Clemency

Trump White House Considering Limiting Justice Department Influence Over Pardons

Criminal justice reformers say federal prosecutors torpedoed clemency petitions in worthy cases.

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The Trump White House is reportedly considering overhauling the presidential pardon process and weakening the Justice Department's role in recommending grants or denials of petitions.

The Washington Post reported last Thursday that a group of White House staffers and criminal justice advocates, led by Trump son-in-law and senior White House adviser Jared Kushner, have been discussing how to revamp the pardon process and move it away from the Justice Department:

Several officials familiar with the matter said the White House has been discussing ways to revamp the clemency process for months, amid growing consensus that the role of the Justice Department should be minimized. The White House has been disappointed with the Justice Department's process, officials said. While the Justice Department has traditionally received clemency petitions, the new process involves direct submission of applicants to the White House Office of American Innovation, which is led by Kushner, according to people familiar with the matter.

Such a move would be welcomed by many clemency advocates, who say outsized influence by the Justice Department has led to the denial of clemency petitions filed by worthy inmates.

"Over the years the DOJ has controlled the process and made it way too bureaucratic," says Mark Holden, the former general counsel of Koch Industries and a prominent conservative criminal justice reform advocate. "While DOJ should be able to provide input into the decisions, it shouldn't have a stranglehold on the process so it shuts down or limits clemencies. Unfortunately that seems to be the case over the past several years with its multiple layers of bureaucracy."

In 2014, the Obama administration launched an unprecedented clemency initiative aimed at freeing non-violent federal drug offenders serving lengthy sentences. While the Obama administration eventually issued a historic 1,696 commutations, the White House still ultimately denied roughly 13,000 petitions.

New York University law school professor Rachel Barkow and Mark Osler, a former federal prosecutor and law professor at the University of St. Thomas, started a pop-up law clinic to help federal inmates prepare clemency petitions for the initiative.

The president has unilateral power to pardon or commute sentences, but normally the pardon process goes like this: Petitions are reviewed by a small and secretive office within the Justice Department, the Office of the Pardon Attorney. The pardon attorney's recommendations are then reviewed by the deputy attorney general, the second-in-command of the Justice Department. The deputy attorney general's final recommendations go to the Office of White House Counsel.

Barkow and Osler, along with many other criminal justice advocates, say it's a conflict of interest for federal prosecutors to exert so much influence over the clemency petitions of the people they put behind bars.

"There were a lot of cases where we were getting different results in similar cases, and it seemed to be because of prosecutor input," Osler says. "The first thing DOJ does in the pardon attorney's office is reach out to the local prosecutor, and give substantial weight to the view of that local prosecutor. Well, of course, that's the person who sought the sentence in the first place."

Among those whose clemency petitions were rejected was Alice Johnson, a grandmother sentenced to life in federal prison for drug conspiracy. Johnson had a spotless record in prison and had become a minister and mentor to countless other inmates.

"Why was Alice Johnson a 'no' under the Obama administration?" Barkow asks. "There were inexplicable 'nos.' I heard that in many of the cases, maybe most of the cases, they were explained by the prosecutor's office who brought the case saying that the grant shouldn't be given."

In 2016, U.S. Pardon Attorney Deborah Leff resigned. In her resignation letter, Leffer said she was boxed out of communications with the White House, never given resources promised by the Justice Department, and had her recommendations consistently overridden by then-Deputy Attorney General Sally Yates.

A 2018 report by the Justice Department Inspector General found the initiative was hamstrung by lack of resources, poor communication, and "philosophical differences" between Yates and Leff.

Trump commuted Johnson's sentence in 2018 after a personal appeal from reality megastar Kim Kardashian. Trump's reelection campaign also featured Johnson in a Super Bowl ad this year.

Johnson, in turn, reportedly urged the White House to grant clemency to Crystal Munoz, Tynice Hall, and Judith Negron—three women serving lengthy federal sentences for marijuana, cocaine, and medicare fraud charges, respectively. Trump commuted the three women's sentences in his most recent batch of pardons.

The Trump White House has largely ignored the pardon attorney's recommendations, instead focusing on high-profile cases that have caught the president's attention. Trump's first pardon, for instance, was granted to former Maricopa County Sheriff Joe Arpaio, who was convicted of criminal contempt by a federal judge.

While some criminal justice advocates welcome a weakening of the Justice Department's influence over the pardon process, they're also concerned about what a replacement will look like. Making pardons dependent on snagging the fleeting attention of the president is not a feasible solution for granting mercy to the thousands of federal inmates still serving sentences that Trump himself has declared unfair.

