Above photo: Snow falling at the White House on Jan. 6. White House, Oliver Contreras.
It’s an insurmountable conflict of interest to have the U.S. pardon attorney reporting directly to the Justice Department’s person in charge of prosecutions.
To the surprise of likely nobody who knows me, I asked former President Joe Biden for a presidential pardon before he left office. And to the surprise of likely nobody who knows Joe Biden, I was ignored.
I always knew that my chances of a pardon were very poor. But I thought that I at least had a shot for a number of reasons.
First, as background, I was convicted in 2012 of violating the obscure Intelligence Identities Protection Act of 1982. I was only the second person ever charged with violating this law. The other person confessed to spying against the U.S. for Ghana.
I knew, of course, that my charge was in retaliation for blowing the whistle on the C.I.A.’s torture program. Even my attorneys said that my case wasn’t about me. It was about frightening any C.I.A. employee from going to the media to report waste, fraud, abuse, or illegality.
Indeed, since the conclusion of my case, the C.I.A. has initiated a reward program for employees who rat out coworkers whom they suspect could become whistleblowers. And C.I.A. computer systems are now programmed to recognize when an employee might be considering blowing the whistle on illegal C.I.A. activities.
As I said, I thought I had at least a shot at a pardon for a number of reasons. First, a Greek Orthodox priest who has been very close to Biden since the 1970s kindly offered to help me by weighing in directly with the president.
Second, I had a letter signed by 70 former C.I.A., F.B.I., and NSA officers, as well as several ambassadors, generals, and judges asking Biden to pardon me. I had a floor statement from my congressman calling on the president to pardon me. I had a letter written by the man who wrote the law that I was convicted of violating saying that I should never have been charged in the first place.
I had editorials and op-eds from The New York Times, The Boston Globe and The St. Louis Post Dispatch saying that charging me was an abuse of power. And as a cherry on top, I had an op-ed written by Sen. Joe Biden saying that the law I was convicted of violating was unconstitutional and should never have been passed in the first place.
Incidentally, Biden was one of only five senators to vote against the Intelligence Identities Protection Act. He and Gary Hart are the only two still alive. Gary Hart wasn’t interested in helping me. I’m just “too controversial.”
Broken Process
With all that said, I’ll simply try my luck with Donald Trump. I have a few ins with the Trump White House and I’ll do my best. But that’s not the point that I want to make here. The point I want to make is that the pardon process is irretrievably broken. It should be scrapped and rebuilt.
On the surface of things, the pardon process is simple. You go here and click on “Apply for Clemency.” Easy, right? Well, not so fast. At any given time, there are between 5,000 and 10,000 applications pending.
And the number of people on the pardon staff is fewer than a dozen people. Anybody currently serving a sentence can apply for a commutation. If that is granted, it simply means that you no longer have to serve the sentence.
You’re free to go home. But the conviction still stands. It remains on your record. A pardon is different. It’s forgiveness for whatever crime you have been convicted of. You are no longer guilty of having committed the crime. Once pardoned, you once again have the right to vote, the right to own a firearm, and in my case, return of my federal pension.
Again, the process is complex. Let’s say that I go online and fill out the form. It is then referred to the F.B.I., which has to do a background investigation to see if I “deserve” the pardon. Have I stayed out of trouble? Have I shown remorse for my “crime?” Believe it or not, that’s mandatory for consideration.
The F.B.I. then sends its recommendation back to the U.S. pardon attorney. With that in hand, the pardon attorney then sends the file to my prosecutors and to my sentencing judge for their comment.
As you can imagine, those two entities rarely say yes to a pardon. Once their feedback is collected, the pardon attorney makes a recommendation to the White House.
It’s based on that recommendation that the president, almost always through a lower-level aide, makes a final decision. Aside from mass pardons, like the Jan. 6 rioters or people convicted of marijuana crimes, there are precious few pardons, no matter who the president happens to be.
A president’s authority to issue a pardon is written in the Constitution. It wasn’t until 1865, however, that Congress decided to create an Office of the Pardon Clerk within the Department of Justice to handle pardon applications.
That clerk, or attorney, reported directly to the deputy attorney general. (Interestingly, this legislation came as a result of Abraham Lincoln’s habit of staying up late into the night to issue pardons.)
The office’s name has changed several times over the years, but the goals haven’t. What has changed is that the numbers of people actually granted pardons has become minuscule. Joe Biden granted just 80 pardons, Donald Trump granted 144 in his first term, Barack Obama granted 212, and George W. Bush signed off on 189.
Remember there are thousands of applications. And compare those pardons with the 1,110 granted by Dwight Eisenhower, the 1,913 given by Harry Truman, the 2,818 given by Franklin Roosevelt, and the 1,087 granted by Woodrow Wilson.
I believe that the Office of the U.S. Pardon Attorney should be independent of the Justice Department, and the office should be located in the White House’s Executive Office Building, not in the Department of Justice.
Having the pardon attorney report directly to the person in charge of prosecutions is a conflict of interest that is insurmountable for the applicant.
In addition, what more really needs to be done than a background investigation to determine if the applicant has lived a law-abiding life since release? Why do the prosecutors get a say? Why should the sentencing judge?
And what is the likelihood that they will say, essentially, “Oh, my mistake. He shouldn’t have been prosecuted. He shouldn’t have gotten such a sentence.” Almost nobody will do that.
Pardon reform is highly unlikely, however. Nobody in any position of authority is talking about it and so we’re stuck with the system that we have. With that said, I will continue to support pardons whenever I read about them.
The more, the better, ideology aside. And as for me, I’ll just keep on keeping on. Something good will come. Eventually.
John Kiriakou is a former C.I.A. counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act—a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.