Walking And Talking And Yelling At Clouds: The Benign Prerogative

Original airdate: January 14, 2004

Written by: Carol Flint (2)

Directed by: Christopher Misiano (18)

Synopsis

Criminal justice and all its quirks - pardons, mandatory minimums, sentencing guidelines - weigh heavy on the President's mind as the State of the Union address draws near. Charlie has a romantic entanglement. Toby sees how the polling sausage is made, in shopping malls. A decision made with good intentions ends tragically.

"I need to learn how to not be so ... how to keep things at arm's length."

"I hope not."

The West Wing tries to show us politics as it ought to be. We see leaders who stand on principle, who make the tough choices, who do what is right even though it may not be politically wise. Well, the show tries to do that (think back to Let Bartlet Be Bartlet, or Inauguration: Over There, or any of the other examples of the administration doing the right thing instead of the easy thing), but at the same time, the demands of drama, the siren call of "balanced realism," and the desire to show these characters as human beings who do still make decisions based on caution and pragmatism can put something of a damper on all that optimistic enthusiasm. What happens in this episode is that that caution and pragmatism, while well-intentioned, ends up with somebody dying.

(Sidebar: why is everybody so worried about what it might look like if the President issues too many pardons? Why would they be terribly upset about a donor's son getting a pardon, particularly when they've done a great job of setting up the reasoning behind correcting these overreaching sentences? Heck, why should they balk at even a bold move like pardoning Lessieur ... because President Bartlet is never going to run for office again anyway. He's in the second year of his final term, he's already got an intransigent Congress fighting everything he does, he's not in the position to try to preserve any votes for 2006 - why not go big? Why not just do what he knows is right? Why is Leo holding him back? What are they "protecting"? Just my opinion - seems like an administration in its second term with an opposition Congress is already limited by the Republicans, no need to be putting more artificial limits on the things you can do without them. But I digress.)

Anyway, this episode delves pretty deeply into criminal justice and the federal judiciary and the rules of sentencing and the morality of the legislative branch taking away judicial discretion, as well as the power of the pardon and whether it's being used as it was intended. It's a pretty good show for the thinking viewer, even if it does cover some of the same ground as Take This Sabbath Day and Mandatory Minimums - but this is also a tremendous showcase for Janel Moloney's Donna, and she is outstanding in an emotional, deeply affecting performance.

It's also another episode that plays with time in its structure, in what I think is a pretty interesting way. Similar to What Kind Of Day Has It Been, we start with scenes immediately before the State of the Union speech, with snippets of people and events jumping out at us with no context, like Rena - the casually dressed staffer who picked up trash around the West Wing in Shutdown - suddenly reappearing and putting a stick of gum in Toby's jacket pocket:

"Extra gum, for your big night. It's okay ... we all get oral when we're nervous."

Where did she come from? And then Charlie, getting slapped by a woman right there outside the Oval Office:

That's a surprise. And then Donna, coming in to CJ's office, a stricken look on her face with no explanation for us as to what's happening:

Bam, flashback to three weeks earlier, so we can catch up on what the heck is going on here. It's a neat dramatic structure, well-used here, I think, because we really have no context at all to try to figure out what these opening snippets are supposed to mean. On the other hand, it's not quite as elegant as What Kind Of Day Has It Been, there's some frays around the edges - the end of the cold open isn't the end of the setup, for example: we roll the titles then get some more of Charlie and Meshell on January 20 before we flash back to New Years Eve. A more classically elegant construction would have hit the flashback right away. Likewise, at the end of the episode, there's actually quite a bit of time that passes from picking up at the moment where the flashback starts (just before everyone leaves for the Capitol and the speech) to the actual end of the episode (we skip over the President actually learning about Donovan's death, jump to after the speech, back at the White House). That isn't as much of a flaw of the structure, though, in my opinion, but ... it could have been tighter.

I'll save the main storyline for last, because we can cover the others fairly quickly. Charlie starts out at a New Years' Eve party at Angela's, where he bumps into a cute young budding reporter named Meshell Anders. They hit it off (really, really well, apparently, as we're able to surmise later in the episode they slept together that night), and Charlie is so enamored with her that he brings her around for a private tour of the West Wing. It's at that point she reveals she's not just an intern for the Afro-American, but she's joining the White House press corps as an off-camera entry-level reporter for NBC.

