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Special Report

All-Star Panel: Reaction to new rules for clemency

This is a rush transcript from "Special Report," April 23, 2014. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

JAMES COLE, DEPUTY ATTORNEY GENERAL: For our criminal justice system to be effective, it needs to not only be fair, but it also must be perceived as being fair. These older stringent punishments that are out of line with sentences imposed under today's laws erode people's confidence in our criminal justice system.

THOMAS DUPREE, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: By making these sorts of executive orders either on the immigration front or here on the sentencing front, so if he can't get Congress to go along with what he wants, he is sending a signal to his supporters that he's preparing to take executive action unilaterally to accomplish the same thing.

(END VIDEOTAPE)

SHANNON BREAM, ANCHOR: And today, a word of clemency from the Department of Justice with regard to many drug offenders already in jail, let's talk about it with our panel, Steve Hayes, senior writer for The Weekly Standard, A.B. Stoddard, associate editor of The Hill, and syndicated columnist Charles Krauthammer. Welcome, everyone. Steve, what do you make of this, because there's been bipartisan support? There have been conservatives who have supported these efforts as well, saying it's a good idea. Our jails are overcrowded. Let's use some common sense.

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: I guess this is what struck me as sort of curious about this move, and it speaks to the last comment that we heard – the last soundbite that we heard. The president seems intent on doing unilaterally what there appears to be growing support for doing legislatively. But he's choosing to do it unilaterally. I don't actually have any problem necessarily with the substance of what he is doing -- with the policy of what he's doing. I think most people on the left and right agree that there need to be some sentencing reforms. The question is how to do them, how to sequence it, and shouldn't we be doing this legislatively.

You had Dick Durbin and Mike Lee in the Senate introduce the smarter sentencing act which doesn't lift mandatory minimum sentences but allows for some escapes or some exceptions and gives judges some discretion on what they will do sort of on a case by case basis. And you had scholars at the conservative Heritage Foundation making similar arguments and similarly legal scholars on the left making those arguments.

I guess what I don't understand is why President Obama is choosing to sort of ignore all of that, to build on that growing consensus and actually lead as opposed to just doing what might be easier. But, you know, I think, to speak to FBI Director Coles comments that these kinds of older, more stringent sentences can erode the rule of law, you can make the argument that in a sense doing this the way the president is doing this by taking sentences that have already been imposed and in effect saying never mind also could have the same effect.

BREAM: Charles is already nodding over here. Chomping at the bits.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Actually, Steve is entirely right, so I endorse everything he said, although –

(CROSSTALK)

BREAM: The seal of approval. The Krauthammer seal of approval.

KRAUTHAMMER: It was slightly understated. This is lawlessness. If it were just this along, you would say, yes, on the merits that's not a bad idea. There was over-sentencing in the past. But we know what he's done with immigration reform where he unilaterally has enacted the Dream Act which the Congress had rejected, which you are not supposed to do. The Constitution is very, very specific. Legislation comes from Congress. It doesn't come from the White House. Why can't the president obey the Constitution, execute the laws faithfully, and let Congress change them, which is what he ought to be doing?

Now, on the substance I think it's not a bad idea, but there is one thing we ought to consider. Many of these people who end up with sentences like these have plea bargained. So they really should have gotten much tougher stuff. They could have been a dealer, but in order to get a prosecution, they would get an admission that the person either used or was small time or wasn't involved in a gang or what, so you've got people who may be pretty bad apples in this crop that you want to be extremely careful about releasing. Yes, some of them were over-sentenced but I'm hope this is not going to be a mass clemency done for political reasons and for show reasons.

BREAM: Well, let's talk about the convicts who are going to have to meet these six requirements. Carl Cameron reported on this tonight. This is the criteria that they are going to have to meet if they are going to qualify to then apply for clemency, serving a sentence under the old law greater than what they would get today, if they are convicted of nonviolent crimes, no links to organize the crime, served at least 10 years of their sentence, no other significant criminal history, good prison records and no history of violent. A.B., is that good enough for you?

