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The Pardon Power’s a Wreck – Update for November 18, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARDON OUR PARDONS

Sobering news on the clemency front. To many, it seems that President Trump has exercised his pardon and commutation pen unlike any of his predecessors. Recent reports from Politico and ProPublica make it clear that the President’s beneficiaries have mostly been people with access to him or his inner circle.  Those petitioners who have followed rules set out by the Dept of Justice have been left out in the cold.

Trump has granted clemency to allies, donors and culture-war figures — as well as to people like him who were convicted of financial wrongdoing. A week ago, he granted pardons to 77 people, including Rudy Giuliani and other allies tied to Trump’s efforts to overturn the 2020 election. Those clemencies came on top of the commutation awarded last month to Republican George Santos, the disgraced former New York congressman found guilty of defrauding donors and lying to Congress. Trump freed Santos after he had served fewer than 3 months of his 87-year sentence

Politico said, “The pardons are the latest attempt by Trump to rewrite the history of his bid to seize a second term he didn’t win in 2020, an effort that culminated in the violent attack on the Capitol by a mob of his supporters who attempted to halt the transfer of power. Trump pardoned more than 1,000 of those who joined the mob within hours of his inauguration in January, including hundreds who assaulted police officers protecting the Capitol.”

For those who followed DOJ protocol, ProPublica reported, “the sense is growing that the process no longer matters; they’ve watched the public database of applicants swell with thousands of pending cases, while Trump grants pardons to people who never entered the system at all.”

In the 10 months since Trump took office, about 10,000 people have filed petitions for pardon or commutation, two-thirds of the total number of clemency applications (14,867) filed during the four years of the Biden presidency.

DOJ rules require that people seeking pardons wait five years after their release before applying, show good conduct and remorse, and file petitions through the Office of the Pardon Attorney. But in his second term, Trump has largely abandoned that process.

“It’s unfair to the little guy,” said Margaret Love, who served as pardon attorney from 1990 to 1997 under Presidents George H.W. Bush and Bill Clinton and now represents people in clemency cases. “I tell people, ‘Sorry, you don’t have a chance.’”

In Trump’s first term, fewer than half of his clemency recipients had applied through the Pardon Attorney. By one estimate, only 1 in 10 had been recommended by the OPA.

This term is worse. Now, only 10 of the roughly 1,600 people granted pardons (under 1%) had filed petitions with the Pardon Attorney, and even within that small group, some did not appear to meet DOJ’s standards and requirements.

St. John’s law professor Mark Osler, a national expert on federal clemency, wrote yesterday in Sentencing Matters Substack:

Imagine a classic Jaguar sedan, perhaps a 1972 XJ in British racing green — elegant, stunningly fast, unusual. It’s a joy to drive, wonderful to look at, and can come to define its owner in a way few cars can.

For those of us who care about federal clemency, watching President Donald Trump’s use of the pardon power in his second term has been like standing by as a driver uses that classic Jag to knock down an old house by slamming it into a wall again and again and again as a crowd gathers, aghast. It is a terrible use of a beautiful machine.

These are challenging times for individuals like me who believe that the pardon power is an integral part of the Constitution and a vital institution that embodies one of our primary national virtues: a belief in second chances. While clemency has been subjected to sharp criticism before (most recently, in the wake of Bill Clinton’s shady pardon of fugitive financier Marc Rich), the wave of criticism now — most often turning on President Trump’s grants to loyalists, celebrities, and business associates — has sometimes included outright calls to simply get rid of the federal pardon power.

I somehow doubt that anything is likely to improve before it worsens. For now, it is harder than ever for a federal prisoner not connected to this President by money, politics or some other transaction deemed beneficial to Trump to get noticed – let alone approved – for federal clemency.

ProPublica, How Trump Has Exploited Pardons and Clemency to Reward Allies and Supporters (November 12, 2025)

Politico, Trump pardons top allies who aided bid to subvert the 2020 election (November 10, 2025)

Sentencing Matters Substack, A Terrible Use of a Beautiful Machine (November 17, 2025)

~ Thomas L. Root

Clemency Pay-to-Play? – Update for October 30, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP CLEMENCY CIRCUS PAUSED AMID PROFITEERING CONCERNS

NBC reported last week that the White House was tightening up on clemency, just as the White House pardoned serial liar George Santos and Binance crypto executive Changpeng Zhao.

Sources told NBC News that White House chief of staff Susie Wiles, who has played a central role in reviewing pardons, became more outspoken about abuses last August after reports emerged that lobbyists and consultants were advertising themselves as offering access to Trump pardon authority for steep prices.

Those officials said Wiles pushed back hard against these efforts and tightened the process to distance it from those attempting to broker influences. While it’s legal to engage lobbyists on these issues, Wiles made it clear to those on the outside that she would not tolerate people trying to profit from the pardon process.

