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WASHINGTON — Former D.C. criminal defense lawyer William Borders Jr. makes no excuses for the crimes he committed 22 years ago that led to his disbarment. Caught in a Federal Bureau of Investigation sting operation, he was found guilty of conspiracy to bribe then-federal Judge Alcee Hastings. He spent three years in prison. But when President Bill Clinton pardoned Borders on his last day of office in 2001, Borders thought his long path of repentance and rehabilitation had finally brought him to a point where he could resume his law practice-and redirect it toward helping young people and the community. The D.C. Court of Appeals did not agree, ruling that the pardon did not automatically entitle Borders to reinstatement. Now Borders is before the Supreme Court in a potential landmark case that asks the justices to interpret the scope of the pardon power, one of the most sweeping powers of the presidency. The Supreme Court will consider whether to grant review in Borders v. District of Columbia Office of Bar Counsel, No. 03-246, at its private conference Oct. 17. “The founding fathers are far greater than I am,” says Borders, 64. “They put in the pardon the power to give a person a second chance. D.C. had an obligation to disbar me, but now why don’t they have an obligation to give it back?” Two powerhouse lawyers who are ideological opposites joined to write Borders’ petition: Harvard Law School professor Charles Ogletree and former Independent Counsel Kenneth Starr. “This man has spent two decades apologizing and rectifying a serious error he made years ago. He knows the tarnish will be there forever,” says Ogletree. “I can’t think of a single reason why he should not have a second chance.” The case puts Starr, a partner in the D.C. office of Kirkland & Ellis, in the position of defending a pardon given by Clinton, whose administration he investigated relentlessly. “We felt this case presents very important constitutional issues on core questions of executive power,” says Kannon Shanmugam, a Kirkland associate who worked with Starr on the brief. The National Bar Association has also filed a brief with the Court on behalf of Borders, who was president of the black lawyers organization in 1980, just before his downfall. To former D.C. Delegate Walter Fauntroy, Borders’ case has a spiritual quality to it. “Being pardoned by the president is like being pardoned by Jesus,” says Fauntroy, a longtime friend of Borders. “Your sins are dropped into a sea of forgiveness, like they never happened. It is the only power a president has that cannot be challenged-except in D.C., apparently.” D.C. lawyer disciplinary agencies have opposed Borders’ reinstatement for more than 10 years-long before the pardon. The bar brief notes that Borders has repeatedly refused to testify about his role in the bribery of Hastings, who was acquitted of criminal charges, but was impeached and now serves in Congress. D.C. Bar Counsel Joyce Peters, who wrote the brief opposing high court review, declined to comment on what she termed a “pending case.” But she says the city’s bar discipline system should not be blamed for Borders’ situation. The decision that Borders is appealing was “made by the court, not us,” says Peters. “There’s nothing to prevent Mr. Borders from applying for reinstatement. The court just said reinstatement wasn’t automatic just because of the pardon.” Borders and his lawyers strongly disagree. The pardon power in the Constitution, they insist, was intended to mirror that of the king of England, without qualification or review-and it sweeps away all penalties that relate to the original offense. The Supreme Court, they say in the petition, “has long held that a presidential pardon nullifies not only the pardoned conviction itself, but also any disabilities that attach as a result of the conviction.” The most powerful precedents they cite date back to the aftermath of the Civil War, when many Confederate officials were pardoned for their wartime actions. The key case involves Augustus Garland, who became U.S. attorney general after being pardoned. Congress in 1865 had passed a law requiring members of the Supreme Court bar to take a loyalty oath, swearing that they had never served an enemy of the United States. Garland, a member of the Confederate Congress from Arkansas who had been pardoned after the war, insisted that the pardon meant he did not have to take the oath. The Supreme Court agreed in Ex parte Garland, finding that a pardon “releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. . . . If granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man.” So new was Garland after the ruling that then-President Ulysses Grant appointed him attorney general. Ironically enough, Garland died in 1899, while arguing a case at the Supreme Court. Borders’ brief also states that the D.C. appeals court ruling conflicts with a 1975 decision by the U.S. Court of Appeals for the 7th Circuit. The D.C. Bar brief disputes the relevance of the Garland case, noting that the Supreme Court ruled in his favor because the loyalty oath law violated constitutional bars against ex post facto laws and bills of attainder. The language on the scope of pardons is “dictum,” the brief insists. Clinton’s pardon of Borders was not one of the controversial, fast-track pardons Clinton also granted that day. Ogletree and Fauntroy made application for it in the traditional fashion, supported by numerous letters from black members of Congress and others. “There was no short circuit to it,” says Borders. “The FBI did a full background check, spoke to people I knew, everyone. The process took a year.” Borders declines to revisit the subject of the crimes he committed, describing it as a time “when I had gotten away from the church.” But since leaving prison, Borders “made a pact with God,” he says, to return to church and to rebuild his life. He has worked for a construction company and run a flower shop in the years since, but has tried whenever possible to use his legal training. He taught for a time at the University of the District of Columbia law school and worked with high school students interested in careers in the law. He had also worked for Rep. Earl Hilliard (D-Ala.), but that job ended when Hilliard lost his bid for re-election last year. Borders says he is persisting in his fight, not to make money or even to seek vindication. He wants the court to follow the Constitution and give full meaning to the pardon power. For himself, he says, “it’s a matter of wanting to live a wholesome life.” He hesitates to say more. “People point to me as an example of how someone can rehabilitate himself. I’ve risen to the top, fallen to the lowest of the low, and come back up. That’s what Christianity is all about. That’s what life is all about.” OTHER CASES UP FOR REVIEW � Sheffield v. Aceves, No. 03-89. Union’s obligation to disclose financial records to nonmembers who pay agency fees. � Cooper v. Boyce, No. 03-176. Defamation action stemming from election campaign advertisement. � America West Holdings Corp. v. No. 84 Employer-Teamster Joint Council Pension Trust, No. 03-250. Fraud-on-the market theory in securities litigation. � Cigna Property and Casualty v. Ruiz, No. 03-251. The use of workers’ compensation benefits under Longshore and Harbor Workers’ Compensation Act as payment for outstanding child support. � Fidelity Exploration & Production Co. v. Northern Plains Resource Council Inc., No. 03-257. Requirement of permit under Clean Water Act for pumping ground water from coal bed into river. - Shaina Jones “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected] .

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