We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRUMP DOES SOMETHING RIGHT(?)
After all of the angst since November about a flurry of pardons and commutations to be issued by President Donald John Trump (and you cannot imagine my relief at knowing I will never have to type those words again) – including speculation that he would pardon his family, all of his close friends, the Capitol rioters and even himself – Trump issued the final long-awaited clemency list in the wee hours on his last day in office (and you cannot imagine my relief at typing those words).
The media predictably fixated on the of handful of longtime allies and well-connected celebrities, including his former chief strategist, Steve Bannon, and onetime fundraiser Elliott Broidy, on the list. But that should not obscure the fact that, in virtually his last exercise of Presidential power, Trump pretty much got it right.
The White House released the list of 143 pardons and commutations at 12:50 a.m., as – according to the Wall Street Journal – Trump’s deliberations over who should receive clemency stretched late into the last full day of his term. Bannon, much like Schroedinger’s cat, flitted onto and off of the pardon list, but finally was included, short-circuiting his federal trial scheduled for May. A few rappers, politicos and Trump loyalists made the list, but the real story was that 90% of those getting pardons and commutations were rather ordinary people.
Only 18 of those on the list – 13% – were supported by the Dept of Justice Office of Pardon Attorney. The balance were by an array of political leaders, criminal justice reformers and other allies of the president.
On Tuesday, the president was still calling advisers to ask them how he should proceed on certain pardons and waffled repeatedly over whether to grant one to Mr. Bannon, a person familiar with the conversations said.
At various points on Tuesday, advisers believed Mr. Bannon—who was charged in connection to a scheme to siphon money from a crowdfunding campaign for a border wall—wouldn’t get one. The White House in a statement said Mr. Bannon “has been an important leader in the conservative movement and is known for his political acumen.”
Don’t take my word for it: here’s the list of those pardoned (their crimes forgiven) or had sentences commuted (imprisonment reduced or terminated, but the conviction remains):
Trump has been widely criticized for using his clemency power to favor celebrities and political allies, including Michael Flynn, Paul Manafort, Roger Stone and former Maricopa County Sheriff Joe Arpaio. But he was praised for commuting the sentences of some prisoners serving long sentences for nonviolent drug offenses, like 63-year old Alice Johnson, who was doing life for a 1996 crack conspiracy. Her story (she was hardly the kingpin, but paid the price for not taking a deal) caught the attention of reality-TV star Kim Kardashian, who convinced Trump to commute her sentence. The move paid off for Trump: Johnson was a vocal supporter of the President after that (who could blame her), even speaking at the Republican convention last summer. Trump rewarded that by upgrading her commutation to a pardon. At the same time, Johnson advocated for clemency for people she knew in the system.
Before last week, Trump had pardoned or commuted the sentences of 44 people convicted of federal crimes —far fewer than any other president. To be sure, Trump isn’t the only president to pardon his friends and allies during his f
inal days in office. Former President Bill Clinton was criticized for including wealthy fugitive Marc Rich in his final batch of reprieves, after Rich’s wife donated generously to Clinton’s presidential library. An investigation later concluded that the pardon was sketchy but not quite illegal.
Experts argue that the erratic clemency process should be fundamentally reimagined, either by taking it out of the president’s hands altogether or at least by moving it out of the Department of Justice. This could speed up the review process and remove review from the people whose careers were made by convicting those seeking clemency. Advocates argues that clemency should be molded into a tool for redressing the harsh sentencing practices of the early Sentencing Guidelines days since 1989. The sentences, especially for drug offense, disproportionately sent minorities to prison for long stretches.
The New York Times reported that “advocates said they were hopeful that the Biden administration would be able to revamp the clemency process, and that the pardons approved by Mr. Trump would give the next administration some cover with conservatives in the future.”
The Biden administration said it would not comment on the Trump pardons.
The Wall Street Journal, Trump Issues 73 Pardons, Including to Ex-Aide Steve Bannon (January 20, 2021)
The New York Times, Trump’s final wave of pardons includes names pushed by criminal justice reform advocates (January 21, 2021)
The Marshall Project, Trump’s Pardons Show The Process Has Always Been Broken (January 19, 2021)
– Thomas L. Root