For some reason, Charlie blows up at that. I mean, yeah, I get that he feels betrayed that he showed her all the backroom sights of the West Wing and set her up for a young-intern-press-camp thingy with CJ that she's obviously now overqualified for - but his reaction just seems overblown. I think writer Carol Flint tries to make a tie-in to Charlie being protective of the President as a father figure ("He's not just the President") and somehow he thinks he's letting Bartlet down by giving this network reporter some extra access, but it doesn't play.

Anyway, he gets mad, won't return her calls, she comes to the White House on SOTU night with her aunt's friend Angela, ignores Angela's warning to not see Charlie, sticks her head in his office, he coldly refers to her as "Ms. Anders," she slaps him. That's about it. She says she understood Charlie when he said President Bartlet wasn't just the President, but he says, "See you around," and that's the end of that. Not the greatest storyline of all time, by far.

Joey Lucas is coming by to help do some polling for the SOTU. It's not that they need help crafting the speech - Toby basically has it finished three weeks early - but to find the tone, the delivery style, the "punch" to really make it land (and, for Toby, he still wants to find that key paragraph that the entire address can be centered around).

Josh is kind of intrigued - he was interested in getting together with Joey in prior episodes like 20 Hours In L.A. and Mandatory Minimums and Bartlet's Third State Of The Union - and as he and Donna talk about her coming he's priming himself to maybe ask her out (Donna, however, has already run into Joey and knows more about her current situation than Josh does):

Josh: "I heard she was seeing someone."

Donna: "Yeah, I think she is."

Josh: "Did she say she was seeing someone?"

Donna: "No."

Josh: "So who knows? Maybe the time is ripe."

Donna: "Maybe not so much."

And then Joey calls out from behind: "Josh!"

A very pregnant Joey. Josh's reaction is priceless:

Joey is heading out to shopping malls around the country to test out some different deliveries of the speech, and Leo sends Toby out with her because, well, the speech is done and Toby doesn't have anything better to do. Heading out with him is Rena, that staffer out of nowhere that helped during the government shutdown, and we discover Toby has hired her as his assistant. So that's why we saw her at the start of the show.

Toby's not thrilled with the direction of the polling - Joey is using it to find out "purchasing intent," treating administration policies like selling washing machines - but at a stop in Bradenton, Florida, he follows a man who storms out of the mall in the middle of filling out his paperwork ("Keep your ten bucks!").

Toby queries the guy about what has upset him, and he has an answer (one that reverberates to today's politics, at least to me ... come on, guys, you're in office while all these horrible things are happening to our norms and our rights - do something!):

Man: "What is it you want, you want me to feel like I'm part of the club?"

Toby: "Yeah, maybe."

Man: "Well, you won't do it with words. Not words that are pre-tested, reworked, sanded down and wrapped in a bow. Hey, you wanna impress me? Do something. Talk's cheap, pal."

That leads Toby to happily reflect, "That's my guy. That's who I write for." Unfortunately that plotline doesn't go anywhere else, we don't actually see Toby incorporating "his guy" into the writing of the State of the Union.

CJ keeps getting calls from her old boyfriend Ben (we discovered in Constituency Of One that they lived together for six months; now we find out he's a park ranger in Alaska), but that's about the extent of that. Although I do love Carol's reaction when CJ tells her what to do "if he calls again."

"If?!?"

Leo is also dragging his feet about accepting an invitation to join the Bartlets for Presidents Day weekend - we eventually find out his ex-wife Jenny's wedding is that same weekend, and he wanted to give Jed and Abbey an out so they could attend. But that's not what they want to do, they'll send the couple something nice ("a juicer, maybe." "Encourage Howard to lose some weight"), but Leo is who they want to spend time with.

Now, the big story. Congress has passed an anti-kidnapping bill, a big priority for the administration after the events concerning Zoey the previous spring (Commencement through The Dogs Of War), but there's a catch. Republicans have attached an amendment with even more wide-ranging mandatory sentencing minimums that tie the hands of federal judges in handing down punishments. That's something President Bartlet is strongly against; and when discussions with Abbey spur him to consider handing out some pardons and commutations, the issue of prison sentences that don't fit the crimes comes to the forefront.

