Clinton Asserts Executive Privilege in Clemency
The New York Times - September 17, 1999 - Katharine Q. Seelye
WASHINGTON -- Citing executive privilege, President Clinton on Thursday rejected subpoenas from congressional Republicans to turn over records of private deliberations that led him to offer clemency last month to 16 members of a violent Puerto Rican nationalist group.
The White House, bolstered by an opinion from Attorney General
Janet Reno, asserted flatly that Congress had no authority over the
"Pursuant to the Constitution and the separation of powers
doctrine, the President's authority to grant clemency is not
subject to legislative oversight," Cheryl Mills, the White House
deputy counsel, wrote to Rep. Dan Burton, R-Ind., who is chairman
of the Committee on Government Reform, which subpoenaed the
In addition, Ms. Mills said, the White House is spurning the
committee's subpoena for Beth Nolan, the president's new chief
counsel, to testify on the matter. But administration officials
said on Thursday night that three other officials will appear next
week at hearings by the panel although they will not testify to
matters considered confidential.
The White House will release some documents not covered by
executive privilege, but administration officials did not give a
detailed description of them.
Congressional Republicans reacted angrily to the rebuff. Burton
accused the president of hiding behind the shield of executive
privilege to avoid giving the public a full explanation of why he
granted clemency to the militants -- a move that Burton said runs
counter to the interests of the United States and its security.
This was the fourth time the Clinton administration has asserted
executive privilege in response to demands from Congress.
Burton said in an interview that while the president has a right
to claim executive privilege, he also has a moral obligation to
tell the public why he freed people who were members of a terrorist
organization that killed or maimed nearly 90 people in bombings in
the 1970s and 1980s. None of the 16 prisoners was convicted of
"The American people deserve an explanation, and he's thumbing
his nose at them," he said.
Republicans have privately delighted in the political chaos that
the matter has caused for Hillary Rodham Clinton, who is almost
certainly running for the U.S. Senate from New York. Mrs. Clinton
at first supported the clemency offer then opposed it, incensing
many Puerto Rican members of Congress. Two new polls show that
large majorities of voters, both nationally and in New York,
disapproved of the clemency offer. And more view Mrs. Clinton's
handling of the episode unfavorably than favorably.
Burton said that even if administration officials refused to
discuss the decision-making process, he would issue subpoenas on
Friday for representatives of the Justice Department, the FBI and
the Bureau of Prisons to appear on Tuesday to provide as much
documentation as they could about the prisoners' backgrounds and
Several top law-enforcement officials recommended against the
clemency, and Burton wants to get that on the record. He also said
his committee had video tape of two of the prisoners making bombs
in 1983 and that he intended for the public to see that tape.
The Senate Judiciary Committee also plans to issue subpoenas for
documents and testimony regarding the clemency case, according to
its chairman, Sen. Orrin Hatch, R-Utah, and presidential candidate.
Myron Marlin, a Justice Department spokesman, said that the
department officials would appear but would not testify regarding
advice given to the president or deliberative communications. Those
to be subpoenaed are Jon Jennings, acting assistant attorney
general; Neil Gallagher, the FBI's assistant director for
terrorism, and Michael Cooksey, an assistant director at the Bureau
Joe Lockhart, the White House spokesman, dismissed Burton's
action as politically motivated. "I don't really know what
legislative accomplishments he's had in his tenure as chairman,"
Lockhart said. "But I can tell you that we've gotten something
like 700 subpoenas from him. He has publicly stated that his
mission is to get the president."
Congressional Republicans concede that the clemency matter is
more or less moot now.
Eleven of the prisoners were freed last Friday. Two prisoners
rejedted the offer; one accepted a deal to serve five more years,
and two who had already served out jail sentences were forgiven
Still, the Republicans have sought to keep the matter alive as a
political miscalculation by Clinton who, some suggest, seemed
unaware of the kind of backlash that such a move would create in
the minefield of New York politics and among law-and-order
The president said last week that he was responding to
humanitarian calls for the prisoners' release, that they had served
long enough, that none of them had done anyone "bodily harm" and
that they were being punished excessively for "guilt by
association" with terrorists.
But his response seems to have satisfied few and only fueled his
Mrs. Clinton's likely Senate opponent, Mayor Rudolph Giuliani,
the Republican mayor of New York City, excoriated the president on
Thursday for trying to "conceal" the basis of his decision.
"He's taking a very, very questionable and bizarre situation
and making it appear even more questionable and bizarre," the
mayor said. "He has never granted clemency before in any serious
case. All of a sudden he does, and now he wants to not release the
documents from which he made the decision."
Lockhart said that Clinton's invocation of executive privilege
should not suggest anything untoward in his decision-making
process, rejecting any suggestions that the president offered the
clemency to help his wife win the support of Puerto Rican voters.
He said the president had every right to receive advice
As he has in the past, Lockhart noted that the president's
decision was based on a recommendation from Charles F.C. Ruff, who
was his counsel until a few weeks ago.
"I can say absolutely and unequivocally that this case was
based on the merits as presented by the former counsel, Chuck Ruff,
and the politics of New York or anywhere did not come into play,"
Lockhart asserted. Ruff has not returned phone calls on the matter.
Clinton's three previous claims of privilege were all in 1996
and pertained to the White House travel office firings, a
memorandum to the president on drug enforcement, and policy
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