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White House Lawyers Try to Keep Reasons for Clinton Pardons Quiet

By George Lardner Jr.

President Bush’s lawyers are trying to keep the inside stories of Bill Clinton’s last-minute pardons secret with a claim of executive privilege that extends far beyond the White House.

In pleadings filed in U.S. District Court here this month, including affidavits from White House Counsel Alberto Gonzales and Deputy Attorney General Larry Thompson, the Bush administration is contending that the privilege covers not only advice given to a president about individual pardons, but also government papers he has never seen and officials he has never talked to, such as the sentencing judge in a particular case.

In the past, executive privilege has been recognized for advisers who operate within the White House. Now Bush’s lawyers, in opposing a lawsuit filed by Judicial Watch that seeks access to Clinton pardon records, are saying it covers officials anywhere in the government who are asked for input about pardon requests.

The pardon authority is “a core Presidential power exclusively entrusted to, and exercised by, the President himself, and the documents generated in the process of developing and providing advice to him are squarely subject to the privilege,” Assistant Attorney General Robert D. McCallum Jr. said in an Aug. 12 memo seeking summary dismissal of the Judicial Watch case.

A public interest law firm that has challenged Republican and Democratic administrations, Judicial Watch sued the Justice Department under the Freedom of Information Act (FOIA) last year for records concerning pardons granted or “considered” by Clinton in January 2000. The 177 pardons and commutations he approved his last day in office kicked up a storm, especially over the clemency he bestowed on fugitive financier Marc Rich, a man prominently listed on the government’s international “lookout” list, and his business partner, Pincus Green.

“It’s a bad faith argument,” Judicial Watch President Tom Fitton said of the government’s position. “The courts have already said that executive privilege does not exist outside the White House. The Bush administration is now covering up for Bill Clinton, Marc Rich and Pinky Green.”

White House spokesman Scott McClellan said: “The president has always been entitled to receive confidential advice and candid assessments from attorneys in the federal government. ... To release such documents would have a chilling effect on the deliberative process.”

In the past, even pardon recommendations sent directly to the president from the Justice Department have been routinely made public by government archivists after the passage of some years. But in response to other recent requests for historical files, separate from the Judicial Watch suit, the Bush Justice Department is asserting the same privilege to maintain the secrecy of pardon records as much as 75 years old. One set being withheld on instructions from the Bush White House deals with the clemency granted Marcus Garvey, leader of the back-to-Africa movement, who was released from prison in 1927 after his conviction for stock fraud.

Bush has yet to invoke executive privilege in the Judicial Watch case, a Justice Department spokeswoman confirmed. In the past, the courts have said he must do this personally, but the government’s pleadings do not indicate whether he intends to do so.