Reports in August by Bloomberg that two intermediaries seeking to cash in on pardons were floating a plan to another bitcoin exec to secure a presidential pardon for him in exchange for $30 million. The report set off alarms inside the White House, the two White House officials and two others familiar with the discussions told NBC News.

Some lobbyists had received proposals as high as $5 million to put clemency cases in front of Trump. Recently, an associate of former Sen. Bob Menendez, who is accused of bribing the senator with gold bars, paid $1 million to a Washington lobbyist with ties to Trump to help secure clemency.

Not that it matters that much. Trump last week pardoned Santos as a political favor to the outspoken Marjorie Taylor Greene (R-GA), who has recently turned critical of the President. The late-week pardon to Zhao acknowledged a man whose company, Binance, has also been a key supporter of the Trump family’s World Liberty Financial crypto venture, making billions.

The President said the pardon was because each man had been persecuted for political reasons.

What is pretty clear is that the President has no incentive or interest in granting pardons or commutations unless a financial or political gain is to be made. Today’s Wall Street Journal reports that as soon as Trump was elected a year ago, Zhao’s representatives began discussions with Trump allies, offering a deal for the Trump family in exchange for a pardon. Binance agreed with the Trumps’ start-up cryptocurrency venture, World Liberty Financial, that Binance could leverage into clemency for Zhao, the Journal reported, citing sources close to the transaction.

“This spring,” the Journal reports, “Binance took steps that catapulted the Trump family venture’s new stablecoin product, enhancing its credibility and pushing its market capitalization up from $127 million to over $2.1 billion.” Following that,

Trump granted Zhao a presidential pardon last week, “likely paving the way for the world’s largest crypto-trading platform to return to the U.S., from where it was banned after the company pleaded guilty in 2023 to violating anti-money-laundering rules.

While avoiding possibly fallacious post hoc, ergo propter hoc reasoning, the arrangement does leave garden-variety prisoners wondering what – other than some soups and honeybuns from next week’s commissary day – they might have to trade the Trumps for clemency.

NBC, White House tightens the clemency process as Trump resumes pardons (October 24, 2025)

Wall Street Journal, Trump Pardons Convicted Binance Founder (October 23, 2025)

Wall Street Journal, Binance Boosted Trump Family’s Crypto Company Ahead of Pardon for Its Billionaire Founder (October 30, 2025)

~ Thomas L. Root

Jailer Trump Sends Former Death Row Prisones to Supermax – Update for October 17, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PRESIDENT TRUMP MAKES BOP DESIGNATION DECISIONS

Among the last clemencies made by President Biden before leaving office were his commuting the sentences of 37 BOP death row inmates to life. Hours later, newly installed President Trump ordered that the life sentences of these men be made into what the Wall Street Journal called “a living hell.”

Based on the order Trump had Attorney General Pam Bondi issue, the BOP officials canceled plans to transfer most of the inmates to mainline prisons. Instead, Acting Deputy Attorney General Emil Bove III executed Bondi’s order, directing that all but a few prisoners requiring medical facilities be designated to ADMAX Florence, which the Wall Street Journal called “the harshest institution in the federal system.”

The Journal said that Aaron Reitz, then an assistant attorney general, led a roundtable with the families and said he was disappointed that the cells “have windows to see daylight.” He suggested that prison food was too good for these men. “I’ve got no problem with gruel.” he said. “If made right, it’s a nutritious all-in-one meal.” Later in an interview, Reitz said, “If you’re not going to be killed lawfully at the hands of the state, well, your prison sentence is going to be hard as hell.” 

The Journal reported that “while the president’s authority to grant clemency for federal crimes is virtually unfettered, the power to impose vengeance via prison assignments isn’t clear.”

Attorney General Pam Bondi said Trump wanted to “ensure that they spend the remainder of their lives in conditions consistent with the egregious crimes they committed.” David Fathi, director of the National Prison Project at the ACLU, which represents 21 of the inmates, said that none of the prisoners qualified for ADX placement under the BOP’s Program Statement 5100.08, Inmate Security Designation and Custody Classification Manual. ‘None of our plaintiffs were designated for ADX,” he said. “Under Attorney General Bondi, all of our plaintiffs have been slated for ADX, not because of a security risk but to inflict maximum suffering.”

“People should be very concerned about the president and attorney general’s disregard for the law in this case,” Fathi said. “Today, it may be people who are very unpopular. Tomorrow, it could be anybody.”

Wall Street Journal, Biden Spared 37 Killers From Execution. Trump Ordered Up a Lifetime of Torment (October 11, 2025)

Bureau of Prisons Program Statement 5100.08 CN-2, Inmate Security Designation and Custody Classification Manual (March 5, 2025)

~ Thomas L. Root

Trump Seeks Crime Reform… And It’s Not First Step Act 2.0, Either – Update for September 4, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GOOD NEWS AND BAD NEWS
McTrump the Crime Dog

President Trump said last Wednesday that Republican leaders in Congress were working with him on a “comprehensive crime bill” in what the New York Times called “his latest effort to push the issue of crime to the foreground of American politics.”