As I said in my intro, there's some really good discussions about mandatory minimums and the inherent unfairness of strict sentencing rules here. At one point, after Leo tells Josh they're not talking about adding to the SOTU, they need to hammer out the pardons, the President lays it all out there:

President: "Our judicial system is predicated on an individual's right to a fair trial. But how individual is that process? If a 258 box grid seals your fate before you even set foot in front of a judge, a federal judge that my office has invested considerable effort in selecting, who is then constrained from exercising basic common sense while 29-year-old prosecutors who make their bones on their win-loss record hold the only discretion in the whole system?"

Bringing Leo around to realize that, okay, maybe they should add something to the speech:

Leo (to Toby): "You taking notes?"

Toby: "Yeah."

Donna gets the brunt of the dirty work. After all the requests for pardons have been narrowed down to 36 prisoners, all model subjects who wouldn't seem to cause any uproar for having their sentences commuted, she hauls the files into Josh's office:

Josh (as Donna places the pardon case files on his desk): "Don't leave 'em here."

Donna: "You said you wanted to take a look."

Josh: "I said we wanted to take a look, and when I said we --"

Donna: "You meant me."

(She begins to pick up the files)

Josh: "I'll help you ..."

Donna: "Thanks."

Josh: "... move 'em."

Donna: "Right."

So she has to go over the files, she has to read all the stories of families torn apart, lives interrupted, people paying a high price for honest mistakes:

And it gets to her.

Donna: "These 36 people haven't been culled enough, out of thousands of applicants? Forget that they've all been imprisoned for at least five years."

Josh: "For committing crimes."

Donna: "Still, they submitted petitions to Justice that took at least two years to inch from desk to desk, none of them are violent - although by now I would be - none of them have priors - a lot of them, their judges spoke at their sentencing against the harshness of what they had to impose."

Josh: "Doesn't mean we stop scrutinizing."

Donna: "Scrutinize away. You tell me, do we toss out Daisy Aimes, mother of three with two jobs and a boyfriend who stored a kilo in her closet? She's done eight years and is facing eleven more, that's more than rapists and child molesters get. There's about fifteen Daisys in here. Do we pick three?"

Then, just to make things even more complicated, a couple who have been big donors to Vice President Russell stop by, not just to visit, but to beg for a pardon for the wife's son. Donna and the pardon lawyers hadn't made the connection because the last names were different, but Donovan Morrisey, who has spent seven years in Leavenworth already after sending LSD via FedEx as a high schooler, is Mrs. Kahler's son. Leo and the President are particularly concerned about the optics of issuing a pardon to such a big donor, right on the heels of vetoing the anti-kidnapping bill with the added mandatory sentencing minimums.

Donna, again, is the one asked to deliver the final plea to the President.

Donna: "I promised Mrs. Kahler I'd do my best."

President: "What did she say?"

Donna: "She said her son Donovan made a terrible mistake when he was still a teenager. Doesn't excuse anything, but her divorce was very hard on him. By the time he went to trial the shock of his arrest had given their family a wake-up call. Donovan had completed a drug treatment program, finished high school and been accepted to college. Unfortunately the guidelines prevented the judge from considering any of these things. She said after Donovan finished one year in prison - missed one birthday, one Christmas, one fly-fishing season - the other six years he spent in Leavenworth have been a frozen hell. Her words, a frozen hell. She wasn't, she ... (pause) She's someone who copes, but ... she said if it would make a difference, she'd get on her knees. She begged for your mercy. That's all."

(Just a heart-wrenching performance from Janel Moloney. She's so great.)

Donna leaves the room. Bartlet contemplates the issue. Finally, he decides:

President (haltingly): "Take him ... take Donovan off the list."

Leo: "You can pardon him in the spring. After the dust settles."

Our timeline arrives back at where we were at the beginning of the episode. We see some different angles of scenes, some added shots - and Donna receiving a telephone call that sends her on that fateful trip to CJ's office.

CJ: "What's wrong?"

Donna: "I just had a call from Anne Kahler, Donovan's sister. He killed himself."

CJ: "Who's Donovan?"

(Oh, that's right, CJ wasn't in on any of the pardon discussions, she doesn't know the story.)

