Some reactions to Exiled American:
-You makes you choice. You pays you price.
-Stay there and rot forever, germ.
-What this schmuck wants is a free pass.
-I am a Vietnam Veteran as well. This was 30 years ago. Give the guy a break. He poured some paint on some papers. Big deal.
-Obviously Bransome failed to include a sizable check with his letter to Clinton.
-Yeah, sure. Forgive him and let him come home. Looks like the democRATs would have their draft-dodging presidential candidate for 2004. American sheeple seem to like traitors as presidents. They give them TWO terms! (sigh)
And so on. More (much) of the same could be read March 14, 2001 on a conservative news forum that like a few thousand other news sources and websites, from mainstream media to porno sites, on radio shows, classified ad forums, civics class websites, had reprinted or commented on AP's article, a couple months too late to matter (to me). AP’s writer had his eye on post-inaugural publication, having pegged my story as being about one who Clinton didn’t pardon, an article that in subtle but crucial and characteristic ways sculpted the issues it appeared to be reporting. But, by this time, the Decider and his neo-con handlers were in and smiling, Clinton out and hurting.
On the vicissitudes of digging up 50,000 clams
The litany of jabs on the site quoted above was longer and nastier than shown. Some were insightful, all things considered. Six months before, going into what we hoped might be the home stretch for a pardon, after 35 years, we were handed a short-cut, via Little Rock, to the Oval Office: my application for presidential pardon would be presented directly to Bill Himself. We were told there were no guarantees, but it was a pretty sure thing. The President was a busy man, altering his schedule, getting “access”, was going to cost 50 thousand greenbacks. We were incredulous, and out of luck: maybe, if like Marc Rich we'd had piles of cash lying around, we might have considered it, but the idea of money opening the door seemed so unlikely, that we were convinced the offer was a scam.
Little did we know that we were wrong – and right: Pardongate was still a few months off... But this may well have been the ticket, since what the Framers were on about, granting all that royal juice to the top goose, was exactly this: anyone with access (that was the magic word we kept hearing - "access"), no matter how it was gotten, might grip the head or the heart (or the whatever) of the Main Man, regardless of what the Dept of Justice may or may not have said. But: I'm getting ahead of myself...
PARDONGATE: the Constitution and its scholars
The funny thing is, ever since Clinton's handiwork the 20th of January, 2001, finally exploded, journalists (not famous for concise precision) have uniformly ducked one main point of this whole business, though had they consulted their pocket Constitutions they'd have understood. The exact wording is in Article II Section 2, which says the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
In February of 2001, as Pardongate was playing to full houses, the House Subcommittee on the Constitution took testimony from Professor of Law Daniel Kobil from Capital University Law School in Columbus, Ohio, where he’d been teaching constitutional law for many years, and whose main research dealt with presidential clemency. Kobil had been asked to recount the history of the President's "pardoning power", and the reasoning of the Framers of the Constitution regarding checks and balances.
In his testimony, Kobil said "Although it is common to refer to any executive act that ameliorates punishment as an exercise of the “pardoning power,” I believe that the term “clemency” more accurately describes the plenary constitutional authority of the President ... under Article II to diminish punishment."
Kobil uses the term "plenary" (meaning “absolute”) to describe the President's power, yet he points out that it isn’t absolute at all, the key limitation being “in cases of impeachment”.
Kobil mentions that among the issues in the debates regarding pardons in 1787, a large one regarded treason: some said pardons for treason should not be allowed unless ratified by the Senate, others that the President shouldn’t be able to issue a pardon at all in case of treason.
Both ideas were rejected. The side that won (8 to 1 in the final vote) held that the Congress already had too much power, and as Kobil said "if the President had been required to share the clemency power with the Congress, the efficacy of clemency as an essential counterbalance on the law-making and law-interpreting branches, would be diminished." The side that gave in, that held that treason including high treason should be an exception, warned that the President himself might be guilty of the very treason he might pardon in others. To this the side that won said Big deal! since "If he be himself a party to the guilt he can be impeached and prosecuted."
