Trump’s Circumvention of the Justice Department Clemency Process

President Trump in the Oval Office (Official White House Photo by Shealah Craighead). Last week, President Trump granted 49 pardons and commutations. This brings his total number of grants of clemency to 94. The new grants confirm a judgment we made six months ago (after Trump had granted clemency to 34 people): The clemency system is dominated by insider access to the president and almost exclusively serves the president’s personal and political goals and whims. We have significantly updated our chart of pardons and commutations in light of these new ones. The chart seeks to track patterns about the likely aims of and explanations for the president’s pardons—including whether they advance Trump’s political agenda, were influenced by a personal connection to Trump, had a connection to something Trump saw on television or were based on Trump’s admiration for a celebrity. Our judgments are based on (and thus are limited by) what is in news reports; our categorizations thus could shift based on additional reporting. While the general pattern of a corrupt pardon process is clear, judgments in individual cases are often qualitative and inferential. We have linked the stories on which we rested these judgments, and readers can decide for themselves. Here, we seek to drill down on the scale of backdoor access and self-serving pardons by looking at the extent to which Trump’s 94 pardons and commutations circumvented the standard pardon attorney process in the Justice Department. (Note that Trump has actually granted clemency to just 87 people. But he has granted clemency 94 times, sometimes to the same person in stages. For example, on July 10, he commuted Roger Stone’s 40-month prison sentence, two-year supervised release and $20,000 fine; and then, on Dec. 23 he issued Stone a full pardon.) It is not news that Trump has disregarded the role usually played by the Office of the pardon attorney. The Washington Post reported in Feb. 2020 that the White House advisors, led by Trump’s son-in-law Jared Kushner, had taken “more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process.” And the Post reported just last week that “rather than consult with the Justice Department’s pardon attorney for recommendations, Trump has routinely subverted the process and largely favored political allies and those who are well-connected for clemency.” Lots of evidence, detailed in columns D-G in our chart, indicates that personal contacts with Trump explain a lot of the pardons. What is missing, however, is a focused judgment in each of the 94 cases whether the pardon attorney weighed in with a positive recommendation. As we show below, and in Column C in the chart, in most cases there is concrete evidence—based on information in a public Justice Department database —that the pardon attorney did not recommend clemency, even before one looks at the evidence about the characteristics of the clemency grant and how it served Trump’s goals. The Justice Department Pardon Process Since the 19th century, the Justice Department has processed pardon requests and advised the president on various forms of clemency, including full pardons and sentence commutations. The current system is governed by Justice Department regulations and is managed by the department’s pardon attorney , who reports to the White House through the deputy attorney general. This process is not constitutionally compelled. Presidents have the authority to issue pardons without consulting the Justice Department (or anyone else). Many prior presidents have circumvented the pardon attorney or significantly altered the process—and there’s nothing necessarily wrong with that. This typically happens, for example, in clemency actions that relate to high-stakes presidential policy decisions, such as Gerald Ford’s pardon of Richard Nixon, or Barack Obama’s clemency initiative (which in part led the pardon attorney to resign ). Other times, the president circumvents the pardon attorney in more questionable contexts, such as many of Bill Clinton’s last-day self-serving pardons . The aim of the pardon attorney process is to regularize and standardize pardon considerations, especially for cases where the sentence is completed; to ensure integrity in the consideration of pardons; and to protect the White House from being inundated with pardon requests and from issuing unvetted and potentially controversial pardons. The regulations specify that “a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence.” The Justice Department has a strong (but waivable) presumption against even considering an application for pardon until “at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner.” In determining whether a petition for a pardon should be granted, the pardon attorney considers four factors: (1) outstanding post-conviction conduct, character and reputation; (2) the seriousness of the offense (with more serious offenses requiring longer waits, and special hesitation pardons for “ a prominent individual or notorious crime”); (3) the extent to which petitioner has accepted responsibility for the crime, displayed remorse and sought atonement; and (4) the “purpose for which pardon is sought may influence disposition of the petition.” The process for vetting a pardon petition for favorable consideration is a lengthy one, and typically takes over a year and often several years. The FBI has to investigate and write a report on the case. The U.S. attorney in the district of conviction and the sentencing judge, and occasionally the assistant attorney general in charge of the Justice Department component responsible for the case, are consulted and they weigh in as well. “The views of the United States Attorney or Assistant Attorney General are given considerable weight in determining what recommendations the Department should make to the President,” according to the regulations. A similar process of consultation takes place with commutation petitions before the pardon attorney considers making a favorable recommendation. After receiving this input, the pardon attorney makes recommendations to the deputy attorney general. The petitions that the deputy approves are “presented for action to the President with a report and recommendation from the Department, and the substance of the recommendation by the United States Attorney or Assistant Attorney General is included in this report.” There are other layers of review. (We thank Margaret Love for guiding us on the intricacies of the pardon attorney office and process.) Many people think this Justice Department process is broken—that its criteria for clemency are misplaced or too demanding, and that the process takes far too long. Some criminal justice experts have applauded Trump for skirting the pardon attorney to grant clemency in at least a few instances. We take no position on these normative questions here; we simply use news reports and the known factors about the Justice Department process to assess which of Trump’s pardons likely were based on pardon attorney recommendations. Obviously, one might think that the Justice Department process is broken and also think that Trump’s insider method is unattractive as well. Assessing the Justice Department’s Involvement The Justice Department has a searchable database of all pardon or commutation petitions filed since 1989. Each petition is assigned a docket number. The date of the petition is not indicated, though the docket numbers are in chronological order. When a petition for clemency is filed with the pardon attorney, it is automatically and invariably entered into this database. If a case is not docketed in the database, then it has not been filed with the pardon attorney—and the pardon attorney thus could not have recommended clemency to the president in that case. Of 94 grants of clemency made during Trump’s tenure, 41 lacked a petition in the database (marked “never in database” on the chart). These include some of the most prominent and controversial grants of clemency, including those issued to Roger Stone , Paul Manafort , George Papadopoulos , Michael Flynn , Charles Kushner and the four Blackwater contractors —Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard. Persons in this category clearly were not recommended by the pardon attorney. This leaves 53 out of 94 cases to be explained. There are other cases in which the person granted clemency had a petition in the system, but that petition did not support the clemency granted. First, the person pardoned might have had a petition in the database that was marked denied, and then Trump subsequently granted a pardon without submission of a new petition. This is what happened, for example, with Patrick Nolan, whose petition for clemency was denied in 2008 , but who rece
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