Do they tell the President before he goes to the Capitol for the State of the Union, do they risk throwing him off his game? Well, of course they have to ... but as the staffers wait outside the Oval, the sight of Leo and the Bartlets happily chatting, unaware of the tragedy that's just happened, causes an upset Donna to turn and run. CJ sends Josh after her.

Of course it's Josh, we've been watching Josh and Donna for almost five years now, we know the bond they have, the devotion they carry for each other, even if their love remains unspoken for the time being. Josh catches up to her outside, and it's a touching conversation that speaks volumes:

Josh: "It's not stupid. You met them. They got to you."

Donna: "I need to learn how to not be so ... how to keep things at arm's length."

Josh (quietly): "I hope not."

And after the speech, another triumphant Bartlet State of the Union (it seems), the President knows Donna needs to be acknowledged, recognized, seen for all she's done over the past few weeks, even though tragedy struck right at the end. As she guides the special guests into the Mural Room and introduces the President to them, he's talking to Donna just as much as he is Candy, the prisoner whose sentence he'd commuted earlier that day.

Candy: "I can never repay you."

President: "Oh, yes, you can. You got the second chance you deserve, but it's also a heck of a burden. If you screw up again you don't just hurt yourself and your family - you damage me and worse, you hurt all those prisoners still hoping for the fair shake most of them won't get. (pause) Am I right, Donna?"

Donna: "Yes, Mr. President."

President: "Ms. Holmes, you need to take your life in your hands and make sure that none of those left behind are ever more deserving than you."

And as the President walks away, greeting the other special guests, the final shot gives us Donna, sad yet proud of an imperfect President who strives for better things.

Holmes: "Bless you all. It must be an honor to work for him."

Donna: "It is."

This episode gives us plenty to think about, lots to consider - but it's mainly a Donna episode, and I am totally here for it. No, Janel Moloney, it's not just Yo-Yo Ma who rules ... you rule.

Tales Of Interest!

- This is the latest West Wing State of the Union episode, which has been practically an annual holiday event for the series. This one doesn't really focus much on the speech or the reaction or the trappings around it, though ... and I do miss the guy who called out "Sam Seaborn, everybody!" in the ballroom in at least two previous SOTU episodes.

- January 20 (which we see on a title card at the start of the episode), was a Tuesday in 2004, and was in fact the actual day President George W. Bush delivered his State of the Union that year (six days after this episode aired).

- We find out a bit more about Ben, who's been calling CJ since Constituency Of One. Apparently he's a park ranger in Alaska (Carol says "Ben, of the 907 area code," which is Alaska, and also calls him "Ben of Glacier Bay" - Glacier Bay National Park is located right by the state capital, Juneau, in the southeastern part of the state).

- We get Rena back, hired by Toby as an assistant after she helped clean up trash in Shutdown, but what happened to Ginger? Even Margaret is the one handling Toby's travel arrangements instead of Ginger. And speaking of missing characters, where has Ryan Pierce been since Disaster Relief? Was he sent home for the shutdown and just never came back?

- Interesting little tidbit about the Oval Office - in Shutdown Speaker Haffley made mention of "Wyeth's intent" in the design of the Oval, meaning architect Nathan Wyeth who designed the room when the West Wing was expanded in 1909 under President Taft. In this episode when Charlie is showing Meeshell around, he says the Roosevelt Room was the President's office "until FDR decided he deserved some sunlight, and built the Oval." That is kinda true and kinda not - the Roosevelt Room was made the President' office under Teddy Roosevelt in 1902, but as we know, seven years later Taft had the original Oval Office built. But, to Meeshell's point ... FDR did indeed oversee the construction of a new Oval Office in the 1930s, in an entirely different part of the West Wing from Wyeth's and Taft's Oval, and that is the Oval Office still used today.

- We are in a fictional universe, so the writers can use any numbers they want, which is proven by President Bartlet's lament to Leo about the number of pardons by recent Presidents. He says, "Recent Presidents have averaged 40, 20, and seven pardons a year. Why'd we get so stingy?" Given that two of the recent Presidents he means would be Lassiter and Newman (as seen in The Stormy Present), and there are at least a couple of other fictional Presidents in the West Wing line, any numbers he uses will work in that world. In real life, Ronald Reagan averaged about 50 pardons per year (406 over eight years), George H. W. Bush averaged about 20 (just 77 in his one term), Bill Clinton was back up near 60 (459 in eight years), and George W. Bush (who was still in office at the time of this episode) pardoned 200 sentences over his eight years, or 25 per year.