This crucial idea has by the way been long forgotten: the Framers expected that a President who issued a pardon to others for a treason to which he (or she) was a party would thereafter be impeached by Congress. Yet when was a President who might have been involved in crimes for which he pardoned others later impeached? Past candidates who come to mind are Gerald Ford (who pardoned Nixon) and the elder Bush (who pardoned his Secretary of Defense and a host of other co-conspirators).
The Framers never got a lot of mileage out of their corollary to the pardon power: that a President who pardons bad guys with whom he or she has also been bad had better look out, since Congress will catch up with him or her later on, via impeachment. So Congress’ power of impeachment is to be used not only to remove someone in power, it can be exhumed after the endgame of particularly seamy pardoners, wrecking their pension plans, lecture careers and so on.
Bottom line: the Constitution guarantees the President the power to issue a pardon, or clemency, a commutation, amnesty, etc for any reason, to anyone, regardless of formalities, whether they are in custody, or fugitive, whether they spent jail time, escaped, never spent a day, and so on, and obviously regardless of whether or not they have ever filed an application, except in cases of impeachment, and the President need never explain the reason. A pardon may be issued because a President likes someone, or because he or she wants to make sure this someone keeps quiet about something, or because he or she (or someone else) has gotten some money, or because he or she digs the person's politics, religion, facial features, derriere, sexual proclivities, favorite sultan, favorite baseball team - whatever. That's why Kobil uses the term "plenary" – it (almost) is.
Consulting Article II Section 2 in my own pocket Constitution, I still wonder how Nixon, who resigned after a showdown with three Republican Congressional heavies who made it clear he was going to lose the impeachment vote, who in other words was days from impeachment, could still get a pardon. How come Congress didn’t go ahead and impeach him anyway, once he’d resigned? Nobody that sat in that Congress can claim that due process was served by not following through – according to the guys who crafted the Constitution, he should have been impeached on schedule, a few days after resignation, regardless of his employment status. Ford said he wanted to patch things up for the nation. Not knowing enough about Constitutional law, I haven’t discovered whether Ford’s pardon was issued or timed in such a way that impeachment proceedings against Nixon were effectively and permanently derailed.
Short-circuiting the Constitution
Back in 1787, they didn’t have blogs, online access to the Dept of Justice’s website etc - town criers were hi-tech back then. Explaining how the present technical process supposedly required to get a Presidential pardon came to be, after the Constitutional Congress's easy take on an executive with nearly absolute "pardoning power", is not easy. If you look around you may find a link to the Office of the Pardon Attorney, where you may read about the conditions said to be required, together with documents also said to be required, in order to initiate the pardon process. There are links to download a formal application form, rules for filing it, descriptions of supporting documentation including letters of recommendation. Nowhere does it say that this process is not required by the Constitution, nor does it say how to go about it otherwise, like where to get 50 extra thousand bucks when needed, just to get “access”, not to speak of whose hand to put the 50 thousand into.
While it is probably rare for a President to know, before taking office, about most of these details, in fact it turns out that each President is met by a wide range of done-deals, for instance with regard to Presidential clemency. Read Article II Section 2 again, and - recalling Kobil's testimony regarding the background to this nearly absolute (one might say royal) power - see if you think the Justice Department's information on the site noted above has anything to do with the plans of those who wrote the Constitution.
On the one hand is a very real Justice Department, which has set itself up as a hurdle of nearly insurmountable proportions, and on the other is the skin and bones of the Constitution, a spartan document, which states in plain terms that with regard to pardons, the President is the Decider. For anyone interested in being pardoned by the President, it would make better sense to skip the Dept of Justice and simply turn to the President directly and ask if he or she could please do that.
Getting the President on the phone!
Forget it. Upon contacting the White House, you will not be connected to the President, nor the President's assistant, secretary, or anyone else. You might be referred to the Office of the Pardon Attorney at the Department of Justice. The bottom line is that for about a century, every President has been effectively denied a great deal of the power granted by the Constitution, since in fact a President need not listen to anyone's advice, including that of (as the site says) "The Pardon Attorney [who] prepares the Department's recommendation to the President for final disposition of each application."
