DOJ Inspector General Faults Pardon Attorney for Misleading the White House About Clarence Aaron's Clemency Petition

On Tuesday the Justice Department's inspector general issued a report that criticizes Pardon Attorney Ronald Rodgers for mishandling a clemency application by Clarence Aaron, who is serving three concurrent (not consecutive!) life sentences for his involvement in a 1993 cocaine deal. The inspector general's office investigated the case at the request of Rep. Chaka Fattah (D-Pa.) after stories by Dafna Linzer in Pro Publica and The Washington Post last May revealed that Rodgers had failed to communicate crucial information about Aaron's petition to the White House. The report confirms Linzer's findings, saying Rodgers "did not accurately represent the views of U.S. Attorney Deborah Rhodes in his e-mail to the White House recommending against a commutation of Aaron's sentence" and that he described the opinion of U.S. District Judge Charles Butler, who presided over Aaron's trial, in an "ambiguous" and potentially "misleading" way.

The Justice Department recommended against commuting Aaron's sentence in 2004, but toward the end of George W. Bush's second term the White House asked it to take another look. At this point two important factors had changed. Rhodes, the U.S. attorney for the Southern District of Alabama, where Aaron was prosecuted, supported commuting his sentence to 25 years, meaning he could be released as early as March 2014 (taking into account credit for good behavior). By contrast, her predecessor, David York, had opposed Aaron's petition. Judge Butler, who had been compelled to send Aaron to prison for life by mandatory minimum sentences, also favored commutation, in his case to time served (15 years at that point).

Yet in his email message to the White House, Rodgers described the turnaround in the position of the U.S. Attorney's Office as "a slightly revised recommendation" and said Rhodes believed "Mr. Aaron's commutation request is about 10 years premature." In fact, notes the inspector general's report, "the change was dramatic," and Rhodes never said Aaron's sentence should be commuted in 10 years. "The most reasonable interpretation of Rhodes' recommendation," the report says, "is that Aaron's sentence should be reduced to 25 years by granting his petition for clemency to that extent, not denying it with the understanding that it might be renewed in a decade." The practical difference between those two options, assuming credit for good behavior, would be four additional years in prison. Describing Butler's position, Rodgers said the judge "had no objection to commuting the sentence presently," which could mean letting him go right away (the option Butler favored) or making him serve several more years (Rhodes' recommendation). "The better approach," the report says, "would have been to make clear that Judge Butler did not object to a commutation to 'time served.'"

Kenneth Lee, the associate White House counsel who was dealing with Aaron's petition, told the inspector general's office that if he had known what Rhodes and Butler actually said, "the likely outcome would have been that he would have sent the clemency request back to the [Justice] Department and asked them to reconsider their recommendation that clemency be denied." The report suggests that Rodgers let his own opposition to Aaron's petition influence his description of Rhodes' recommendation:

We believe that Rodgers's characterization of Rhodes' position was colored by his concern…that the White House might grant Aaron "clemency presently" and his desire that this not happen….

Rodgers did not represent Rhodes's position accurately, and his conduct fell substantially short of the high standards to be expected of Department of Justice employees and of the duty that he owed to the President of the United States. We also believe that the language Rodgers chose to describe Judge Butler's views was ambiguous and risked causing confusion or a misunderstanding. We are referring our findings regarding Rodgers's conduct to the Office of the Deputy Attorney General for a determination as to whether administrative action is appropriate.

The report also faults a DOJ attorney who reviewed Rodgers' email message, saying he should have done a better job of editing it for accuracy and clarity. It also suggests that Rodgers should have prepared a new memorandum in response to the White House's request for a fresh look at Aaron's petition rather than relyiing on a supplementary email message and that more-senior DOJ officials should have been involved in the process. "Instead," the report says, "in the name of providing the President with a recommendation in a timely manner, the Department truncated its review process and the result was that an inaccurate e-mail was vetted by a relatively inexperienced attorney in the Office of the Deputy Attorney General and was sent directly to the White House."

Linzer notes that "the White House relies almost exclusively on Rodgers in deciding whom the president will forgive or release from prison." With a gatekeeper like Rodgers at the Justice Department, it is not surprising that President Obama's clemency record has been exceptionally stingy, even compared to the unimpressive records of the previous four presidents. Yet last July, Attorney General Eric Holder expressed full confidence in Rodgers, who remains on the job, though recused from consideration of Aaron's latest petition. "Rodgers has to go," Julie Stewart, president of Families Against Mandatory Minimums, tells Linzer. "No one, least of all the president, can have any confidence that this pardon attorney is giving the president the unbiased information he needs to make clemency decisions."