- Here's a look at Gail's fishbowl for this episode. (There's a website that has tracked fishbowl appearances throughout the series, but somehow they skip this one, while also saying The Stormy Present fishbowl featured a flag-draped coffin ... I'm sorry, there's absolutely no way to make that claim from what we see on the TV screen.) This time it looks like a Post-It note and a red heart-shaped rock, which I'd infer relates to Ben's calls for CJ and Carol leaving messages.

- Why'd They Come Up With The Benign Prerogative?

President Bartlet says Alexander Hamilton called the power of the pardon "the benign prerogative." Indeed, in Federalist Paper 74 Hamilton wrote, "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed."

Quotes

Angela (convincing Charlie to meet up with Meeshell): "Don't cancel. Go late. A demanding job is a strong aphrodisiac."

Charlie: "Are you the devil?"

Angela: "It's folks who act like angels I worry about."

-----

President: "I can't sign a bill that toughens guidelines and ties judges' hands then turn around next month and advocate judicial discretion."

-----

Toby: "No, I'm serious, I say the President announces his veto on the eve of the State of the Union, next morning his pardons become Act Two ..."

Josh: "Of, respect for federal judges."

Toby: "And prelude to his trip to the Hill that night. Which now is more than hat-in-hand begging Congress for a laundry list of priorities, the State of the Union becomes a few words about his agenda from the President who, as you've seen, is a busy guy."

-----

Charlie: "CJ, with the press, did you ever trust a reporter?"

CJ: "Is this the beginning of a joke?"

Story threads, callbacks, and familiar faces (Hey, it's that guy!)

Gabrielle Union (10 Things I Hate About You, Bring It On, Deliver Us From Eva) appears as Meeshell, Charlie's love interest turned nemesis (sort of). Just don't call her Ms. Anders ...

The Washington Afro-American, the paper Meeshell writes for (and her family founded, we discover) is a real newspaper, founded in 1892.

Rena's back (Melissa Marsala)! We saw her in Shutdown, helping clean up the mess around the West Wing in non-professional attire while all the nonessential personnel were sent home. Now Toby has hired her as an assistant. He says "she compiled clippings at Energy" which still begs the question of why her job was considered "essential" and she wasn't sent home during the shutdown.

Joey Lucas (Marlee Matlin) returns. Joey first appeared in Take This Sabbath Day as a campaign manager, then as a pollster in 20 Hours In L.A., which also was the first time we saw a bit of romantic interest from Josh ("Gather ye rosebuds," Donna told him). She was last seen in Debate Camp. Matlin was pregnant with her fourth child, daughter Isabelle, when this episode was filmed (Isabelle was born in December, 2003).

The Secret Service agent who tells Charlie it's time to go at the end is Bradley James, who's been seen as Agent Donnie on and off ever since "Post Hoc, Ergo Propter Hoc." This is only his second appearance since 18th And Potomac, however, and he'll only be seen once more on the series.

The TV show Capitol Beat is seen once again. First mentioned in Pilot as the show where Josh popped off about Christian conservatives and nearly got fired, it has also been included in most of the other State of the Union episodes, particularly Bartlet's Third State Of The Union/The War At Home when it broadcast live from the White House.

We know Toby has been pushing for more responsibility in setting policy/directing the administration agenda since Han, and wanted Will to take over more of the speechwriting instead (like Sam used to do). Will's departure for the Vice President's office in Constituency Of One kinda set Toby up to not only set policy, but also write the damn thing himself.

CJ's former beau/current pursuer Ben was first brought up in Constituency Of One (she lived with him for six months, but they tend to get on each other's nerves after a while).

The President's moral dilemmas with pardons/commutations was previously depicted in Take This Sabbath Day; the ethical/political concerns with mandatory sentencing minimums was also a major plotline of (duh) Mandatory Minimums.

President Bartlet is seen wearing Notre Dame apparel not once but twice. Martin Sheen made it a requirement before taking the role that Bartlet be a Catholic and a graduate of Notre Dame.