"My hope is that this is a step towards a rational and fair process," Osler says. "Obviously having a handful of advisors without resources and without access to the pardon attorney isn't a long term solution because you've got over 13,900 petitions pending that are piled up in the official system, and at some point you're going to have to deal with that."

The White House did not respond to a request for comment for this story.

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  1. Fucking fantastic.

  2. There’s always been something peculiar about the “Justice” department only consisting of prosecutors. I’ve seen various jokes about public defenders; what should they be called, the “UnJustice” department?

    1. Given the lack of support they get, public defenders should be called the “Just us” department.

  3. This would be a great thing. The President whomever he is can only act on the information in front of him. And this process ensures that DOJ controls that information. And DOJ does everything it can to ensure that clemency is only granted long after it would be meaningful and rarely even then. For example, DOJ will not even consider a request for a pardon until the person has completed their entire sentence. Now, what sense does that make? If someone is unjustly convicted of a crime, they should be pardoned immediately. But DOJ wants their pound of flesh.

    The criminal side of DOJ is a corrupt evil institution that needs to be burned to the ground and rebuilt from the ground up. Any policy that reduces their influence is a step in the right direction.

    1. Their job is to put people in prison for as long as they can. Of course they don’t want to let them out.

      1. Furthermore, granting a pardon often implies that the prosecution screwed up when they prosecuted the person – either they got the wrong guy, turned a non-crime into a crime, or charged for a much more serious crime than the case actually warranted. Giving the prosecutors control of the pardon process is a huge conflict of interest.

  4. Making pardons dependent on snagging the fleeting attention of the president is not a feasible solution for granting mercy to the thousands of federal inmates still serving sentences that Trump himself has declared unfair.

    But it seems to be more effective than the “normal” process.

    1. Right, I don’t see how it’s worse than making it dependent on the very people who try their hardest to ensure that convictions and sentences stand.

    2. Yes. Right now the process is no one gets a pardon or clemency unless the President wants to put it up for sale (see Mark Rich) or has a political ax to grind (see Obama pardoning PR terrorists and such).

      And the article says

      The White House has been disappointed with the Justice Department’s process, officials said. While the Justice Department has traditionally received clemency petitions, the new process involves direct submission of applicants to the White House Office of American Innovation, which is led by Kushner, according to people familiar with the matter.

      The plan seems to be to take it out of the hands of DOJ and give it to an office in the White House. That is not making the pardons subject to the fleeting attention of the President. That is putting new people in charge of processing the requests. Why the author of this article doesn’t understand that is a mystery.

  5. Another example of Dictator Drumpf taking power away from the people who should rightly possess it!

    1. WT???? Trump releases “the people” of life sentences for petty victimless crimes and your going to say that?? What’s your damage.

      1. I think that might have been intended ironically.

      2. It’s a Constitutional crisis!

        1. Impeachable!

    2. No one consulted Mr Vindman, excuse me, Lt Col. Vindman

      1. Unbelievable. A breach of protocol is a breach of justice.

  6. “Barkow and Osler, along with many other criminal justice advocates, say it’s a conflict of interest for federal prosecutors to exert so much influence over the clemency petitions of the people they put behind bars.”

    Duh! You think?

    Of course, this is yet another instance of the President interfering in the justicy justice process. Time for Impeachment: The Sequel.

  7. …the pardon process goes like this: Petitions are reviewed by a small and secretive office within the Justice Department, the Office of the Pardon Attorney. The pardon attorney’s recommendations are then reviewed by the deputy attorney general, the second-in-command of the Justice Department. The deputy attorney general’s final recommendations go to the Office of White House Counsel.

    Which one of those is Kim Kardashian?

    Whatever his personal reasons might have been for taking the cause, the much-derided Kushner might end up being the salvation of many.

    1. I have never understood what Kushner has done to make people hate him other than marrying Trump’s daughter. He seems to use his influence for very positive things as far as I can tell.

      1. I don’t have a problem with Kushner personally. I have an instinctive recoil at Kushner crafting policy in very much the same way I recoiled at the first wookie developing nutrition guidelines and school lunch programs.

        1. Yeah, funny how First Lady became a thing. I don’t know when the tradition started that she had to have some policy initiative.

          1. Perhaps it started with Lady Bird Johnson’s road-side beautification program. IIRC (I was just starting high school when the Johnson’s retired), this morphed from just cleaning up the trash to laws regulating billboards – laws which would be clearly unconstitutional if the Supreme Court hadn’t found a “commercial speech” exception to the 1st Amendment in _their_ copy of the Constitution.

