President Donald Trump has revolutionized the pardon process during his second term in office, constitutional experts say, setting in place a system that seeks to clear people he believes have been unfairly targeted by the justice system.
There are two primary ways to grant pardons: The traditional system, stretching back to the 1890s, is a lengthy process that goes through the Department of Justice’s Office of the Pardon Attorney. A second method, historically used only rarely, allows the president to bypass the yearslong process, swiftly clearing people who have been brought to his attention and possibly enabling those with access to the administration to reach his ear and pitch him for a pardon.
Trump has taken an “unprecedented” approach to the pardon process by relying on the direct method to a novel degree, leaning on a team of “very different sorts of people” to hand out “very different pardons,” Brian Kalt, a law professor at the Michigan State University College of Law, said during an interview.
The constitutional specialist also pointed to Trump’s move to create the position of the first-ever “pardon czar” through Alice Johnson as a sign that the president is selecting unconventional partners to help him transform the process.
“Trump has used that direct-to-the-president approach much more and much earlier than other presidents in recent history,” Kalt said. “He does want people who understand giving very different sorts of pardons and very different sorts of people doing the legwork for him, not your run-of-the-mill Office of the Pardon Attorney. His partners look very different.”
The process
The method traditionally used to grant pardons goes through the DOJ.
People can apply for clemency through the DOJ’s Office of the Pardon Attorney. Legal scholars told the Washington Examiner that the department has a list of criteria that it considers when granting pardons or commutations, including typically waiting until up to five years have elapsed after the person has been released from prison to ensure they have undergone successful rehabilitation and expressed remorse for their crimes.
The application triggers an investigation from the FBI for a background check. If applicants pass scrutiny, DOJ lawyers may make a recommendation to the pardon attorney, who then sends the recommendation to the deputy attorney general, who may choose to send it over to the White House counsel.
The pardon recommendation goes through a similar process in the White House counsel’s office before it finally gets sent to the president.
However, the president plays a personal role in granting clemency due to sweeping pardoning powers endowed by the Constitution.
Since the Clinton years, it has become more common for people to use access to the White House or administration contacts to skip the lengthy undertaking in favor of taking their case directly to the president or White House counsel, Paul Larkin, who formerly worked at the DOJ as the assistant to the solicitor general and has argued cases before the Supreme Court, said.
“As a result, there were, there are a great many instances where the pardon attorney hasn’t played any role in the process whatsoever,” he added.
Kalt argued that Trump has broken tradition in his move by how often he has utilized the direct approach.
Past presidents used the Office of the Pardon of Attorney for “99% of the pardons,” he said.
But Trump has used the direct approach far more expansively than his predecessors, even when compared to his first term in office, Kalt added.
“He’s done it differently this time, sort of stepped it up,” he concluded.
One way the president has utilized the direct approach is by appointing the “pardon czar.” Johnson, who was herself granted clemency by Trump during his first term, has already sent well over 100 clemency and pardon recommendations to the White House, of which over 46 have been granted a second chance, she revealed last month.
Larkin said it’s unclear how much power Johnson has.
But presidents relish appointing czars like Johnson, he noted, because “it gives them an additional appointment power, and it’s an appointment power that doesn’t have to go through the advice and consent process as they do for numerous high-level political appointees in any administration.”
“So the president can appoint a John or Jane Doe to be a czar, and that person then just has whatever authority basically the president gives him or her,” Larkin, who is now a senior legal research fellow with the Heritage Foundation, said.
The people
Kalt views the types of people Trump has chosen to clear as one of the biggest differences in the president’s approach to the pardon power compared to that of recent predecessors.
“The first major difference is … bypassing the Department of Justice processing and doing these directly and early in this term, rather than waiting until the end,” Kalt said.
“But the second thing is just looking at the content of who’s being pardoned. This pattern — and the first term didn’t see it as much; we had hints of it — but this pattern of pardoning people who he sort of identifies with but analogizes the charges against them to the charges against him that he faced, where he can portray this as people are the victims of politically motivated prosecutions … that’s the approach that he’s taking, and it is very unusual when looking at the recent presidents and the use of the power,” Kalt added.
