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The Department of Justice is strangling the pardons process — again

On November 20, 2012, President Obama acceded to the demands of schoolchildren across the nation by issuing commutations to Cobbler and Gobbler. The two turkeys were then transported to George Washington’s estate at Mont Vernon to live out the balance of their lives in federal custody.

But a dark fact shadows this holiday ritual: as it turns out, Cobbler and Gobbler received the only presidential pardons issued in 2012.  As presidential authority reaches an historic high-water mark, one of the president’s powers is on the verge of atrophying:  that of granting pardons in the interests of justice. 

It would be more accurate, however, to say that this power has been strangled by a Justice Department jealous for its own reputation, particularly in relation to doubtful and overzealous prosecutions. A few weeks ago, a report issued by the DOJ’s Office of the Inspector General concluded that complaints about the pardons office were well founded.  The inspector general stated that pardon attorney Ronald L. Rodgers, a Bush-era appointee, had engaged in “conduct that fell substantially short of the high standards expected of Department of Justice employees and the duty he owed the President of the United States,” and recommended a further review for possible disciplinary action.

The IG’s report focuses on the case of Clarence Aaron, a black athlete who played an indirect role in a minor drug transaction and who became the victim of hyperaggressive prosecution and sentencing. While handling the case, Rodgers misrepresented the views of both the United States attorney who made a pardon recommendation and the judge who seconded it, resulting in the pardon’s being denied. Aaron continues to languish in federal prison.

In the report, the inspector general’s office also flagged manipulations of the pardons process by the DOJ’s senior career staffer, associate deputy attorney general David Margolis. A master political triangulator, Margolis is said by alumni of the pardons office to have intervened routinely to block pardons because he believed they would reflect poorly on the department’s prosecutions record.  Margolis is also the man who stood by and allowed the politicization of the appointments and removal process that led to the U.S. attorneys scandal; who blocked efforts to obtain an internal review of the prosecution of former Alabama governor Don Siegelman (a prosecution that sprang largely from Margolis’s own mistaken judgments); and who reversed recommendations by the DOJ’s professional-responsibility section to discipline the authors of the department’s torture memoranda.

As Dafna Linzer noted in her assessment of the IG’s report, this was the second internal review condemning and recommending disciplinary action for a pardons attorney in five years—the first occurred after Rodgers’s predecessor was removed for making inappropriate comments on the ethnicity of a petitioner born in Nigeria.  Reviews of the U.S. prison population point to a clear disparity in treatment based on racial background;  the pardons power presents a clear opportunity to correct this and similar injustices.  Yet, as ProPublica’s study of pardons reveals, the operations of the pardons office continue to be flecked with suspicions of overt or barely disguised racism—one standard is applied to wealthy, well-connected white men, and an entirely more hostile one is applied to minorities, particularly blacks.

The New York Times, reviewing the latest stench to emanate from the DOJ, says that it’s time the department was removed entirely from the process:

One simple and immediate way for the president to reinvigorate the pardons process is to choose a person of stature and energy — say, a federal judge — to steward his administration’s pardon duties. At the same time, he can end the department’s conflict of interest by replacing the pardons office with a new bipartisan commission under the White House’s aegis, giving it ample resources and real independence.

There are a number of pending alternative proposals that could bring a smidgen of justice to the process.  But the starting point must be to extract the real pardons turkeys, Ronald L. Rodgers and David Margolis, from a process they have effectively stymied for five years.

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