‘Tis the season for presidential pardons, and although yesterday’s list of lucky convicts was about as exciting as a lump of coal, the Office of Legal Counsel did its best to liven things up with a stocking stuffer of its own – a memo on the pardon power that’s left some legal experts scratching their heads.
The August 2006 memo, issued during the heated run-up to the trial of former White House aide Scooter Libby, tackles the question of whether a presidential pardon would automatically expunge the official judicial and executive branch records of a crime.
The answer, in short, is no. Tracing case law back to the aftermath of the Civil War, the opinion concludes that “a pardon and expungement are distinct actions.” Pardons can offer forgiveness, it explains, but they don’t exonerate anyone.
There is a caveat. While expungement isn’t automatic, the memo theorizes that the president could ask an executive branch agency to either seal or destroy its record of a case. “We believe that order would have the effect intended, subject to any statutory constraints on executive record keeping,” the memo says.
The document never makes clear exactly what expungement would entail. While it at times uses the phrase “seal or destroy” in place of “expunge,” it admits that the term has meant different things in different states and never settles how it would translate on the federal level.
Nevertheless, the mere suggestion that the president could seal off or shred records of a criminal investigation leaves legal observers flummoxed.
“It’s news to me that you can have a record expunged at the federal level,” says P.S. Ruckman, a political science professor at Illinois’ Rock Valley College who has written extensively on presidential pardon powers. “I’ve never even heard anybody mention that.”
Margaret Love, a former U.S. pardon attorney in the Clinton administration, says she could not recall ever discussing the idea of expunging federal records. She adds that she also found the memo’s use of the words “seal or destroy” perplexing.
“I don’t know of a single jurisdiction in this country, with the possible exception of Connecticut under limited circumstances after a certain period of time, [where] they actually destroy records,” she says.
The memo is addressed to Roger Adams, who served as President George W. Bush’s pardon attorney until resigning in February of this year. It was first requested in June 2005, when the investigation into who had leaked the name of CIA operative Valerie Plame was still ongoing, but before any indictments had been handed down.
Love says she is somewhat skeptical that a pardon attorney would even request the memo.
“Somebody [else] must have asked this question,” she says. “Because it’s not something the pardon attorney would have asked.”
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