Understanding the Rules of the Road for Pardon Applications

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Key Takeaways

  • The upcoming presidential election portends increased filing of pardon and clemency applications and increased grants—especially after the election.
  • Navigating the pardon process requires facility in addressing legal and political considerations from a variety of stakeholders, including the Department of Justice, the local U.S. Attorney’s Office, the White House, the court, and victims.
  • Recent pardons suggest that in the current Administration, meritorious applications with visibility in the White House stand a better chance of success.
With the U.S. presidential election less than 50 days away, pardon season is ramping up, and it is likely to be especially active after the election results. In our experience—one author served as a federal prosecutor, one served as a White House official, both partners have handled federal pardons, and all three have spent many years in private practice—a successful pardon application requires not only a strong argument on the merits, but also a deft handling of the relevant procedural and political considerations. Although most pardon applications are routed through various review processes within the Department of Justice, the power to grant clemency rests exclusively with the President—a fact enshrined in the Constitution and reaffirmed from the earliest days of our republic and by none other than Chief Justice John Marshall. And the available evidence suggests that strong White House engagement is especially important in the current Administration.

To be technical for a moment: Although there are meaningful differences among various clemency applications, for ease of reference and unless otherwise noted  we use the term “pardons”  to capture all executive clemency, whether by pardon, reprieve, commutation of sentence, or remission of fine. Also, in our dual federalist system of federal-state powers, the President’s pardon power extends only to federal criminal offenses; for state crimes, a state pardon must be granted by the governor, or in some states, an entity such as a parole board acting on the state’s behalf or in conjunction with the governor. And, it is worth noting, in all cases of clemency, pardon or otherwise, the executive grant confers only forgiveness; it does not itself accomplish erasure: a pardoned person’s conviction is not immediately overturned or deleted from the public record. Rather, a person seeking to remove a criminal record must also obtain expungement or sealing of the record,1 an area in which we have firsthand experience.
Pardons are often granted by a President preparing for transition of power to an incoming administration or by an incumbent emboldened by his election to a second term (particularly if the President carries a clear mandate). Thus, the uncertainties of the upcoming election generate considerable pressure (and opportunity), which historically has led to increased pardon activity at the tail end of the four-year election cycle. Potential pardon applicants navigating this thorny  process should understand that, like so much of life, timing matters.  A keen understanding of the political and legal challenges of the pardon process can be the difference between success and failure. It can be the difference between the executive’s forgiveness of a crime or reduction of a penalty versus the applicant’s criminal (and almost invariably felony) status remaining unchanged.
 
Article II, section 2, of the U.S. Constitution grants the pardon power solely to the Executive branch, providing that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Traditionally, as a matter of process, the invocation of this executive power involves both a legal review, through the Department of Justice and any applicable U.S. Attorney’s Office, as well as a political review, through the White House.  Although granting a pardon is ultimately a matter of executive power and discretion that rests exclusively with the Commander in Chief, applications have a greater likelihood of success where they can appeal to and obtain clearance from each of the many stakeholders in the pardon process, including the DOJ’s Office of the Pardon Attorney (the “Pardon Office”), the relevant U.S. Attorney’s Office, victims, the federal district court judge who presided over the case, and, of course, the White House.
 
In the ordinary course, an application for a pardon will be lodged with
the Pardon Office as part of the criminal justice process.  During the review of that application, the Pardon Office will consult a variety of interested parties, including the attorneys within the DOJ office responsible for obtaining the conviction, the district judge who oversaw the conviction and sentencing, and the victims of the crime for which the applicant was convicted.  This review will examine closely a large number of factors, including:      
  • the seriousness and relative recentness of the offense; 
  • the moral culpability of the applicant;
  • any ongoing effect on victims; 
  • the need for relief, including the purpose for which the pardon is sought, such as employment-related needs; 
  • post-conviction conduct, character, and reputation; 
  • post-conviction actions by the applicant demonstrating remorse, rehabilitation, and atonement; and  
  • official recommendations and reports, including the likely impact of favorable action in the district or nationally, particularly on current law enforcement priorities as well as the rehabilitative goals of the criminal justice system.