“It’s what our Country needs, and NOW!” Trump said on his Truth Social platform. “More to follow.” He said both House and Senate Republican leadership were working on the bill, but he offered no details.

A new crime bill would normally be a welcome opportunity to amend the First Step Act, especially to address the Federal Time Credit program. However, the bad news is that Trump does not appear to have a crime bill of that kind in mind.

Targeting what he calls “out of control” crime was central to Trump’s 2024 presidential campaign, although US crime is near its lowest level in decades. He has raised the issue in the last two months, with the deployment of National Guard in Washington DC to allegedly control crime there.

Politico reported last week that Trump’s latest comments have puzzled Republicans on Capitol Hill, who don’t know what “comprehensive” measure the president is talking about. Trump discussed extending his control over the DC police with House Speaker Mike Johnson (R-LA) last Tuesday. The House Oversight Committee, which has jurisdiction over DC issues, plans to advance some bills this month to crack down on juvenile crime, reform the education system, and unwind certain policing policies. However, Politico notes, “it’s the Judiciary Committee that would have to advance any crime-related bills that are national in scope.”

Trump ramrodded First Step through Congress in 2018. But running in 2024, Trump distanced himself from his own achievement, barely mentioning FSA on the campaign trail. In 2023, Florida’s governor and a rival presidential candidate, Ron DeSantis, attacked FSA as a “jailbreak bill” and pledged to repeal it.

And while Trump did appoint Alice Marie Johnson, a woman he pardoned in 2020, as pardon czar soon after returning to the White House, “he doesn’t appear eager,” the New York Times said last week, “to remind voters of his criminal justice reform measures… Instead, Trump is pushing for tougher sentencing, including against minors.”

“They’re children, but they’re criminals,” Trump said at last Tuesday’s marathon Cabinet meeting as he turned to his attorney general, Pam Bondi. “We are getting that changed, Pam, I hope, because you have 14-year-old kids that are evil, they’re sick, and they have to be put away.”

At the same meeting, Trump said he wants to see the death penalty imposed on every person convicted of murder in DC. “If somebody kills somebody in the capital, Washington, D.C., we’re going to be seeking the death penalty,” Trump said. “And that’s a very strong preventative.”

Trump appointed Fox News commentator Jeanine Pirro as US Attorney for the District of Columbia after even Republicans refused to confirm firebrand Ed Martin for the post. Pirro has talked a tough game in support of Trump’s theme that DC crime is out of control, demanding that her prosecutors bring the harshest charges allowable, even for minor infractions. Now, Salon reported this past weekend, “her aggressive posture is colliding with real-world constraints, exposing both her limitations and the fragility of politicized law enforcement.”

Pirro recently revealed that she is getting help from military lawyers, because her office is short 90 prosecutors and 60 investigators and paralegals. DC federal courts, which normally process about six new criminal cases per week, now face six or more cases per day, many stemming from low-level offenses that would’ve been diverted or even dismissed previously.

The increase in workload may be unique to DC, but the staffing is not. According to reports I have received, seasoned AUSAs and support staff have been resigning from US Attorneys’ offices around the country. One federal defense attorney told me last week that the quality of work and responsiveness of AUSAs in his district, the Southern District of Ohio, has fallen dramatically since January. “It’s hard to get a call back,” he said.

Salon said last week, “It’s clear that Pirro’s [charging] directives are unsustainable.” With so many people around the country heading for the exits, US attorneys’ offices may be unable to execute on a harsh new crime bill, even if one passes. That does little to address the bad news that an opportunity to reduce recidivism even more by tweaking FSA – and helping prisoners in the process – may be lost in the tough-on-nonexistent–crime posturing.

Writing in Sentencing Law and Policy last week, Ohio State University law professor Doug Berman observed that “[a] decade into the Trump era, I have learned not to take too literally or too seriously what Donald Trump says on social media.  But given that Prez Trump and his GOP allies are viewing crime fighting and crime policy as a winning political issue (and also that Democrats are struggling with a response… new political talk of a new “Comprehensive Crime Bill” makes lots of sense… But, of course, the devil is in the details when it comes to enacting big new federal legislation and in navigating the modern politics and policy-making of crime and punishment.  The First Step Act was truly the culmination of decades of federal criminal justice reform debates, and it is unclear what sets of criminal justice proposals will get enough support in Congress to get to the desk of the President. (I assume a crime bill would not find a way to be immune from the Senate filibuster, so at least 60 Senate [votes] would seem to be a necessity for any bill.)”