Abbey's insistence on Leo coming up to the Bartlet home in New Hampshire over the holiday weekend - even skipping out on Jenny's wedding! - must mean she's over angrily blaming him for Zoey's kidnapping, which we saw in Jefferson Lives ("For God's sake, don't ask me to trust you").

Charlie's question to CJ ("Did you ever trust a reporter?") and her response ("Is this the beginning of a joke?") seems to ignore completely the relationship CJ had with Danny Concannon. Considering Danny disappeared for a couple of years after The Portland Trip in Season 2, then returned with the scoop about American involvement in the assassination of Shareef in Season 4's Holy Night before disappearing again after 7A WF 83429, maybe CJ has just forgotten about Danny entirely (although as I said, the last time we saw him in the press room was less than a year prior to this episode, in the spring of 2003). Naturally it's all the phone calls from Gentle Ben going straight to her head, too.

Charlie mentions to Angela that he had to cancel on Meeshell Sunday because of "an attempted coup in Saudi Arabia" - we saw a pro-democracy uprising in that country in the previous episode, The Stormy Present, but considering Charlie was on Air Force One with the President traveling to President Lassiter's funeral, he must not have meant that event. Things seem a bit unsettled in Saudi Arabia, I guess.

Angela makes a direct reference to Charlie and Zoey's dating in the past. The two met in The Crackpots And These Women, began dating in Lord John Marbury, were the target of white supremacist assassins in What Kind Of Day Has It Been/In The Shadow Of Two Gunmen, and broke up sometime between The Midterms and Holy Night, when we saw Zoey was dating Jean-Paul (that jerk).

Just an odd little oddity of a connection: while the big overall themes of sentencing guidelines, pardons, and mandatory minimums are obvious reflections of the prior episodes Take This Sabbath Day and Mandatory Minimums, those entries also have a connection regarding this episode's humorous quick take on Josh's possible romantic interest in Joey Lucas. Joey's first appearance on the series came in Take This Sabbath Day; she also set up temporary shop in the White House in Mandatory Minimums, flustering Josh a little who wore his "Tuesday suit" to impress her and gifted her with a White House mug.

DC location shots

None.

They Do Exist! It's The Real Person, or Thing

Carol calls Ben "Gentle Ben," a reference to the novel and TV show of the 1960s.

William Shakespeare gets mentioned, as well as Joey "singing" "Oh, What A Beautiful Mornin'" from the musical Oklahoma!

Josh brings up the Pillsbury Doughboy.

Jed and Abbey leave early from the opera Turandot, and Jed throws in Puccini's name as well.

Gabriel Lessieur, the man Abbey is pushing Jed to pardon, is likely a stand-in for the real-life Leonard Peltier. President Bartlet says to Angela about Lessieur, "Not as sorry as you'll be if she (Abbey) gets started on what the FBI did or didn't do on that Indian reservation in 1977." CJ later says Lessieur was "convicted in the deaths of two FBI agents in North Dakota." Peltier was convicted in 1977 of killing two FBI agents on the Pine Ridge Indian Reservation in South Dakota two years earlier. Questions about the handling of evidence and other doubts about his conviction have come up over the years, particularly since a Freedom of Information Act request in 1980 revealed problems with the ballistics evidence, and ongoing calls for commutation of his sentence have been made on the White House since. As of this writing, Peltier remains in prison.

Likewise, Wallace Turner (the name Abbey brings up, someone who was pardoned by then-New Hampshire Governor Bartlet and apparently went on to murder after his pardon: Jed mentions "his victim's family") is likely meant to remind us of Willie Horton. Horton was a convicted murderer who, while not pardoned, was out of prison on a weekend furlough and committed assault, armed robbery, and rape. His furlough from a Massachusetts prison while Michael Dukakis was governor proved to be a major campaign issue in the 1988 Presidential election, which Dukakis lost to George H. W. Bush.

Toby's rant about Joey's polling tactics include Amana fridges (many of which are built just down the road from where I live) and Samsonite luggage.

In the mall scenes there's mention of Mrs. Fields (cookies).

Former Presidents Woodrow Wilson, Calvin Coolidge, and FDR come up in discussions about pardons, as well as Founding Father Alexander Hamilton. We also hear about Eugene Debs (President Harding commuted his sentence) and Jimmy Hoffa (had his sentence commuted by President Nixon).