Does Trump even know a formal pardon process exists?
President Trump recently tweeted that he had the “absolute right” to pardon himself. Is he right? We’ll see. Regardless, the president indisputably has the power to grant federal clemency for others. And the president has not been shy about using this power, most recently commuting 63-year-old Alice Johnson’s life sentence for a nonviolent drug offense.
According to reports, Johnson’s path to clemency began when television celebrity Kim Kardashian West learned of her case from a video posted on social media. In May, West met Trump at the White House to lobby for Johnson’s release from prison. A week later, the president commuted her sentence. Today, she is at home in Memphis, Tenn.
Johnson now joins six others Trump has granted clemency, including former Arizona Sheriff Joe Arpaio (convicted of contempt of court), former Chief of Staff to Vice President Dick Cheney Scooter Libby (convicted of obstruction of justice, perjury and making false statements), and conservative commentator Dinesh D’Souza (convicted of campaign contribution fraud).
Trump’s approach to clemency has been unorthodox to say the least. According to the Washington Post, most of the president’s clemency decisions “are impulsive” and based on “seeing something on TV, reading something in a newspaper, [or] hearing from a friend or someone lobbying him personally.” In addition, Trump’s clemency orders are unusually early in his presidency. By contrast, former Presidents Clinton, Bush, and Obama granted no requests for clemency within their first two years in office.
Trump’s approach is also unique in another way: His indifference to the Office of the Pardon Attorney.
Established in 1894, the Office of the Pardon Attorney is responsible for assisting the president with exercising his constitutional clemency power. Under current regulations, those seeking clemency must file formal petitions to the pardon attorney. Individuals requesting a pardonmust usually wait five years after their release before filing. Others wishing to commute a sentence must first try all “other forms of judicial or administrative relief.”
Once a petition is received, the Department of Justice conducts an investigation. After it is concluded, the pardon attorney reviews all the relevant materials and evaluates the petition against a host of factors. From there, the he or she submits a recommendation to the attorney general who, in turn, reviews the materials and makes a final recommendation to the president.
At least that’s the way it normally works.
In the case of Arpaio, Libby, and D’Souza, however, all three were pardoned without input from the pardon attorney. For boxer Jack Johnson (originally convicted for traveling across state lines with a white woman for “immoral purposes”), who Trump granted a posthumous pardon in May, his petition was previously denied by the Harding administration. For Navy sailor Kristian Saucier (convicted for taking photos inside a nuclear submarine without authorization), his request was originally denied only to be reprocessed months later without explanation. Lastly, for Sholom Rubashkin (convicted of bank fraud and money laundering), the White House stated that Trump’s decision to commute his sentence was based on, not a recommendation from the pardon attorney, but from “Members of Congress and a broad cross-section of the legal community.”
Of course Trump is well within his right to offer federal clemency this way. Indeed, theregulations concerning the pardon attorney process are only advisory. However, ignoring the process offers at least two drawbacks. First, as law professor Steve Vladeck notes, through the pardon attorney, “the executive branch has created its own process for pardons in an effort to mitigate the prospect – or, at least, the specter – of abuse.” Without it, future clemency orders may be viewed, fairly or unfairly, as partisan or self-serving.
Second, Trump’s current method of granting clemency to those with either political or celebrity backing is antithetical to the egalitarian purpose of the clemency power. It further sends the wrong and discouraging message that, for clemency, only the famous or politically connected need apply.
So where does the Office of the Pardon Attorney go from here? The president’s current use of his clemency power appears to disregard the pardon attorney’s input, raising questions about the office’s relevance and future role. Nevertheless, thousands of clemency petitions remainpending, and the office receives hundreds more each year, so the work must continue. Some have called for significant reform, including the creation of a clemency board or delegating the “evaluation process to the vice president.” These may be fruitful reforms.
But in the meantime, for both political and fairness reasons, the president should revert to a more traditional clemency process – for some process is better than none at all.