New York Times, Trump Says Republicans Are Working on a ‘Comprehensive’ Crime Bill (August 27, 2025)

Politico, Republicans scratch their heads over Trump’s ‘comprehensive’ crime bill (August 27, 2025)

New York Times, In Trump’s 2nd Term, More Incarcerations, Less Talk of Reform (August 27, 2025)

Washington Post, Trump wants expanded death penalty, longer control over police in D.C. (August 26, 2025)

Salon, Fox News star’s jump to the Trump administration is backfiring (August 31, 2025)

Sentencing Law and Policy, Is it too early to speculate about what could be in a new “Comprehensive Crime Bill”? (August 27, 2025)

~ Thomas L. Root

Pardon Industry Grinds On Although Trump’s Not Signing – Update for August 27, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARDON OUR MESS

Senior Dept of Justice officials were left scrambling to interpret sweeping clemency orders that former President Joe Biden approved for thousands of federal prisoners in his final days in office, and they criticized the White House for falsely portraying the releases as limited to “nonviolent” offenders, according to internal emails revealed last week.

The records show that former Associate Deputy Attorney General Bradley Weinsheimer raised alarms immediately after Biden issued three autopen-signed warrants on Jan. 17, covering nearly 2,500 federal prisoners.

In a January 18th message to the White House and the DOJ Pardon Attorney, Weinsheimer wrote that one warrant granting clemency for “offenses described to the Dept of Justice” was so vague it could not be lawfully carried out.

Weinsheimer suggested that Biden provide “a list as to each inmate listing the offenses that are covered by the commutation.” He said Biden needed to clarify the “meaning of the warrant language” so the DOJ could implement it “in the manner intended by the President.”

Weinsheimer also pushed back against White House statements that the clemency recipients were only “non-violent drug offenders,” according to the emails. “In communication about the commutations, the White House has described those who received commutations as people convicted of non-violent drug offenses,” Weinsheimer wrote. “I think you should stop saying that because it is untrue or at least misleading.”

The clemency list included a prisoner who had killed a mother and her 2-year-old child to protect his drug business, another whose enforcer tortured an informant with a butane torch, and a Gangster Disciples member implicated in multiple murders and kidnappings.

Despite Weinsheimer’s warning, the White House promoted the mass commutations as relief for “non-violent drug offenses” and as the largest clemency action ever.

Biden later said he approved broad categories of inmates, leaving details on how to apply those standards to staff. The revelations come amid multiple probes by the Trump administration into Biden’s use of his autopen – a machine that automatically signs the President’s name to documents – for key decisions.

Meanwhile, President Trump – who at the start of his second term was as busy as Biden ever was with a clemency pen– has not granted a pardon or commutation in almost three months.

Trump granted multiple pardons every month from January through May (and, of course, did a massive clemency grant on Inauguration Day for the January 6th rioters). You may remember that at the time, Trump’s pardon of 1,500 J6ers was described in news accounts as a “last-minute, rip-the-bandage-off decision.”  In fact, one White House advisor said that as Trump’s team wrestled with the issue, “Trump just said: ‘F -k it: Release ’em all.'”

However, despite rumors to the contrary, Trump has gone “full stop” on commutations and pardons since the end of last May.

At the time, media reports said that more clemency grants were expected “in the coming days.” So what happened?

Writing in Sentencing Law and Policy last week, Ohio State law professor Doug Berman wondered whether some of the pundit criticism around the last group of grants may have had some impact on how Trump is thinking about clemency action.

No one can be sure, but the pardon industry continues apace, with reports still being published about some people spending millions to buy access to the President for clemency. Last week, I had two prisoners separately say that the rumor mill reports a big commutation/pardon push in a month. I consider that to be myth. With a major push against supposed gangs rampaging in Washington, DC, Trump is not likely to think this is a good time to let some people out of prison.

Bloomberg Law, How a $30 Million Pardon Scheme Failed Before It Got to Trump (August 18, 2025)

New York Times, Flattery, Lobbyists and a Business Deal: Crypto’s Richest Man Campaigns for a Pardon (August 9, 2025)

Washington Examiner, Biden ignored DOJ warnings over legally flawed autopen pardons (August 19, 2025)

Axios, “F–k it: Release ’em all”: Why Trump embraced broad Jan. 6 pardons (January 22, 2025)

New York Post, Biden DOJ ripped White House over clemency grant to ‘non-violent offenders’: ‘Stop saying that because it is untrue’ (August 19, 2025)

~ Thomas L. Root

The Wild, Wild West Wing – Update for June 3, 2025

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TRUMP MANAGES TO MAKE CLEMENCY EVEN CRAZIER

wildwildwestwing250603The rolling waves of pardons and commutations emanating from the White House seem like good news to federal prisoners, who are filing clemency petitions to get in on the frenzy. Think Robinhood investors piling into a meme stock…

Over the past several weeks, President Donald Trump has issued a wave of pardons and sentence reductions to dozens of people. That’s good news. The bad news is that the recipients of Trump’s largesse are largely political allies, campaign donors, law enforcement officials, and Republican politicians.

