By George Lardner Jr. Washington Post Staff Writer Wednesday, April 2, 2003; Page A04
A federal judge has upheld the Bush administration's claims of secrecy for the records of former president Bill Clinton's last-day pardons, including writings of officials Clinton never talked to and papers he never saw.
U.S. District Judge Gladys Kessler handed the Justice Department a broad victory against Judicial Watch over the inside story of the pardons and commutations Clinton granted or considered in his final days in office.
In a 14-page ruling, Kessler said that the "presidential communications privilege" President Bush's lawyers invoked had to be considered not only in the context of an individual president's interest in shielding information from the public, but also in its "broader, historical context" of allowing presidential advisers to give the fullest and most candid advice they can on sensitive issues. "Thus, the presidential communications privilege [a subset of executive privilege] serves as a vitally important protection for the institution," she said.
Clinton recently waived his right to restrict access to most of the confidential advice he received during his administration. The step will allow historians, scholars and others to have access to the documents within a few years unless Bush, or any successor, vetoes their release.
The 177 pardons and commutations Clinton approved on his last day in office produced an uproar, especially over the clemency he bestowed on fugitive financier Marc Rich.
The Bush White House has not said whether it would object to the release of the Clinton records as soon as the minimum five-year waiting period prescribed by the Presidential Records Act expires, but lawyers there and at the Justice Department have taken an uncompromising stand in the Judicial Watch litigation. According to their pleadings, 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."
Kessler agreed, granting the government's motion for summary judgment without further hearings. The ruling was dated March 28, but was not available until yesterday.
Judicial Watch, a legal watchdog group that has challenged both Democratic and Republican administrations, had argued that even if some of the documents could be legitimately withheld, the privilege could not be invoked for documents that did not directly involve Clinton or his White House staff. Many of the documents at issue were generated by the Justice Department's Office of Pardon Attorney and could include recommendations from a sentencing judge or a prosecuting attorney.
However, Kessler said the purpose of those records was to help Justice Department employees "assist the president in his decision-making process." Applying the privilege to them, she said, was a "limited extension."
Judicial Watch President Tom Fitton called Kessler's ruling "extreme in its reading of presidential prerogatives" and said it would be appealed. "What we have here," he said, "is an appointee of the Clinton administration [Kessler] upholding the position of the Bush administration to cover up a scandal of the Clinton administration."
White House spokesman Scott McClellan said, "We are pleased with the ruling." He said it not only reaffirms the president's ability to receive confidential and candid advice, but also recognizes "that this privilege applies to former, current and future presidents."
The Justice Department withheld more than 4,340 pages under the presidential privilege doctrine and 524 pages as an unwarranted invasion of privacy. Kessler upheld the privacy claim, too, saying it was justified "even if the information concerns possible felons."