All you need is Love
Margaret Colgate Love, Pardon Attorney from 1990 to 1997, appointed originally by Bush the Elder and retained by Bill Clinton, testified in 2001, at the same Congressional hearings as Kobil. Ms. Love also sent me a letter back in 1996, in response to my 1995 application for a pardon, recounted here. According to my reading of Ms Love’s testimony to Congress in 2001, regarding the history of the pardon power, one of her main problems with President Clinton’s last minute pardons, and even his earlier ones, was that he was digressing from the historical sphere of the pardon process as defined by the Dept of Justice.
Power to interpret
Legal hermeneutics shares with other interpretive disciplines the core problem of defining the object of interest: is it the text of the law as understood when written (in 1792 for instance), or is it the law’s meaning as understood when written, or is it these (text, or interpretation) as understood by later readers and interpreters, or is it to discover the legal repercussions intended by a law-making body as it pens a particular text, for instance Article II Section 2 of the Constitution?
Although Ms Love has a respectable stake in the issue, she is not relieved of a basic fault my slanted view discovers, which is that in this field, she was - aside from being a legal scholar and a humanist – at last a bureaucrat, clearly miffed by having been systematically, even programatically, deprived of some of the power earlier holders of her office had established - un-Constitutionally - as her rightful purview. Love was quite simply livid, that most of her recommendations for clemency were ignored by her Deciders (Bush I and Clinton).
In her testimony regarding the steps “required” for a pardon, Ms. Love describes a process rooted in the mid 19th century, and well established by the turn of the 20th: since then, rarely has a President touched clemency without specific advice from the DOJ. She mentions exceptions (Nixon, Bush I, Clinton), but forgets the clemency extended to Civil War deserters, draft resisters, and soldiers of the Confederacy, based on the same royal power to forgive that those Constitutional Framers granted to the President. Thus we have to include Carter, Ford, Truman, Coolidge, Johnson, Lincoln, and Washington. In all of these cases, the President skirted the pardon process as described by today’s Dept of Justice, and certainly nearly none of the amnesty recipients ever applied for anything.
Jimmy Carter keeps his promises
On his first day in office, Jimmy Carter declared an unconditional amnesty for (almost) all Vietnam War resisters including draft offenders and military deserters, thus fulfilling a campaign promise, and while he may have consulted his Attorney General-to-be, he was going to do it no matter what. Historically, the majority of people who have been given some form of executive clemency according to Article II Section 2 of the Constitution never filed an application with the Dept of Justice, even though all were guilty of "offenses against the United States".
A great number of individual pardons have also been issued without any application having been filtered by the Dept of Justice. Ms. Love addresses the matter with regard to Clinton’s exit-pardons: she points out that he had begun to move outside of established protocol. This is true also of other high profile pardons: how about when all those Iran-Contra guys got theirs that Christmas - remember their smiles? Remember what they were smiling about? Remember what they did? [The story has been told in many places, but here's a short but pithy version: in The Humanist 3/1/93, Gerry O'Sullivan wrote "...The pundits have expressed a great deal of outrage over George Bush's blatant disregard for the law. But missing from many post-mortems has been the international dimension of Bush's yuletide amnesty. Weinberger and his confederates did indeed hijack the Constitution and arrogate untold powers to the National Security Council, CIA, Pentagon, and State Department. But how many hundreds (yes, hundreds) of thousands of people died at the hands of mercenaries and proxy forces armed and aided by these now-pardoned thugs?"]
Remember Marc Rich? Remember what he did? Do you figure all these guys had formal applications in place? Apparently a few did, but do you think it mattered? And even when there were formal applications, DOJ recommendations were - often as not - ignored. Yet, as Ms. Love points out, sticking now not to her bureaucratic guns, but - paradoxically - to the letter of the Law: this is as it should be, at least if what we want is for the President to have the power accorded by the Constitution.
Access is the all
So in the end, it still does come down to “access”: that magical key to having one’s application literally viewed by the only person the Constitution granted the power to Decide: a regal power, retained for the chief executive, as part of the guarantee of the system of “checks and balances” that supposedly keeps the ship of state sailing on an even keel.
