As we approach the end Barack Obama's presidency, he, like other presidents before him, will have a final look at the possible use of clemency—his commutation and pardon powers—to correct past injustices. Recently, Obama pardoned 78 convicts, and commuted the sentences of 153 federal inmates, bringing the total to 1,324—reportedly the largest number of commutations by any president in our history. Unlike some presidents who issued “last-minute” pardons for cynical reasons (favors to political or financial friends), Obama has used his clemency powers to alleviate broad injustices resulting from our harsh nonviolent drug laws.
In contrast to his merciful acts in those notorious cases, it is unlikely that Obama will pardon Edward Snowden, though his supporters are arguing that doing so would correct his administration’s excessive use of the sedition laws. Even Eric Holder, Obama’s friend and former Attorney General, now agrees that enforcement of those laws is not warranted in Snowden’s case. Furthermore, no one argues that Snowden acted with criminal intent, as criminal convictions require, even if his methods were questionable.
A House Intelligence Committee report declassified and released at about the time as the Oliver Stone movie Snowden argues that Snowden was a condemnable whistleblower. Snowden tweeted recently that the report documents him “going, again and again—over years, despite punishments—to superiors to report complaints of waste, fraud, and abuse.” He also noted that the report also does not mention how his revelations spurred a change in U.S. policy, and that the journalists who reported on them were rewarded with Pulitzer prizes.
This country is deeply and evenly divided about the values and harms that came from Snowden's disclosures, while much of the world views him as a heroic figure. History will judge Snowden with the generosity of distance. I and others believe, in this country too, as Snowden himself has said, that “The Congress, the courts, and the president all changed their policies as a result of [his] disclosures.” Obama's White House investigation of the Snowden affair resulted in many reforms that Snowden called for, and federal courts have agreed that the actions Snowden criticized were unconstitutional. A balanced disposition of his case makes good sense.
Instead of a pardon, which Obama is unlikely to order, given his administration’s hard line on whistleblowers in national security cases, there is a middle ground he could follow that would save Snowden from the predictable cruel positions of the incoming administration. That is to instruct the Attorney General to conclude a plea bargain with Snowden’s attorneys that would balance his reasonable interests with those of our government.
What should such a settlement include? As a former federal prosecutor, I can imagine a negotiated settlement that would be in the interests of both prosecution and defense. The interested parties might agree that Snowden would plead guilty to misappropriating of government property, and return voluntarily to face a speedy public trial. If he hasn’t retained the material, as he claims, Snowden should tell the government which records he turned over to his select journalists so it can take steps to protect against improper disclosures, short of criminalizing the press. Presuming the good faith of the journalists who have the records Snowden appropriated, the government ought to be able to reclaim those that it could demonstrate to a federal (not FISA) court would endanger national security if they are not released voluntarily.
Snowden has asked for a public trial by jury, and the Constitution guarantees that he is entitled to one. Presumably it would be in Hawaii, where his offense took place. Snowden fears a closed court proceeding, but said he would return if assured he’d receive an open trial. There is no good reason that should not be the case.
Hawaii state courts permit televised trials; its federal trial court does not, though the federal appellate court covering Hawaii does, and some other federal trial courts do. If there is a negotiated guilty plea, all that remains to be decided would be the sentencing. That sentencing hearing ought to be televised as an important way to educate the public. The government could present its case for sanctions, in camera before the judge alone when confidential issues arise. Snowden could make his plea and provide his case for the justification of his acts. Justice is best served when it is perceived to be done.
The New York Times editorialized that Snowden “has done his country a great service,” and deserves “some form of clemency.” His ultimate sentence, after the government presents its case, and Snowden his mitigations, finally would put into a correct context the demonstrated public costs and the verified values of Snowden’s actions. When those facts are finally on the public record, a proper verdict and proportionate sentence could be reached, placing his daring and provocative acts in a full context. Snowden has said he is prepared to face fairly adjudged sanctions. His sentence could include ways for him to contribute to his country’s interests as part of that adjudication. His conviction would reconfirm the vital precedent against theft. A wise and balanced sentence would demonstrate the value of reconciliation as a central element of justice.
It is the season for justice, and such a settlement would be an historic final act for President Obama.