I won’t try to recount them all, people from crooked cops to digital dope peddlers to gang bangers to celebrity fraudsters. Even George Floyd murderer Derek Chauvin and accused sex monster and rapper Sean ‘Diddy’ Combs are being talked about as candidates for Trumpian clemency largesse. Instead, I’ll look at the lessons to be derived from the freedom frenzy:

The three sure-fire ways to get clemency from this Administration are (1) to be a rabid Trump supporter, (2) to have millions to spend, or (3) to know someone who knows someone who knows someone in Trump’s inner circle.

clemencypitch180716For more than a century, career civil servants led the Dept of Justice Office of Pardon Attorney, evaluating clemency petitions based on legal and humanitarian criteria that were criticized for the glacial review pace, too much DOJ input, and opaque and sometimes inconsistent decisions. But now, newly appointed Pardon Attorney Ed Martin, a vigorous MAGA partisan, “has begun turning the office into a new pipeline for political allies to get their cases in front of Trump,” the Wall Street Journal reported last week.

Martin unabashedly described his pardon approach last week on X: “No MAGA left behind.”

Martin said he is working closely with Alice Johnson, the White House pardon czar whom Trump pardoned of drug offenses during his first term. That’s good news. The bad news is Martin’s approach: “The message should be clear that we’re sticking by people that do good things and the right things.”

MAGAhat250603Martin’s first pardon recommendation, adopted by Trump last week, was Scott Jenkins, the former sheriff of Culpeper County, Virginia. Jenkins was to report to prison last week after being convicted of selling no-show auxiliary sheriff’s deputy positions for over $75,000 in bribes. The evidence included videos of the sheriff accepting bags of cash and testimony of some of the people who bought the badges. He was sentenced to 120 months.

But as the Bulwark explained last week, “Jenkins was a rabidly anti-immigrant, pro-Trump sheriff who’d become a minor celebrity in MAGA world. Trump himself may not have known of him, but Ed Martin did… Martin celebrated his achievement just after the pardon: ‘Thank you, President Trump! I am thrilled that Sheriff Jenkins is the first pardon since I became your Pardon Attorney.’”

For those not connected to MAGA, seeking clemency “has become big business for lobbying and consulting firms close to the administration, with wealthy hopefuls willing to spend millions of dollars for help getting their case in front of the right people,” a lobbyist told NBC News. “From a lobbying perspective, pardons have gotten profitable.”

pardonsale210118Two people directly familiar with proposals to lobbying firms said they knew of a client who’d offered $5 million to help get a case to Trump. “Cozying up to a president’s allies or hiring lobbyists to gain access to clemency isn’t new,” NBC said. “But along with the price spike, what’s different now is that Trump is issuing pardons on a rolling basis — rather than most coming at the end of the administration.”

“It’s like the Wild West,” a Trump ally and lobbyist said. “You can basically charge whatever you want.”

But what about Alice Johnson, appointed as Pardon Czar to bring worthy clemency candidates to President Trump? Is that working?

Alice apparently was instrumental in bringing reality TV stars and celebrity whiners Todd and Julie Chrisley to Trump for full pardons of their bank and tax fraud convictions. Todd stayed in the headlines for the 24 months he served of his 12-year sentence by claiming, among other things, that FPC Pensacola was “literally” starving inmates to death, that the prisoners were forced to live in filth and eat contaminated food, and that he “feared for his life.”

“I know not only their stories, but I make sure that I’m selecting people who have either been rehabilitated, who pose no safety risk, and also we look at cases where there has been obvious weaponization against these individuals,” Alice Johnson told NewsNation Now. She was quoted in Eonline as saying “The celebrity part really didn’t play a role in this… These are everyday Americans who deserve a second chance,” she continued. “I’ve really been looking at those who pose no safety risk, don’t have victims of violent crimes. These people need to be returned to their families. They really get a chance to have a second shot at life.”

money170419A month ago, Trump pardoned Paul Walczak, a former nursing home executive sentenced to 18 months in prison and ordered to pay more than $4 million in restitution for tax crimes. The pardon came after Walczak’s mom, a GOP donor, Walczak’s pardon has received attended a $1-million-per-person fundraising dinner at Mar-a-Lago, the New York Times reported.

Even some of the people who are not rich or famous are lucky enough to get in on the act. An “everyday American” prisoner who was not a Chrisley but received clemency last week was serving a 50-year sentence for healthcare fraud. One of his co-defendants, however, had been Alice Johnson’s cellie at FCI Aliceville. Alice got her sprung in 2020. Five years later, the co-defendant lobbied Alice to get him out, too.

I helped him with his clemency petition a few years ago, a 100-page tome. No doubt he deserved clemency but no more or less than countless others whose conspiracies did not include someone who became Alice’s cellmate.

clemencytornado250603Ultimately, it’s depressing. Clemency has always been like a tornado tearing through a neighborhood, taking some lucky inmates seemingly at random while leaving others in their bunks to serve out their time. Now, there isn’t even a randomness factor anymore, a sense among prisoners that maybe, despite the ordinariness of their offense or their families’ quotidian circumstances, they may be the beneficiaries of a Presidential act of grace.