  8. marijuana, cocaine, and medicare fraud charges

    Is one of these unlike the others?

  9. The Constirution vests the power to grant “pardons and reprieves” in the President, not in the Justice Department. Since its business is prosecuting crimes, it’s probably just as well that it should not be involved in pardoning them or commuting sentences. So I won’t complain about this. But there do need to be certain limits placed on the pardon power. It is absurd that a President could, in theory, pardon himself for a crime he committed in office. Or pardon his Vice President, or a cabinet secretary (didn’t George H.W. Bush actually do that?) for illegal acts committed “under color of law”. We need a Constitutional amendment preventing that sort of pardon. Then let the President grant pardons to private citizens for private actions however he thinks appropriate.

    1. Bush commuted the sentence of Cheney’s chief of staff who was convicted of lying to the FBI on complete bullshit evidence.

      And no, there should not be limits on the pardon power. If anything it isn’t used enough. If you don’t like how the President uses the power, you can vote him out of office. But, the pardon power is the only and ultimate check on the justice system. Understand, our justice system is process not fact based. You can be convicted of something you are entirely innocent of and there is no remedy provided your conviction was obtained using the proper process. “but I am innocent and the jury got it wrong’ is not a basis for appeal.

      Our system is broke in no small part because governors and the President have been delinquent in their duty to use their pardon and commutation power to undo injustices that occur in our criminal justice system.

      1. Bush also pardoned Casper Weinberger for lying to Congress. I think he was a cabinet member.

        People do sometimes get new trials, or have their convictions set aside, when new exculpatory evidence surfaces. Think of “The Innocence Project”. Yes, a bit more use of the pardon and commutation power might be welcome, provided it is not applied to officials who were reporting to the President when they committed their offenses. The rule of law dies if the President can tell people “Do this, even though it’s illegal. If necessary, I will give you a pardon for it.”

        1. No, the rule of law dies when the courts are able to convict people and there is no available remedy regardless of how unjust the result. Our entire justice system is built around the idea of executive pardon being the ultimate check on judicial tyranny. You don’t throw that away because the President might pardon some of his buddies. There are plenty of political checks on the President to prevent that power from being abused. Again, the problem is that the President doesn’t use the power enough not that he abuses it.

          You want a system of unchecked judicial tyranny. If the President can’t overrule a judge and jury no one can. Worse, you want a system whereby the most unaccountable cases are those done for political reasons. You think it is an abuse. In fact, the President pardoning and commuting his allies is what keeps politics from becoming criminalized and the criminal justice system from being used as a political weapon.

    2. The “Constitution” doesn’t do anything.
      No Treason
      The Constitution of No Authority
      by Lysander Spooner

      I.
      The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
      We, the people of the United States (that is, the people THEN EXISTING in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.
      It is plain, in the first place, that this language, AS AN AGREEMENT, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.

      1. What a bunch of hogwash….

        “do ordain and establish this Constitution !!!-FOR-!!! the United States of America.”

        Is this the United States of America???? Hmmmm…. I think so….

    3. The President should not be able to pardon himself. It is very debatable that the President has that authority because it has never been tested in court.

      It would be absurd to allow self pardons. Otherwise, get used to Presidents issuing themselves blanket pardons as they leave office.

  10. The biggest most needed “Justice Reform” would be congress passing any one of these —
    1997; Enumerated Powers Act H.R.292(105th) – Died in Congress
    2007; Enumerated Powers Act H.R.1359(110th) – Died in Congress
    2009; Enumerated Powers Act S.1319(111th) – Died in Congress
    2009; Enumerated Powers Act H.R.450(111th) – Died in Congress

    Requiring EVERY bill specifically state the Constitutional Authority granting the federal government the power to enforce the bill in the first place.

    Somehow; I’d like to think 90%+ of the Federal Justice system could be “cleaned” up by just keeping its power within it’s own job description.

  11. If anybody should be aware of what a hoax the “justice system” is it’s Trump. He needs to empty the federal prisons, hand those leaving a $50,000 check, and let nature take it’s course.

  12. Where are the usual complaints about too much power in the president’s hands? [snicker]

    1. Maybe it’s an expressly-granted constitutional power? [snort, giggle]

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  15. So, any bets on if the media tries to make this the next “big scandal” with Trump’s “never before seen attempts to hurt hard-working government officials” by taking power away from them?

    And good on him. We should try pushing for Ross Ulbricht to get a presidential pardon.

    1. That’s a sucker’s bet.

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