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One barrier to Clinton pardon records removed

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One barrier to Clinton pardon records removed

  • The U.S. Court of Appeals in Washington, D.C., ruled that presidential pardon records the president does not see or ask to see are not protected from disclosure by a “presidential communications privilege.”

May 13, 2004 — Records relating to presidential pardons not “solicited and received” by the president or his office may not be withheld under a “presidential communications” privilege, the U.S. Court of Appeals in Washington, D.C., ruled last week. The government had claimed the privilege under the exemption to the federal Freedom of Information Act that protects privileged information in inter- or intra-agency memorandums.

In February 2001, Judicial Watch, a Washington, D.C.-based government watchdog group, filed FOI Act requests with the Department of Justice for all records relating to pardon applications considered or granted by former President Bill Clinton. When the department notified Judicial Watch that it could not process the requests within the 20 working-day deadline required by the statute, the group filed suit in U.S. District Court in Washington, D.C.

By August 2001, the department had identified 5,258 documents covered by Judicial Watch’s request, but had withheld 4,825. It claimed the inter- or intra-agency exemption for privileged memoranda, citing the privileges for presidential communications and for deliberative process. It also claimed that some records were protected by an exemption when disclosure would cause a clearly unwarranted invasion of personal privacy.

Judicial Watch sought the records to gain insight into why Clinton approved 177 pardons on his last day in office. Clinton’s brother, Roger, had lobbied on behalf of some of the applicants.

The presidential communications privilege is a broad privilege that protects against the release of information received by the president or his office. The deliberative process privilege is narrower, applying to all executive branch offices but only to documents that are pre-decisional and deliberative, and not purely factual in nature.

The presidential communications privilege applies to entire documents, while the deliberative process privilege requires release of redacted documents.

In March 2003, District Court Judge Gladys Kessler ruled that requested records were properly withheld under the presidential communications privilege because the sole duty of the pardon attorney who prepared them is to assist the president in making decisions on how to exercise his constitutional pardon power. Kessler also ruled that other records were properly withheld under the privacy exemption to the FOI Act. She did not rule whether the withheld records were subject to the deliberative process privilege.

Judicial Watch appealed, and on May 7 the Court of Appeals reversed on the issue of the presidential communications privilege. Because the pardon attorney does not directly advise the president, but instead submits recommendations through the deputy attorney general, who decides which applications to forward to the president, the presidential communications privilege does not apply, Judge Judith W. Rogers wrote in the 2 to1 decision.

She said “extension of the privilege to internal Justice Department documents that never make their way to the Office of the President on the basis that the documents were created for the sole purpose of advising the president on a non-delegable duty is unprecedented and unwarranted.” She noted a danger in “expanding too far” a use of the presidential communications privilege.

However, the appeals court upheld the ruling regarding records withheld under the personal privacy exemption, and sent the case back to the district court to determine if the records should be withheld under the deliberative process exemption, “giving due consideration to Judicial Watch’s claim that the balance of interests weighs in favor of releasing the records and to the agency’s obligation . . . to disclose all reasonably segregable, nonexempt portions of the documents.”

(Judicial Watch v. Dept. of Justice) GP

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