Now, it’s all about loyalty, wealth, connections.

We’re in a different clemency world than ever before, but the average federal inmate is further from fair consideration than ever.

CNN, ‘No MAGA left behind’: Trump’s pardons get even more political (May 28, 2025)

NBC, Trump pardons drive a big, burgeoning business for lobbyists (May 31, 2025)

Washington Post, Trump’s clemency spree extends to ex-gangster, rapper, former congressmen (May 29, 2025)

The Bulwark, Trump’s Dangerous Pardon Power (May 27, 2025)

Pensacola News Journal, Todd Chrisley served sentence at Pensacola Federal Prison Camp before pardon. What to know (May 28, 2025)

New York Times, Trump Pardoned Tax Cheat After Mother Attended $1 Million Dinner (May 27, 2025)

– Thomas L. Root

Getting Habeas Corpus ‘The Hell Out of Here’ – Update for May 13, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HABEAS MABEAS?

The Trump Administration continues to underscore its dedication to constitutional rights.

canceldueprocess250513A week ago, President Trump was asked on NBC’s Meet the Press whether US citizens and noncitizens alike had 5th Amendment due process rights. “I don’t know,” the President replied. “I’m not, I’m not a lawyer. I don’t know.”

Trump said he has “brilliant lawyers… and they are going to obviously follow what the Supreme Court said.” He complained that he was trying to deport “some of the worst, most dangerous people on Earth… I was elected to get them the hell out of here, and the courts are holding me from doing it.”

In other words, what a President perceives to be his mandate trumps (no pun intended) constitutional protections.

Last Friday, White House deputy chief of staff Stephen Miller said that the White House is “actively looking at” suspending habeas corpus as part of the administration’s immigration crackdown:

Well, the Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So, it’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.

alicewords250513Habeas corpus dates predates medieval English common law. It requires law enforcement to justify detaining people and produce those people before a judge so their cases can be reviewed. Federally, the right is exercised through 28 USC §§ 2241 and 2255. The Constitution’s Suspension Clause allows habeas corpus to be suspended only “in cases of rebellion or invasion [when] the public Safety may require it.”

Of course, the White House is suggesting that habeas corpus would be suspended only for immigrants here illegally. The problem is this: ICE sweeps up someone it says is an illegal immigrant. That person has no right to challenge the accusation before being whisked out of the country. My barber, a guy whose family has been in this country for at least 150 years, told me the other day that he didn’t see why illegal immigrants should have any constitutional protections whatsoever. My question to him was, “So what if ICE bursts into your shop and grabs you, alleging that you’re an illegal immigrant. What do you do then, if you can’t petition the court for a hearing at which ICE has to prove you’re not dyed-in-the-wool-American born-in-the-USA Bob the Barber?”

He thought about that but concluded, “No, they’d never do that.”

Right.

A suspension of habeas corpus would mean the Trump administration could detain people believed to be noncitizens without letting them challenge that detention or to deport noncitizen prisoners without giving them access to §§ 2241 or 2255 proceedings or to immigration courts.

dueprocess250513Habeas corpus has been suspended only four times in American history, and each time Congress has authorized the suspension. (In the case of the Civil War, President Limcoln suspended habeas corpus first, but Congress caught up with the Habeas Corpus Suspension Act, 12 Stat. 755 (1863), that authorized Lincoln’s suspension after the fact).

The National Constitution Center has observed that the Constitution is vague when it comes to “who in the government can suspend the writ of habeas corpus, but it is commonly believed that only Congress can do so,” Forbes said last week. “That means it’s likely Trump would face legal challenges if he decided to suspend the writ of habeas corpus on his own without Congress… but it remains to be seen how the courts could rule.”

habeasinvasion250513New York Times writer Maggie Haberman told CNN that the habeas corpus suspension proposal is an attempt to put the federal courts on notice: “Some of this might just be fear. A, it’s a way to intimidate the courts, which we have seen Trump and Stephen Miller do, a lot of, they’ve been criticizing judges routinely and repeatedly… It also might be to scare migrants and to get migrants to leave.”

Boston Globe, Trump, in a new interview, says he doesn’t know if he backs due process rights (May 4, 2025)

The Hill, White House ‘actively looking’ at suspending habeas corpus in immigration crackdown (May 9, 2025)

National Constitution Center, The Suspension Clause (2025)

Forbes, Stephen Miller Suggests Trump Administration Could Suspend Habeas Corpus To Detain Immigrants—Here’s What That Means (May 9, 2025)

The Hill, Haberman: Threat to nix habeas corpus just a way to ‘intimidate courts,’ ‘scare migrants’ (May 10, 2025)

– Thomas L. Root

A Nikola Truckload of Pardons – Update for May 9, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CLEMENCY BAZAAR

Trevor Milton knew how to do it. The founder of the electric-truck maker Nikola Corp. was convicted of wire fraud in 2022 for a promotional video that purported to show its electric semi rig hauling a trailer but was really a prototype without any electroc motors that Nikola had recorded rolling downhill.

nikola250509Trevor applied for a presidential pardon, arguing that his trial was flawed by a biased juror, lousy jury instructions, and prosecutors bringing charges in the wrong venue.

