White HouseOn December 22, 2020, President Donald Trump granted fifteen full pardons and commuted the sentences of five incarcerated individuals. The next day he did it again, granting twenty-six more pardons and three additional sentence commutations. While there is no doubt that a President has the constitutional authority to grant pardons and commute criminal sentences, the extent to which President Trump’s actions bypassed established guidelines and political norms is striking.

Of those granted clemency, several were politically connected to the President.   For instance, George Papadopoulos and Alex van der Zwaan received full pardons. Both men were members of the 2016 Trump campaign who pleaded guilty to making false statements to FBI officials in connection with the Mueller investigation into Russian interference in the 2016 election. The President’s former campaign chairman, Paul Manafort, was also pardoned of his financial crimes related to his work in Ukraine.

Former GOP Congressmen Duncan Hunter and Chris Collins were each pardoned of their convictions for misuse of campaign funds and insider trading, respectively. And President Trump commuted the sentence of former Rep. Steve Stockman, who was convicted of misuse of charitable funds.

The President pardoned Charles Kushner, real estate tycoon and the father of the President’s son-in-law, who had been convicted of filing false tax returns, witness intimidation, and making false statements to the Federal Election Commission. Four Blackwater security guards, who were involved in the 2007 Nisour Square Massacre in Baghdad, Iraq, also received pardons.

Several media outlets and lawmakers from both sides of the aisle have criticized the pardons and commutations. Rep. Adam Schiff (D-CA) said that the President did not grant the pardons “on the basis of repentance, restitution or the interests of justice, but to reward his friends and political allies.” Ben Sasse (R-NE) called the grants of clemency “rotten to the core.”

The New York Times reported that many of the pardons and commutations “bypassed the traditional Justice Department review process — more than half of the cases did not meet the department’s standards for consideration.”

While presidents have unfettered power to grant pardons and to commute sentences, there are procedures that those seeking such relief usually follow. Petitions for and grants of clemency are guided by 28 C.F.R. Part 1. Individuals typically apply for clemency through the Department of Justice’s Office of the Pardon Attorney. Individuals are typically not eligible to seek a full pardon until at least five years after their release from any form of confinement imposed as part of the sentence for their most recent criminal conviction. Under certain circumstances, DOJ may grant a waiver of the five-year wait requirement. Those seeking sentence commutations may submit petitions at any time, provided they have exhausted all other judicial and administrative avenues for relief.

For ordinary individuals, without direct ties to the President like some of those mentioned above, the clemency process begins by submitting a petition to the Pardon Attorney. The Pardon Attorney, under the supervision of the Deputy Attorney General, investigates and evaluates all clemency petitions. In general, the Pardon Attorney looks for demonstrated good conduct by a petitioner for a substantial period after conviction and service of a sentence.

The DOJ Justice Manual requires the Pardon Attorney to evaluate and consider the following five factors: 1) the petitioner’s post-conviction conduct, character, and reputation; 2) seriousness and relative recentness of the offense; 3) acceptance of responsibility, and atonement by the petitioner; 4) need for relief; and 5) official recommendations and reports from knowledgeable officials, such as the prosecuting attorneys and sentencing judges. The Pardon Attorney also considers factors such as disparity or undue severity of a sentence, the petitioner’s health and age, overall criminal record, and any service to the country.

After the Pardon Attorney has considered all relevant information, the office prepares a recommendation to the Deputy Attorney General. The Deputy Attorney General makes DOJ’s final determination on a petition and submits it to the White House for review by the President.

While the motive behind the President’s recent pardons and commutations may be subject to question, his executive clemency power is not.   The Constitution vests the President with the plenary “Power to grant Reprieves and Pardons for Offences against the United States.” The regulations that guide the typical application process “are advisory only and for the internal guidance of Department of Justice personnel.” “They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.”

As of the publication of this blogpost, President Trump has granted some form of clemency to 92 individuals. And if recent history is any indication, that number is only going to grow as President Trump continues to exercise that unconstrained authority.