Dear Reader,

As a scholar who has written a great deal about clemency and the President’s pardon power over the past two decades, I can say with some authority that this month is the worst ever when it comes to the exercise of that power. It’s not just the fact that so many grants were troublesome on the merits, as Preet and Joyce and so many others have detailed. It’s also the blatant disregard by not one but two presidents for a fair process and for the people who played by the rules in seeking clemency relief. Throw in the fact that much of the public now seems to take for granted that this is acceptable, and you have the most miserable month for mercy.

It is not new for presidents to pardon friends, family, donors, or political allies who were not vetted through a regularized process designed to give everyone a fair shot without favoritism. For example, in his last days in office, Bill Clinton pardoned his brother, Roger, and Marc Rich, often referred to as the “fugitive financier” because he fled the country after being charged with evading $48 million in taxes and engaging in multiple counts of tax fraud. Rich’s ex-wife had donated more than a million dollars to Democrats and to the fund for the Clinton presidential library. Clinton was roundly criticized for doing so by Democrats and Republicans alike.

In the wake of the Clinton pardon scandal, subsequent presidents took care not to be seen as similarly compromised and partial in their clemency decisions. George W. Bush even revoked a pardon one day after giving it after he learned the recipient’s father was a Republican donor. President Barack Obama launched a clemency initiative that proactively sought to give grants to people who received sentences that would not be given today – a group with no connections to the president and that would typically be ignored by the clemency process. The petitions he granted were scrupulously analyzed by the Office of the Pardon Attorney, the division of the Department of Justice that is currently charged with reviewing applications for the president. If anything, President Obama was too cautious in his insistence on an individualized vetting process by the Department of Justice.

Because the Department is also responsible for prosecuting all federal criminal cases in the first place, it is not the ideal place for objective clemency review. Moreover, the current Pardon Attorney review process seeks the views of the U.S. Attorney’s Office that prosecuted the case. This is why leading clemency expert Mark Osler and I have long advocated for the creation of an advisory clemency board that is outside the Department to conduct the necessary individualized review and make recommendations to the president. In its ideal form, this body would be bipartisan and contain experts on rehabilitation and prison life (including formerly incarcerated people) to assess applicants’ claims about rehabilitation and their plans for reentry.

President Trump was unconcerned with objective review of any kind. Nor did he subscribe to the conventional view that preferential clemency grants would spell political disaster. That notion went out the window during Trump’s first term in office (as did so many pieces of conventional political wisdom). Whereas Clinton was excoriated for engaging in preferentialism in his clemency grants, Trump engaged in far more sweeping favoritism during his first term in office and voters just rewarded him with reelection.

The first Trump Administration saw pardons for a litany of his cronies, including Paul Manafort, Roger Stone, and Michael Flynn. He also pardoned people who publicly supported him, like Sheriff Joe Arpaio. Trump relieved Arpaio of a criminal contempt conviction for refusing to follow court orders that demanded he stop engaging in racial profiling as sheriff. Trump also granted clemency to members of the armed services who were Fox favorites even though the Defense Secretary at the time, Mark Esper, opposed pardons as setting a bad example. Trump listened to Fox, not Esper, and gave pardons to a man who killed two unarmed villagers in Afghanistan and another who murdered an Iraqi man after detaining and interrogating him without authorization.

Neither these grants nor most of Trump’s others were vetted beforehand to see if the people showed remorse, rehabilitation, or the kind of personal growth that would make recidivism unlikely or that would otherwise merit mercy. In fact, only 25 of Trump’s 238 clemency grants were scrutinized beforehand by the Office of the Pardon Attorney. Under the Pardon Attorney’s current guidelines, only people who have served their sentences and been crime-free for five years would be eligible for a pardon. Trump had no regard for those guidelines or the Pardon Attorney’s input. Instead, he made decisions on his own or at the urging of people (or the news network) that had his ear.

It is thus not surprising that many of his grantees engaged in subsequent criminal behavior after his grants of clemency. At least ten people have already been charged with or convicted of additional crimes since Trump granted them clemency just a few years ago. They committed crimes ranging from domestic violence to cyberstalking to fraud.

None of that mattered to Trump voters. Nor did the fact that Trump pledged to give clemency to participants in the January 6 insurrection. He never hid that was his intention. He said it was a day one priority. At times he hedged about whether he would give it to all of them, including those who violently assaulted law enforcement officers, but the hedging itself was a clue that it was on the table.

Trump from the beginning has tried to recast what actually happened that day and get people to disbelieve the violence they saw with their own eyes. He repeatedly referred to January 6 as a “day of love” and likened the imprisonment and jailing of the participants to the internment of people of Japanese descent during World War II.