Most of those historically receiving commutations have served a significant part of their prison sentence. The traditional criteria that the Office of the Pardon Attorney uses limit pardons almost exclusively to people who have already served their sentences and have expressed remorse due to a viewpoint holding that presidents hold the authority to exonerate guilty people. However, Trump is issuing pardons to those convicted but have not even started their prison sentence.
Kalt suggested the changes have come because Trump is looking at the philosophy of pardoning from a different angle than the DOJ’s pardon office. The president offers pardons to people he believes are like him, innocent victims targeted by a politicized justice system.
“We’re not forgiving someone who’s guilty and remorseful. We’re protecting someone who is innocent and is being persecuted. That’s what the president is saying,” Kalt noted. “He has embraced that version of pardon power far more than his predecessors.
That type of approach describes the president’s move to pardon people like Scott Jenkins, a former Virginia sheriff whom Trump said had been “dragged through HELL by a Corrupt and Weaponized Biden DOD” and “persecuted by the Radical Left”; reality television couple Todd and Julie Chrisley, who the White House said were “fairly targeted and overly prosecuted by an unjust justice system”; former nursing home executive Paul Walczak, who argued that his mother’s support for Trump put a political target on his back; and Florida shark divers John Moore Jr. and Tanner Mansell, who contended that they were the victims of a broken justice system.
Mike Fox, a legal fellow in the Cato Institute’s Project on Criminal Justice, advocated Moore and Mansell with a congressional testimony on “overcriminalization.” Although they never submitted pardon requests to the DOJ, the two men somehow caught Trump’s eye — an “anomaly,” Fox said, that “should serve as a warrant to prosecutors not to file these charges because people are watching.”
“We’ve traditionally seen, not just in the Trump administration but in past administrations, a lot of the people that get pardons are people that are wealthy, they’re well connected, they’re former political officials,” Fox said. “John and Tanner were … men of modest means who were just good, hard-working people … [who] were victimized … and had one judge after another who looked the other way, and the system failed them.”
“The anomaly is that this got to the president’s attention and that someone did something about it,” he continued.
The scale
During his first term, Trump issued 238 pardons and commutations, a modest number compared to presidents such as Barack Obama, who issued an average of 963 pardons for each term he spent in the White House, the most of any president in history.
But by the end of the first day of his second term in office, Trump had eclipsed Obama’s record. On Jan. 20, the president granted a staggering amount of pardons and commutations to nearly 1,600 Jan. 6 defendants. And by June, Trump had granted upward of 1,700 acts of clemency, a staggering number compared to other two-term former presidents, including George W. Bush, who issued just over 200, Bill Clinton’s roughly 500, and Ronald Reagan, who issued under 475.
Dr. Sanford Levinson, with the University of Texas at Austin School of Law, agreed that Trump has revolutionized the pardon process.
“He’s transforming lots of things in the American government,” the law professor told the Washington Examiner.
The timing
Previous presidents have typically followed the pattern of issuing the bulk of their acts of clemency in their final months in office.
The practice is particularly useful for controversial pardons, with impeachment being the only measure lawmakers have to punish a president for pardons due to the expansive powers the Constitution affords occupants of the White House to grant them.
Former President Joe Biden issued his most controversial pardon on Jan. 20, the day he left the White House, when he reneged on his promise not to exonerate his son, Hunter.
Obama followed the same pattern of last-minute pardons, granting the majority of his pardons and commutations during his last six months in office.
Trump threw such timing to the wind, following the opposite tactic of granting his most controversial pardons on the very day he assumed office this year.
At least 1,583 Jan. 6 “hostages” were exonerated on Jan. 20, sparking intense criticism from Democrats that “insurrectionists” were set free. Trump’s move to issue mass clemency to nearly all of the Jan. 6 defendants during his first day in office fulfilled a promise he made on the campaign trail.
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“It’s a good thing when presidents do them in the middle of the term or campaign about that rather than waiting until they’re slinking out the door,” Kalt said. “It’s definitely something that Trump has done differently.”
“A lot of presidents will leave those controversial pardons till the end because they’re controversial and they don’t want to pay a political price, so they wait until they’re not politically accountable before giving them,” he continued. “President Trump has taken a different approach. I think that his relationship with political accountability is sort of unprecedented as well.”
