by the feds are for marijuana (56.9%) compared to just over a quarter of federal drug cases (26.3%) nationwide. Cocaine, heroin and meth all make up lower proportions of federal drug cases in Texas than nationally.

Growing up, you'd hear the phrase "don't make a federal case out of it" as an admonition not to treat trivial matters as though they're of the utmost seriousness. But with immigration and marijuana cases so dominant in Texas' federal courts while traditional fraud, larceny and white-collar cases are being minimized, maybe that phrase should be retired as an anachronism.

Cornyn "perplexed" by his own actions delaying US Attorney appointments for years

Barack Obama finally caved in and appointed the US Attorney candidates Sen. John Cornyn had insisted upon, ending a nearly three year stretch in which the Lone Star State had no appointed US Attorneys thanks to partisan bickering. Reported Texas Lawyer:

Better late than never: It took President Barack Obama two-and-half years to nominate U.S. attorneys for Texas. Last week, the four lawyers won U.S. Senate confirmation.

Obama nominated the four lawyers in June, and the Senate Judiciary Committee approved the nominations on Sept. 8.

On Sept. 26, the full Senate confirmed Sarah Saldaña as U.S. attorney for the Northern District of Texas; Ken Magidson as U.S. attorney for the Southern District of Texas; Malcolm Bales as U.S. attorney for the Eastern District of Texas; and Robert Pitman as U.S. attorney for the Western District of Texas. All four previously have served as federal prosecutors in the state.

While U.S. attorney posts are some of the most important a president fills, partisan politics played a role in the delay in seating Texas' four most important federal law enforcement positions. Texas' Republican U.S. senators and the Texas House Democratic Congressional Delegation fought over which party should have the White House's ear when suggesting candidates for the posts. In some cases, the Republican senators and the Texas House delegation sent competing names to the president.

In a comment that to Grits seems absurd given how this saga played out, "Cornyn says he and U.S. Sen. Kay Bailey Hutchison, R-Texas, 'were trying to work constructively with the White House, and many members of the Texas House delegation were as perplexed as we were why the White House just did not move forward with a nomination — any nomination. But I am pleased with the result, even though I can't explain why it took so long to get there.'"

Really, sir? You were "perplexed" by the fact that your threats to use senatorial privilege to block candidates you didn't personally select delayed these appointments for years on end? Cornyn created his own "screening committee" to recommend US Attorney candidates - including all four of those eventually named - and has since been engaged in a game of brinkmanship to bully his particular choices through the process. In 2009, reported MAIN Justice, Cornyn announced that ""No applicant will go forward who does not go through the screening committee because I'm not going to return a blue slip on them."

According to the same MAIN Justice article, "President George W. Bush generally ignored blue slips from Democrats, but the Obama White House has been much more solicitous of Republicans in the nominating process." They could have added that the reason Obama has been more solicitous is the expanded use of filibusters in such circumstances by GOP senators.

So if John Cornyn is really "perplexed" over the delay he's either amnesiac or a moron. Since I actually consider Sen. Cornyn a pretty smart guy, I think he's just being two-faced.