Trump’s Circumvention of the Justice Department Clemency Process

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 wh

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