Osler's Razor

           Donald Trump’s presidency ended with a spasm of pardoning, a hot mess of screwed-up virtue signaling, rewarding of dark loyalties, and fealty to celebrity. Yes, some valid commutations of sentence were sprinkled in, but the process used was a bag of garbage—and I say that as someone who has consistently argued that even bad clemencies aren’t so bad. Trump’s misuse of a tool for mercy threatens to set back the work of clemency advocates for a generation.

            Trump’s focus on favoritism and slapdash process are a serious break from over two centuries of clemency practice, exceeding even the recklessness of Bill Clinton. Some might argue that the use of clemency in a rush at the end of a president’s term is normal, but even that is wrong. In reality, the “grand tradition” of presidents waiting until they are almost out the door to most actively use the pardon power only goes back to Bill Clinton in 2001 (and to a lesser degree, his predecessor, George H.W. Bush). Prior to that, presidents granted clemency much more evenly over their complete term in office. According to DOJ statistics, Ronald Reagan’s biggest years for clemency were his second and third (out of eight), and Jimmy Carter’s second year was his most prolific. 

            Trump’s process, too, was typical of him, but not of the presidency. Like his immediate predecessors, Trump faced a broken clemency review systemenmeshed within the Department of Justice and saddled with redundant layers of bureaucracy and multiple conflicts of interest. Advocates (including myself and NYU Prof. Rachel Barkow) urged Jared Kushner at a 2018 White House meeting to sweep this away and implement a bipartisan review board, but that idea was rejected. Instead, Trump installed an ad hoc group of informal advisors led by Kushner which included former Florida Attorney General Pam Biondi, former Acting Attorney General Matthew Whitaker, and clemency recipient Alice Marie Johnson. They fed names to the President for consideration, separate from the still-extant DOJ review process. While this committee did in a way accomplish a key reform—taking the process out of the Department of Justice, which is deeply conflicted as the body that sought convictions and sentences being reviewed—it presented new problems.

            For those of us who represent clemency petitioners pro bono, this new process was a frustration. There were no rules, no standards, and no observable procedure. Occasionally, a member of the Trump inner circle would reach out, invariably requesting a “one-page summary” of a case they were investigating. With that being the only hope, I gave them the summaries—well aware of the impossibility of distilling an 80-page petition meaningfully into a single page. 

            And then there is the plethora of grants to cronies, friends, and fellow travelers who committed the kind of crimes (fraud, false statements) that Trump himself may end up being accused of.  While Trump is not blazing new ground with this, he has perfected the art. This is also a trend that only extends back to Clinton and George H.W. Bush (and, arguably, the Gerald Ford pardon of his predecessor, Richard Nixon). Clinton tarnished his legacy with a pardon for Marc Rich, and Bush raised ethical questions by pardoning some of those involved in the Iran-Contra scandal (a mess that also may have involved Bush).  

            Much more significant historically has been the remarkable uses of clemency to forgive opponents of the president. Perhaps most famously, George Washington granted pardons to some of the leaders of the Whisky Rebellion—an uprising he personally led the militia out to combat. Warren Harding, a largely unremarkable president, made history by pardoning Eugene V. Debs, a socialist firebrand who ran for president against Harding from prison in 1920 and won 3.5% of the vote. Even more striking was the commutation of a death sentence Harry Truman granted to Oscar Collazo in 1952. Collazo’s crime was a nearly-successful assassination attempt on Truman himself. But mercy to opponents was never Trump’s style.

            Joe Biden inherits a crisis, with over 14,000 petitions moldering away within the forgotten formal process. Biden must create a better process, and embrace a truer vision of mercy.

# posted by Mark Osler @ 1:00 AM