White House Defends Its Shielding of Clinton’s Pardon Papers

The Bush administration defended its decision Tuesday to keep secret thousands of pages of government records involving the pardons President Clinton granted on his last day in office.

“The president is entitled to receive confidential advice and candid assessments from government attorneys,” said White House spokesman Scott McClellan.

In court briefs filed two weeks ago, administration lawyers asked a federal judge to throw out a Freedom of Information Act request for more than 5,000 pages of Justice Department files that concerned Clinton’s pardons.

Although the president alone has the power to issue pardons, he usually seeks advice and recommendations from prosecutors and prison officials. The deputy attorney general and the Office of Pardons in the Justice Department coordinate this effort and submit their recommendations to the White House.

Clinton handed down 177 pardons or commutations as he was leaving office, including highly controversial decisions to spare fugitive financier Marc Rich and to free several convicted drug dealers.

But a president cannot be sued for his “official acts” and is not subject to the Freedom of Information Act.

Judicial Watch, a self-styled watchdog group, instead filed a FOIA suit against the Justice Department in February 2001 seeking all its memos and files that dealt with Clinton’s pardons.

Administration lawyers told U.S. District Judge Gladys Kessler that they had released 1,030 pages of records, most of which dealt generally with the pardon process. But they had decided to withhold 4,341 pages of advice and recommendations involving specific cases.

They urged the judge to reject the lawsuit over the remaining files, arguing that confidential advice to the president is protected from disclosure. They pointed to Section 5 of the Freedom of Information Act, which says that “inter-agency or intra-agency memorandums and letters” involving policymaking can be withheld by the government. Moreover, the memos at issue in this case gave advice to the president, they said.

“Those records that the plaintiff seeks were authored or solicited and received by Department officials in the course of preparing and providing information and recommendations to assist the President in the exercise of his constitutional pardon power [and] fall within the presidential communications privilege and are therefore protected from disclosure under FOIA Exemption 5,” the department lawyers wrote in their brief.

Though the Bush White House has strongly asserted executive powers and a president’s right to operate in secret, officials described the dispute over the pardon requests as routine.

This is “a standard, straightforward case dealing with the Freedom of Information Act. It is not about executive privilege,” said presidential Press Secretary Ari Fleischer.

Tom Fitton, president of Judicial Watch, reacted angrily to the White House response. “They are being disingenuous. They are keeping secret a boatload of documents that are normally available under FOIA,” he said. “There is generally a deal here between the political parties where they protect each other. It’s arrogant and lawless.”

Fitton conceded that “FOIA has lots of loopholes” and the government can withhold a large amount of information.

Kessler has yet to rule in the case.

After Clinton left office, a prosecutor in New York and a House committee in Washington looked into possible corruption dealings involving the pardons, but no charges have been brought.