Is Pardon Reversal a Sign of a Broken System?

Eight years ago, President Clinton ignited a firestorm with a pardon of financial fugitive Marc Rich. Representatives of Rich, like for Toussie, appealed their case directly to the White House. Prosecutors who had been working on the Rich case were stunned when Clinton granted the pardon without having the pardon attorney involved in a thorough review of the application.

Some accused Clinton of granting the pardon in exchange for a large financial contribution from Rich's ex-wife. Clinton vehemently denied the accusation.

But legal experts said the Toussie case, like the Rich case, provides new evidence that the system is in need of repair.

"The bureaucratic process for a pardon needs improvement," said Brian C. Kalt, a law professor at Michigan State University College of Law.

Kalt argued that one possible fix would be to ease Justice Department guidelines so that every application was eligible to go through the Office of the Pardon Attorney without the five-year waiting period. Such a process would cut out a direct appeal to the president.

"The pardon attorney gives the president political cover," Kalt said

But the Justice Department guidelines are in place in part to limit the already overwhelming number of pardons the office receives each year.

Others said they believe the president should do more to explain his thinking behind the pardon.

"I think people want more information from the president as to his thinking. A 'here's why' instead of just putting out a press release," said Ellen Podgor, a law professor at Stetson University College of Law.

"There will always be a certain unfairness to the pardon process when the president has the sole power to decide who is going to get clemency," Podgor said. But she said she is troubled that individuals who can't afford a lawyer are put at a distinct disadvantage.

"Is it a situation that we are seeing everyone on equal footing having the ability to apply?" she asked.

But Ruckman argued that through history the system had always been biased toward those with more direct access. He said a root problem is that modern presidents have used the pardon so sparingly. If the president chose to allow more pardons, and if more resources were given to the pardon attorney at the Department of Justice, the pressure on the system would be alleviated.

"Access to power has always been limited and biased, but if the number of pardons continues to decline, it will only exacerbate the problem," he said. "As it stands now, the perception is you hardly have a snowball's chance to get the pardon from the pardon attorney at the Department of Justice so you have to think of ways to try to bypass the system."

The pardon attorney does not have the staff or resources to handle all the applications they receive, he said.

"The Toussie case certainly suggests that there are major problems in the process for administering the pardon process," Love said. The White House needs to better coordinate with the Office of the Pardon Attorney on pardons, he said.

"There has been a breakdown between the Department and the White House, and the pardon attorney needs to get the authority, resources and respect it deserves to do its job," Love said.

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