A.B. STODDARD, ASSOCIATE EDITOR, THE HILL: I think if they follow through on that criteria and they scrutinize the applicants, because they have to apply for this, it sounds like it is not controversial and it's reasonable that if they have a good record, they are nonviolent, they never were involved with any gangs, they have had a good prison record, and they have served 10 years, that that's reasonable.

President Obama is no longer in interested in waiting for Congress to act for anything. Whether there is bipartisan support building or not, he's obviously made it clear that he wants to speak to his supporters, perhaps galvanize them to turn out in the midterm elections on issues that are important to them and he's going to go it alone no matter what. So that's not really new and surprising. I don't think if they uphold these -- the strict criteria and this process that it will lead to anything dangerous or controversial.

KRAUTHAMMER: Obama may not be interested in working with Congress, but the Constitution requires him --

STODDARD: I know it's his job. I'm just saying this is one of a long string --

KRAUTHAMMER: It's not just he's negligent in executing his job. He's being unconstitutional, and if it's becoming a habit, which it's becoming, and that's the problem, it's going to establish a principle that a Republican will come into office and he will say I campaigned against capital gains taxes so I'm going to order the FBI not to collect it.  That's not -- if that were to happen, you could be sure that the liberals would be screaming about --

STODDARD: Of course.

KRAUTHAMMER: But that's the point. This is eroding the rule of law in a systemic way time after time.

BREAM: And a lot of people think that's the foundation of liberty and freedom is the rule of law and the ability of citizens to rely on that. It's something that President Obama talked about when he was campaigning. He said one of the primary things he was going to do was to rein in this over use of executive power. But Steve, we've mentioned many things that people feel like with regard to prosecutorial discretion, with not deporting, and there's a big debate over what their deportation number really do and don't mean, there is this ongoing conversation with those who even supported the president through both of his campaigns saying now they feel like it does set a dangerous precedent.

HAYES: But he's all over the place on this. Even if the president were consistently abusing the law, which I think he is mostly in the domestic field, he's not consistent overseas. He's not consistent with respect to powers that I think the executive probably does have. Remember, the one time he decided to go to Congress was when he went to Congress on Syria so that they could constrain him to keep him from doing what he had already pledged to do. So why is Congress important in that context but something to disregard in all of these other contexts?

BREAM: Well, and there is a lot of criticism being levied at the Hill as well, saying people can complain all day about this overuse of executive power and they have held hearings, and there's compelling testimony. But, A.B., a lot of people are pointing to folks on the Hill saying why aren't you doing anything about it? What can be done?

STODDARD: Look, if you examine how many legislative days are left, it's about 54. But there are not even going to legislate on all those days before they take off for an active midterm campaign, there is no plans to tackle anything. House Speaker Boehner said last week to some supporters privately he's hell bent on doing immigration reform. You can ask anyone who is involved in the process, they said they couldn't even pass a rule. It's entirely impossible. There will be no big debates or small in Congress this year.  And so no matter how much bipartisan support there is for something that sounds very reasonable, that would actually make both parties, I think, look good, they are doing nothing this year.

BREAM: Final word on this, Charles?

KRAUTHAMMER: I think it's all been said rather --

BREAM: And with the Krauthammer seal of approval.

KRAUTHAMMER: I do think there's going to be a day when Democrats will rue the day that they did not at one point, any point on immigration, on sentencing, on any of the things Obama has done unilaterally, simply stand up and say it ought not be done this way. And it's a precedent that's going to haunt us in the future.

BREAM: And we'll see how they feel about invoking the nuclear option in the Senate as well, something else that we'll see how it turns about possibly.

KRAUTHAMMER: If it's nuclear, I'm in favor.

BREAM: OK. With that, next up, the president is in Asia trying to calm anxious allies.

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