We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NAVIGATING CLEMENCY IN THE ERA OF TRUMP II
In a long New York Times magazine article, former federal prosecutor Jeffrey Toobin provides some lesser-known facts about President Trump’s clemency process, which he describes as a “quasi-royal quasi-selling of indulgences” that “has created an extraordinary free-for-all as supplicants try to make their cases in any way they can.”
What has emerged is what the article calls “a sort of common law of Trump pardons, as those who pay attention learn how to argue and to whom.”
(“Clemency” is a catchall term that includes pardons, which invalidate a criminal conviction, and commutations, which free a recipient from prison but leave intact the conviction.)
Changes in the Dept of Justice Office of Pardon Attorney (OPA) website have obscured the number of pending clemency applications, but The Times reports that a tally by Elizabeth G. Oyer, who was Pardon Attorney during the Biden administration, shows more than 20,000 clemency requests are pending now. This compares with about 5,000 at the end of the Biden term and eclipses the 18,000 on file at the end of Biden’s first year in office.
The Trump clemency process is a departure from tradition. Prior to 2025, people seeking a pardon or commutation would submit written applications to the OPA, typically an apolitical appointee. For commutations, OPA would consult with some or all of the Bureau of Prisons, the US Attorney’s Office that prosecuted the case, the judge that sentenced the petitioner, the victim, and people supporting the petition. Applications that made the cut would be sent to the White House, where a group of staff members would review the petitions. Their views were then conveyed to the president, who makes the final decision.
Pardons traditionally were not considered until the applicant had been out of prison for at least five years. Even now, OPA’s pardon application specifies that pardons are only for people who have completed their sentences. Nevertheless, favored people are being pardoned right out of active prison sentences. In some cases, pardons are granted before trials have occurred or sentences have even begun.
Toobin, author of the February 11, 2025, book, The Pardon: The Politics of Presidential Mercy, identifies the people reviewing clemency applications in the White House as While House counsel David Warrington, his deputy Sean Hayes, and White House chief of staff Susie Wiles. “The president is going to take Susie’s advice over David’s every time,” Toobin quotes a lawyer for a successful pardon applicant as having said. “David has taken the position of trying to be no-drama. He doesn’t want to cause problems, and the knives have not come out for him because he goes about his business that way.”
Trump’s Pardon Attorney, Ed Martin, has no significant criminal law experience to speak of, a fact that didn’t keep the President from nominating him to be US Attorney for the District of Columbia, one of the two highest-profile US Attorney slots in the nation. However, Martin represented a number of January 6, 2021, Capitol rioters, and his “views and conduct were so extreme that he was unconfirmable for the permanent post, even in the Republican-controlled Senate,” as Toobin put it.
Trump then named Martin Pardon Attorney, where Martin explained his clemency recommendations in a social media post as being “No MAGA left behind.” One of the first pardon applications Martin pushed through was of a longtime supporter and former Virginia sheriff named Scott Jenkins, who got a full pardon last Memorial Day, 24 hours before he was to self-surrender to serve a 120-month sentence for a federal bribery conspiracy conviction.
New York magazine reported in February that Martin is uninterested in the Pardon Attorney position and apparently appears at the office about once a week. “He’s just not there that much,” the staffer said.
Trump created a White House position known as the pardon czar, to which he appointed Alice Marie Johnson in February 2025. During Trump’s first term, he granted clemency to Johnson for her 1996 crack conspiracy life sentence after Kim Kardashian lobbied him for the commutation. Trump later made it a full pardon when Johnson spoke in support of his candidacy at the 2020 Republican National Convention.
Johnson has said that as pardon czar, she looks for other federal inmates who were punished in a similarly excessive way and recommends them to the president for clemency. Toobin said, “To date, Johnson’s influence seems limited. Since 2016, Trump has pardoned dozens of people convicted of white-collar crimes like fraud, but few who were, like Johnson herself, low-level participants in narcotics conspiracies.”
So how to go about clemency in the Trump era? Political influence, large contributions to Trump-backed political action committees, or even knowing the right people, all help. But for the vast majority of the 20,000 “pardon seekers, then, the question became which of the two — Martin or Johnson — offered the best route for success. According to people who have engaged in the process, the answer appears clear: neither. ‘The safe thing to do is go through the formal application process… You file the papers with Ed Martin’s office, and you make sure Alice Johnson knows it’s there. But they don’t have the power to deliver anything. They can give you a sense of how things stand, but they are not deciders.’”
In any given case, Toobin concludes, “the chaotic structure of the Trump White House might produce a different answer. Indeed, according to people who have been involved in the process, there is often a desperate search for ties, however tenuous, to any of the leading players. ‘Everyone knows Trump often listens to the last person who talked to him,” a consultant for a pardon seeker said. “So the goal is to get to as many people in the room when he’s thinking about pardons.’”
Last fall, Trump pardoned Changpeng Zhao, founder of crypto-currency network Binance. Binance has been a crucial backer of the Trump family’s crypto venture, World Liberty Financial, which has earned the Trumps at least $1.2 billion since 2024. However, last week, the Wall Street Journal reported in the runup to the current Iran conflict, Binance “made $850 million in transactions over two years” for Iran to collect on the sale of sanctioned oil.
The New York Times, How to Get a Pardon in Trump’s Washington (May 22, 2026)
DOJ, Pardon Application
Toobin, Jeffrey, The Pardon: The Politics of Presidential Mercy (February 11, 2025)
New York magazine, Trump’s Pardon Office Is ‘Totally Decimated’ The team has been virtually replaced by highly paid lobbyists and friends of the president. (February 27, 2026)
Wall Street Journal, Iran Moved Billions Through Binance to Fund Regime – Continuing Into This Month (May 21, 2026)
~ Thomas L. Root