The Pardon Office’s review is governed by a series of regulations, which includes a five-year waiting period on applications from the date of conviction or release, as well as the requirement to notify victims, to name just two.2 However, these regulations “are advisory only” and “create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President” by the Constitution.3 Thus, while the Pardon Office will make a recommendation to the President to grant or deny the application, the President is in no way bound by that recommendation. Nor is the President obligated to wait for that recommendation before granting a pardon. After all, the Constitution’s Pardon Clause grants the President the sole power to issue pardons and reprieves for offenses against the United States. Indeed, as the federal courts have acknowledged, “a judge could not possibly win a confrontation with the executive branch over its refusal to prosecute, since the President has plenary power to pardon a federal offender, …—even before trial or conviction.”4

When the White House receives a pardon request—either an application in the first instance or a recommendation from the Pardon Office—it conducts its own review of the application with an eye toward political, rather than legal considerations. Naturally, because the President ultimately holds unreviewable discretion to grant pardons, the concerns that affect White House review understandably include timing and potential political ramifications. In previous administrations (whether Republican or Democrat), Presidents have been more likely to grant pardons of popular individuals or convictions resulting in a manifest miscarriage of justice before a significant election. Conversely, they have been more likely to pardon allies (or controversial figures) after the election is over. But timing speaks to the political process and the exercise of discretion; after all, the power to prosecute is the power to execute laws, and the refusal to prosecute is subsumed in the “greater power to pardon.”5   

Although the legal and political review regimes for pardon applications by the DOJ and the White House are distinct, they typically constitute a symphonic process with the ultimate call resting with the White House, and the President in particular. To that end, in some cases, the process may proceed in an ordinary, linear fashion from the DOJ to the White House. But in other cases, there may be more back-and-forth and give-and-take between the two. Thus, although the pardon process has, historically, originated with a formal application in the Pardon Office before proceeding to the White House, commentators have observed that, consistent with the Constitution’s Pardon Clause, the Trump Administration has been more willing to grant pardons based on direct requests to the White House. This has even included pardons that were not requested at all—for example, the President’s pardon of Alice Johnson (who was convicted in 1996 as a leader in a multi-million dollar cocaine trafficking organization in Memphis and sentenced to life imprisonment) in the middle of the Republican National Convention in August. As a result, the customary hurdles of DOJ and other government officials who might recommend denying a particular application may not be present for certain applications that originate with the White House. Indeed, of the 27 pardons issued by President Trump (not counting other forms of clemency), several are believed to have been pardoned without a formal application through the DOJ process.

The pace of applications and pardons are likely to increase in the coming months. At 27 pardons as of this writing,6 the frequency of the Trump Administration’s exercise of the pardon power is currently in line with the Obama Administration, which granted 22 pardons in its first four years.  An election win for the President could be expected to accelerate the rate of pardons, especially because President Trump has demonstrated that in many facets of the presidency, he has been willing to buck certain traditions and other perceived norms. Even a loss, however, can also be expected to lead to the same result: History teaches that a transfer of power usually leads to a significant uptick in pardons by the departing President. In the last few months of the Obama Administration, for example, the President granted 142 pardons, not counting other forms of clemency—more than the entire number of pardons he granted during the previous eight years.7 And although President Obama’s overall grant of clemency was between 5 and 6%, the majority of those grants occurred in just the last three months of his tenure.

Given these realities, whether the President is elected to a second term of office or not, potential pardon applicants should be mindful of these dynamics. And applicants seeking to navigate the pardon process should be guided by the sage words of Chief Justice John Marshall in the first case concerning the President’s pardoning power: “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”8 It is a “power [that] ha[s] been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance.” 9

Footnotes

1) See OLC Opinion, Whether a Presidential Pardon Expunges Judicial
and Executive Branch Records of a Crime (Aug. 11, 2006).
2) 28 C.F.R. §§ 1.2, 1.6.
3) 28 C.F.R. § 1.11.
4) In re United States, 345 F.3d 450, 454 (7th Cir. 2003) (citing Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866)).
5) In re Aiken Cty., 725 F.3d 255, 262-64 (D.C. Cir. 2013) (Kavanaugh, J.) (quoting Akhil Reed Amar, AMERICA’S CONSTITUTION: A BIOGRAPHY 179 (2005)).
6) See Office of the Pardon Attorney, Clemency Statistics, https://www.justice.gov/pardon/clemency-statistics.
7) See id.
8)United States v. Wilson, 32 U.S. (7 Pet.) 150, 160–61 (1833). 
9) Id.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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