Complaining about an unfair prosecution hardly separated Trevor from thousands of other federal prisoners unhappy about their convictions. But Trevor had more: he pointed out that the prosecutors were the same people who had previously investigated some of President Trump’s allies. And he prepared for seeking a pardon by donating almost $1.7 million to support Trump’s 2024 presidential campaign and hired two lawyers well-known in conservative circles to push for his pardon.

“All the effort appeared to pay off,” Bloomberg Law reported this week, when Trevor got a phone call. “[A]fter 30 seconds on hold, President Donald Trump got on the line and told Milton that he was going to grant him a full pardon.” A week later, Trump called him again to report “’[i]t’s signed. You’re cleaner than a baby’s bottom, you’re cleaner than I am, Trevor,’ Milton recalled” to Bloomberg.

The president “is effectively and responsibly using his constitutional authority,” White House spokesman Harrison Fields explained. “Over the past four years, we have witnessed the weaponization of the justice system against the president’s allies. The president is committed to righting those wrongs and ending lawfare.”

clemencyjack161229Some critics suggest that Trump is not righting wrongs as much as running a pardon bazaar. Gregg Nunziata, former general counsel for Marco Rubio when he was a senator and now executive director for the Society for the Rule of Law, told Roll Call that Trump’s actions are “deeply un-American.”

“From the first days in office, there has been a pattern in pardons, in personnel, in the policies of using the powers of government to reward the president’s friends and allies and punish his perceived enemies,” Nunziata said. “That is the rule of a man out for his own interest and that is an assault on the full protection of the law and notions of fair play that our society, our country, depend on.”

As for its role, the Dept of Justice – which is without a Pardon Attorney since the firing of Elizabeth Oyer over the Mel Gibson gun flap two months ago – is “committed to timely and carefully reviewing” all clemency applications and making unbiased, consistent recommendations to the president, according to a DOJ statement.

Milton said he filed for clemency with the DOJ Pardon Attorney in January. Bloomberg reported, however, that the pardon didn’t follow the normal DOJ review process.

President Joe Biden set a record for granting clemency during his term, handing out over 4,000 commutations but only about 80 pardons. The commutations went overwhelmingly to federal prisoners and people who fell within classes of convictions – primarily for marijuana possession – or for CARES Act home confinees. Biden received widespread and bipartisan criticism for preemptively pardoning his family and allies to prevent Trump from going after them criminally.

obtaining-clemencyTrump, on the other hand, has set a presidential record for granting pardons – 1,590 and counting – starting with the January 6th Capitol rioters and then expanding to include white-collar defendants, cryptocurrency entrepreneurs, and anti-abortion activists. Pardon recipients include “numerous others who praised him or served as a witness against political rivals, including former Illinois Gov. Rod Blagojevich… He also pardoned Devon Archer and commuted the sentence of Jason Galanis, former business partners of Hunter Biden who served as witnesses in the House probe against the former president,” Roll Call reported yesterday.

Trump has even extended his pardon efforts beyond the limits of presidential authority (which does not extend to pardons for state offenses). He posted on TruthSocial Monday night that has directed DOJ “to take all necessary action to help secure the release” of Tina Peters, a former Colorado local election clerk in Colorado who was sentenced to nine years in state prison last fall for her role in a voting system data breach, a failed attempt to find voter fraud from the 2020 election.

Last March, DOJ filed a statement of interest in Peters’ pending 28 USC § 2254 habeas corpus case pending in US District Court for the District of Colorado. The post-conviction action seeks federal review of the constitutionality of her state conviction. The DOJ claims that it is concerned about Peters’ health and allege that “[r]easonable concerns have been raised about various aspects of Ms. Peters’ case.”

The pace of Trump’s pardons eclipses the president in second place, Bill Clinton (396 pardons in eight years) and in the process has fostered a “breakdown in the traditional vetting process for deciding who gets relief and supercharged a pardon economy unlike anything seen before,” as Bloomberg put it.

As a result, people who can afford it are spending big to get their applications in front of Trump, devoting tens of thousands of dollars to fees for attorneys, lobbyists and consultants on the pardon process.

money160118“There’s a huge level of interest,” said  Margaret Colgate Love, who served as the US Pardon Attorney during the Clinton years and now represents clemency clients. “People think Trump is going to do something for them.”

Presidents from both parties have long used their authority to circumvent official process and dole out pardons to friends and supporters. The constitution puts almost no limits on the practice, though leaders typically wait until the end of their tenure to award clemency. Trump has announced clemency grants on a dozen occasions since he took office three months ago.