Today, the DOJ, through the Office of the Pardon Attorney, filters each individual at many steps along the way. Each application which fulfills conditions stipulated by the Dept of Justice (but not by the Constitution), conditions such as not being filed by a person in prison, nor filed by a person who is a fugitive, and so on, results in a recommendation to the President from the Pardon Attorney for or against a pardon.
Recall the outcry when those Iran-Contra guys got theirs, against the advice of important figures in government, including some (among them independent counsel Walsh) in the Dept of Justice. Same goes for Marc Rich.
And where did the whole outcry against Clinton's pardons peter out a few months later, after congressional committees and subcommittees, after hundreds if not thousands of articles, editorials, talk-shows, demonstrations, legal proceedings? Easy - everyone agreed: the President's pardoning power is (almost) plenary/absolute. Period. And the new occupants of the White House realized that one day they might find themselves in the same position as a Cisneros, a Weinberger, a Nixon, soon a Libby*, so - they let it slide.
Presidential pardon, 3rd application?
In 1995 I learned that President Clinton would soon re-establish diplomatic relations with Vietnam. I contacted the Washington Post, hoping to make my case high-profile at the same moment Clinton’s Vietnam move became known. Even getting through to anyone who could make a decision at a paper like the Post was turning into a major hurdle.
I happened to mention this on the phone with my step-father Dr. Sid Siegel in Washington, DC. He recalled the name of a reporter that had worked with him on a project regarding his work at the Environmental Protection Agency. She had worked at the Washington Post, but was no longer there, yet somehow I managed to find her. It was not easy: she was lying in a hospital bed in Maryland, dying of cancer. She asked me to tell her my story, and then offered me private telephone numbers to Thomas Lippman, who besides being a member of the Council on Foreign Relations was at that time reporter (later editor) at the Washington Post.
So I called Lippman, who at first wouldn't even believe my story. He got back to me by phone the same day however - July 11, 1995, after checking the Post archives for May 21, 1969, and the interview took about an hour. My hope to put the case for a pardon in the spotlight couldn't have been more successful: the headline on the front page of the Washington Post on July 12, 1995, reads “Clinton Opens Diplomatic Ties with Vietnam”, above two columns of text: the one on the right describes the president’s decision and speech, and the one on the left describes my exile: “Long after the war that altered America, deep divisions persist” – Michael Bransome's name is not among the 58,196 engraved on The Wall... His name is on an arrest warrant going back to the draft-protest days of the late 1960s...". That's Lippman's editor describing me, a persistent division…
Electrified by this exposure, I followed through with yet another formal application for Presidential clemency. This time I asked an old acquaintance, Ramsey Clark, to help me put the application in correct legal order. Two earlier applications (to Carter and Reagan) had been turned away at the door, the Dept of Justice in its replies holding that there was precedent for ignoring any application of a fugitive.
One of these DOJ replies (during Reagan’s era) went so far as to detail conditions of an acceptable application: surrender myself to U.S. Marshals in NYC, and then throw myself on the mercy of the President, or the federal court system. At that point (this was probably 1980) there were not only 2 years of the original 3 year sentence remaining, there was also an outstanding charge for escape from a federal prison, entailing 5 more years in federal prison. Understandably I passed.
In a letter from my lawyer accompanying the pardon application that we filed in 1995, we held that if the DOJ through the Pardon Attorney (Margaret Colgate Love) again refused to look at the application, the matter would be referred to federal court, based on our claim that Dept of Justice protocol was depriving the President of his Constitutional rights according to Article II Section 2. In other words, since the Constitution accords the President the right to pardon anybody for anything under any circumstances, with the sole exception as pointed out above, by refusing to alert him regarding most applicants the Dept of Justice was depriving the President of his right to be the sole Decider.
Love-letter
Unbelievably, instead of simply denying the application out of hand, Ms. Love followed through - sort of. In 1996, after 9 months of deliberation she sent a reply, in which she pointed out that two circumstances had been discovered, in her view ("apparently” as she put it) obviating the need for any application for clemency. One was that the 5-year charge for escape from a federal prison, brought in the District of Northern West Virginia in 1975, was dropped in 1993, for “administrative reasons”. My lawyer said the charge of escape was dropped “with prejudice”, a technical term that he said means that the charge can be brought again*. The judge’s reasoning was that they couldn’t get hold of me anyway, which legal scholars advise means that if they could, maybe they would. The other circumstance Love noted was that they could discover no outstanding warrant for my arrest anywhere in the United States, and thus were closing my case.