He also repeatedly included himself as one of the participants by invoking the first-person plural pronoun “we” in talking about the events of the day. He falsely claimed, for instance, that “We didn’t have guns. The others had guns but we didn’t have guns.” That is why Jeff Toobin has described the mass pardons of January 6 participants as essentially a pardon of Trump himself.

Given Trump’s clemency record in his first term and his subsequent statements about the January 6 insurrectionists, no one can be surprised that Trump would pick up where he left off and engage in ad hoc grants based on his own whims, political calculations, and desire to reward loyalists.

Voters got what they bargained for when they reelected Trump (or did not bother to turn out to vote to stop him). They knew he did not use any kind of process to investigate people before granting clemency. He had a long record demonstrating that his use of clemency was not based on redemption or rehabilitation. He uses clemency as a reward for loyalty. No wonder he doesn’t use the services of the Pardon Attorney. If the only relevant metric to him is blind obedience to his wishes, he can be the judge of that, no outside reviewing body required.

If there is an element of surprise, it can only be about the speed with which he has acted. In addition to giving full pardons to the almost 1,600 people who had stormed the Capitol on his first day in office, Trump also made time to pardon Ross Ulbricht. Ulbricht was the founder of Silk Road, a marketplace on the dark web where people engaged in a variety of crimes including murder for hire, drug trafficking, and arms trading. Trump has also pardoned abortion protesters who forcibly pushed their way into a reproductive health clinic and then blocked people from entering and two police officers who were convicted of killing a Black man. That was all within Trump’s first five days of his second term.

The bigger surprise is that Joe Biden also showed little interest in a fair pardon process. Despite promising as part of the Biden-Sanders Unity Task Force during the 2020 campaign to create “an independent clemency board to ensure an appropriate, effective process for using clemency” along the lines of the one Mark Osler and I suggested, Biden took little interest in clemency once elected. He did nothing to reform the process and spent most of his time in office ignoring his pardon power. He had a historically low grant rate for a modern president leading up to the November election.

When Biden finally turned to clemency in the waning days of his time in office, it was too late to fix the process. He managed to issue some laudable grants in spite of the time pressure. In fact, he ended up doing most of what Mark Osler and I argued he should do given the limited time left when we wrote a September NY Times op-ed. He focused on categories of cases — commuting most of the federal death sentences to life imprisonment, allowing people already on home confinement under a Covid relief measure to stay out of prison, and commuting the sentences of almost 2,500 people convicted of nonviolent drug offenses to the amount of time those people would be given if they were sentenced today under revised drug laws.

What Biden did not announce, however, is that he had granted all the petitions that had arrived on his desk with positive recommendations from the Office of the Pardon Attorney. That was our top recommendation. We urged President Biden to “focus on the pending petitions filed by people who followed the rules and submitted them through official channels.” That is because a categorical approach, while valuable for clemency, is no substitute for also providing individualized review. There are more people who deserve mercy than those in broad categories. And because Biden did not create a clemency board outside of DOJ to advise him, that individualized review in the waning days of his office had to come from the Pardon Attorney. Any petition that emerged from that pro-prosecution gauntlet with a positive recommendation should have been easily granted.

Instead, Biden opted to create his own categories of relief and seemingly stopped there. To be sure, there was overlap with some of the petitions recommended by the Pardon Attorney. Of Biden’s 4,165 commutation grants, 1,118 had applied through the Pardon Attorney. Of the 80 pardons, 66 came through that process. But that means 72% of the grants came outside that process. And we will never know how many of the Pardon Attorney recommendations were left behind. We can hazard some guesses, based on the many meritorious cases we know still await relief.

What we know for sure is that the Biden family got the most individualized attention of all. In addition to going back on his promise not to pardon his son, Hunter, Biden also pre-emptively pardoned his siblings and their spouses.

Neither Trump nor Biden cared much about creating a process that worked for everyone convicted of a federal offense to get their cases considered. Both presidents just decided unilaterally where to grant relief. The substantive outcomes differed only because the two men have such different characters and moral compasses.

The broader point, however, is that our pardon process is a broken one if it rests on nothing more than presidential caprice. Only a president can fix this because the pardon power is conferred by the Constitution and is an unfettered one. Neither Congress nor the courts can save the day.

Ultimately, it is up to us, the voters, to select a leader who understands that this awesome power deserves a process suited to its ends that respects fundamental notions of fairness and equality. The majority of voters in the last election, however, decided otherwise. Whether we’d have fair and just pardons was on the ballot, and those voters showed no mercy.

Stay Informed,

Rachel