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 matter.

"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 records.

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 violent acts.

"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 activities.

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 of Prisons.

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 outstanding fines.

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 advocates.

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 critics.

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 confidentially.

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 regarding Haiti.