* [Most of this main section was written in 2007-2008, but these bracketed paragraphs are from April 2024. I recently went to the trouble to finally disentangle the phrase that I believed I heard Ramsey use regarding the escape charge: "dropped with prejudice". According to my best lights today this phrase means the exact opposite of what I heard Ramsey say on the phone to me. But a charge that is dropped with prejudice is dropped permanently. The charge cannot be brought again regardless of the circumstances.
The next order of business would be to find out which document Ramsey Clark was referring to when he said these words to me back then. I have recently seen a copy of a letter Clark sent to Margaret Love in which he referred to her note in her letter to him to the effect that she had attached two further documents, showing under which circumstances the charge had been dropped - in his letter he wrote that the documents she referred to were not included in the original letter. This seems to show that the letter-copy (of interchanges between Love and Clark) that Ramsey later sent to me is a different letter from the one in which she reportedly mentioned that there were two documents attached to her letter. I have never seen that document.
There are further complications to disentangling this "dropped with prejudice" matter. I have met Ramsey Clark twice in my life. Ramsey and Senator Edward Kennedy toured the federal prison (Robert F Kennedy Federal Prison in Morgantown, W.Va) where I was imprisoned from 1969 to 1970. I got to shake Ramsey's hand, we exchanged some pleasantry, and I got a handshake from Senator Kennedy. The only other time we met was when we were in the middle of planning my legal defense and attempt to get me back home, as far as I can recall sometime right after the turn of the millennium. He had asked me to meet him at a hotel in Paris, and I complied. There in Paris, he said that he would not work pro bono for me and required a retainer of USD5000. I was still in my training to become a psychiatrist, money was tight. But I/we complied. But I also recall that Ramsey had a couple of relatively subtle speech impediments, and it is entirely possible that he used the phrase "dropped with prejudice" but perhaps explained not that it meant could be brought again (the charge) but that it meant it "could not be brought again" – or, instead: he may have said "dropped without prejudice" and "could be brought again" (though I believe this is less likely). We will maybe never know...
Bottom line: there is very likely no way or at least no simple way to find out what Clark received (and didn't receive, though promised) from Ms Love in the form of letters and other documents.]
Ms. Love’s letter clearly did not dismiss the pardon application out of hand (she attended to the matter for 9 months before replying), though she does end with an explanation that since there were no arrest warrants for me active in USA, my application file was being closed. This signals the only time in several decades of applications for Presidential clemency that the DOJ has demonstrated an awareness of the President’s essentially plenary right to forgive. And in her testimony at Congress’ 2001 Pardongate hearing, Ms. Love (remember: she was appointed by Bush the Elder) uses long forgotten terminology when describing what she holds will be required to renew and modernize the pardon process: “an open mind and an open heart”! Unprecedented in recent times, though in her testimony she also points out that there are too few involved in carrying out the President’s task as Forgiver.
Now I wonder how broad a smile we will see on little Scooter’s face when his debt to society is erased by the Forgiver*. Bets are already being taken on the date - Ms. Love is said to have weighed in with Christmas Eve 2008. Noting historical antecedents, a good time to ease this into the body politic will be about 9PM EST, Friday the 26th of December, 2008: provided not only that the Republicans lose the presidential election (again), but also that they don’t “win” it anyway. (Was that clear enough?)
* This was originally written early in 2007, and "Scooter" of course got his presidential clemency already the 3rd of July that year, when Bush II commuted his sentence from 30 months to zero months, thereby shutting little Scooter's mouth for the interim. The judge that gave him the 30-months was obviously disgusted when he ordered both sides to help him understand what should come of Scooter's 2 year post-imprisonment supervision, now that the imprisonment part was no more. I'd be smiling too...
Copyright © 2008 Michael Bransome
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