A Justice Department attorney encountered a skeptical panel of judges today in trying to convince the court to allow the government to keep secret the list of people whose clemency applications were denied under the presidency of George W. Bush.
A retired Washington Post reporter who is writing a book on clemency is demanding the list under the Freedom of Information Act. Bush rejected more than 9,200 applications over eight years. Last year, a federal district judge in Washington ordered the government to turn over the names. Background on the case is here.
The Justice Department took the case to the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument this morning. At issue in the case is the extent to which releasing the names invades the privacy of individuals who were denied pardon and commutation requests.
The plaintiff, George Lardner, represented by Public Citizen Litigation Group director Allison Zieve, wants to determine whether ethnic consideration played a role in Bush's rejection of thousands of applications. DOJ will confirm whether a specific person received a pardon; the department will not disclose a blanket list of rejected applications. DOJ publicizes the names of applications the president approves.
Today in court, DOJ Civil Division attorney John Koppel called any public interest in the names “negligible and highly speculative.” Publishing a list of names of rejected applicants brings renewed attention to past crimes and only serves to stigmatize the applicant, Koppel said.
Judge Douglas Ginsburg said the applicant, not the public, is dredging up old crimes. “They do that by seeking clemency,” the judge said. “They bring it to the attention of the president.” Ginsburg said it’s “ordinarily a matter of public interest what the president is doing.”
Ginsburg said the denial of an application could generate as much attention as the grant of one. He noted the “great deal of press attention” surrounding President Bill Clinton’s decision to grant a pardon to fugitive financier Mark Rich. Attorney General Eric Holder Jr., a top official in the Clinton Justice Department, apologized during his confirmation hearing for mistakes in the Rich pardon.
Judge Merrick Garland noted in court that applicants are made aware that their neighbors, friends and employers could be contacted during the investigation of whether to grant a pardon. “They know that there’s a risk,” Garland said in court. “They’re on notice about that.”
Koppel argued that federal officials make every effort not to reveal the nature of the inquiry when talking with employers and others about any application. Applicants do not expect that their request for a pardon will become known, Koppel said.
“We can change that expectation,” Ginsburg said.