- The Washington Times - Wednesday, August 28, 2002


The Bush administration argued in court papers that documents related to contentious pardons made by former President Clinton should be withheld from the public to protect the privacy of the pardon-seekers and the president's right to receive confidential advice.

"The president is entitled to receive confidential advice and candid assessments from government attorneys," said White House spokesman Scott McClellan.

The government asserted its argument in more than 100 pages submitted to U.S. District Court earlier this month as part of a lawsuit filed last year by the nonprofit group Judicial Watch, which is seeking access to records of the 177 pardons and commutations that Mr. Clinton considered or approved on the last day of his presidency.

These documents would address, among other contentious issues, the behind-the-scenes deliberations on the clemency that Mr. Clinton granted to fugitive financier Marc Rich and the lobbying done by brother Roger Clinton on behalf of other pardon applicants.

"The release of these documents would have a chilling effect on the deliberative process," Mr. McClellan said.

Justice Department spokeswoman Susan Dryden said the administration was not invoking executive privilege but instead was making a legal argument, in an effort to have the Judicial Watch suit dismissed, about the breadth of internal communications it sees as qualifying for protection should the government ultimately be compelled to produce documents.

The Freedom of Information Act provides a so-called "presidential communications privilege" that exempts from disclosure rules certain memos and other records circulated between a president and his advisers within the White House.

The Justice department has concluded that the documents sought by Judicial Watch are protected under the laws dealing with freedom of information, White House Press Secretary Ari Fleischer said from President Bush's Texas ranch in Crawford.

But, as Judicial Watch President Tom Fitton explained it, the Bush administration is trying to expand the presidential communications privilege to executive-branch records outside the White House.

In its memorandum to the court, the government argues: "To exclude these documents from the scope of the privilege merely because they were initially generated at the Justice Department rather than the White House would arbitrarily and unconstitutionally limit the president in his choice of key advisers regarding the exercise of his clemency power, which is entrusted to him directly under the Constitution without limit."

The government also argued on behalf of the privacy rights of pardon applicants, saying the release of documents that Mr. Clinton considered "would constitute a clearly unwarranted invasion of personal privacy."

Mr. Fitton called the privacy argument ludicrous.

"The Bush White House is essentially saying, 'Leave Marc Rich alone, leave Roger Clinton alone, they're private figures,'" Mr. Fitton said.

"We believe there is a tacit agreement between the Clinton-ites and the Bush-ites not to probe too deeply into each others affairs, and this is part of it."

The court will not rule on the White House pleading for dismissal of the lawsuit until after Judicial Watch files its response in mid-September.

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