Regulation

Pardon Me?

The Bush administration defends Clinton

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Judicial Watch, a gadfly legal organization founded by the colorful Larry Klayman, became famous for hounding former President Bill Clinton with lawsuit after lawsuit. Written off by Clintonistas as part of the vast right-wing conspiracy, Klayman and his group are now proving to be equal-opportunity burrs in the side of presidential authority. They haven't settled down just because their old foe is gone.

The Bush administration is fighting Judicial Watch's lawsuit to open records and documents held by the Justice Department relating to the 177 pardons Clinton executed on his very last day in office. The White House wants to keep those records closed, not so much to do Clinton a favor as to protect the current administration's right to impenetrable secrecy.

The Bush administration, like the one before it, has shown a general unwillingness to fork over papers, pulling down shades of privilege and secrecy whenever it can. The Clinton pardon papers aren't the only ones the Justice Department has protected: It is also refusing to open the 1927 pardon records of "Back to Africa" leader Marcus Garvey.

Presidents don't actually have to claim executive privilege to keep documents closed to the public. In the Judicial Watch case, Assistant Attorney General Robert D. McCallum has invoked "presidential communications privilege" to shield the documents. But according to Judicial Watch, no such privilege should apply to communications that aren't directly connected to the White House. Many of the documents relating to a pardon, such as attorney's memos, don't actually cross the president's desk.

Whatever the merits, it's unlikely that Judicial Watch will win its case, according to Paul Rosenzweig, a senior legal research fellow at the Heritage Foundation. Courts almost never overturn presidential claims to privilege in civil suits, he says. Though the Clinton administration did lose some executive privilege claims, they all involved criminal cases.

"The pardon power is pretty close to the core of executive privilege," says Rosenzweig. "It is an unreviewable decision by the president to exercise executive grace."

But it is that very finality, argues Judicial Watch President Tom Fitton, that makes greater transparency so vital.