All of this is not good news for the ordinary federal defendant, let alone a prisoner who can afford a donation of several Honeybuns and a couple of soups to the Trump campaign. “It seems like ordinary people who don’t have the resources to hire a lobbyist or well-connected lawyer and don’t have political connections and access to the White House front door are not being considered for clemency at all,” Oyer told Bloomberg.

A White House spokesman said Trump would work with the administration’s pardon czar, Alice Marie Johnson, to “continue to provide justice and redemption to countless deserving Americans.” Those with fat wallets and MAGA hats, that is.

Bloomberg Law, Lawyers Are Quoting $1 Million Fees to Get Pardons to Trump (May 7, 2025)

Roll Call, Pardons for friends, retribution for foes (May 7, 2025)

Democracy Docket, Trump Orders DOJ to ‘Secure the Release’ of Convicted Election Denier Tina Peters (May 6, 2025)

– Thomas L. Root

Escape From Alcatraz Fixation – Update for May 8, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

The Federal Bureau of Prisons is an agency with too little money, a $3 billion backlog of infrastructure repair needs, 4,000 fewer employees than needed, 143,000-plus prisoners in BOP facilities, and utterly chaotic management.

So what does the agency need more than anything right now? How about a mandate to rehab a prison with a 300-inmate capacity that was shut down for being too costly some 62 years ago.

intentions250508What a great idea! What could possibly go wrong?

In what the Associated Press called “a stunning directive from President Donald Trump,” the BOP was told in a Truth Social tweet last Sunday night to “REBUILD, AND OPEN ALCATRAZ!” — the legendary federal penitentiary that still stands on an island in San Francisco 62 years after it last imprisoned an inmate.

“Even as the Bureau of Prisons struggles with short staffing, chronic violence and crumbling infrastructure at its current facilities,” AP reported on Monday, “Trump is counting on the agency to fulfill his vision of rebooting the infamously inescapable prison known in movies and pop culture as ‘The Rock.’”

Alcatraz, the island located off the coast of San Francisco, was closed as a prison in 1963 and has since been turned into a museum run by the National Park Service, a tourist attraction generating about $6 million in revenue annually. The BOP closed the prison after determining that an estimated $3-5 million was needed just for restoration and maintenance work to keep the facility open. That’s $31-52 million in 2025 dollars, and that doesn’t account for deterioration over the past 62 years since closure.

The number also did not include daily operating costs. The BOP says Alcatraz was nearly three times more expensive to operate than other prisons. In 1962, BOP Director James Bennett said it was not an “economically sound policy” to invest millions of dollars to rehab Alcatraz. Housing an inmate in Alcatraz costs more than three times what it costs in Atlanta.

alcatraz250508On its website, the BOP says: “The major expense was caused by the physical isolation of the island – the exact reason islands have been used as prisons throughout history. This isolation meant that everything (food, supplies, water, fuel…) had to be brought to Alcatraz by boat. For example, the island had no source of fresh water, so nearly one million gallons of water had to be barged to the island each week.” Add to that staff costs: in San Francisco, federal pay would be adjusted for the sky-high cost of living in the Bay Area, which ranks 7th out of 9,294 metro areas on earth.

The BOP already has a “supermax” facility, ADMAX Florence, holding 354 inmates and 13 penitentiaries that together imprison over 17,200 high-security inmates. Alcatraz never even held its capacity of 336 inmates. 

At no time has the BOP argued it needs more high-security or ADMAX beds. In fact, the BOP’s sole new facility in the planning stages is a new medium-security prison in Letcher County, Kentucky.

None of the economics or agency needs analysis matters to President Trump. Rather, his idea to reopen Alcatraz is a reflection of his political instincts and personal tastes, even as it is a long shot to come to fruition.

Trump’s suggestion that Alcatraz could once again be a penitentiary for hardened criminals highlights both his efforts to project a tough-on-crime image and his fondness for cultural symbols of past generations:

violent160620“For too long, America has been plagued by vicious, violent, and repeat Criminal Offenders, the dregs of society, who will never contribute anything other than Misery and Suffering,” Trump wrote on Truth Social. “When we were a more serious Nation, in times past, we did not hesitate to lock up the most dangerous criminals, and keep them far away from anyone they could harm. That’s the way it’s supposed to be.”

Trump’s nostalgia may be misplaced. He was recalling a time (1961) when the nation was incarcerating 119 people per 100,000 population. By last year, the state and federal government were locking up almost five times that number, 531 people per 100,000 population, the 6th highest rate in the world.

The facts are irrelevant. What matters is that Trump thinks Alcatraz is symbolic, that “it represents something. Right now, it’s a big hulk that’s sitting there rusting and rotting,” he told reporters. “It sort of represents something that’s both horrible and beautiful, and strong and miserable. Weak. It’s got a lot of qualities that are interesting.”

When Trump was asked what inspired him to reopen Alcatraz, he said, “Well, I guess I was supposed to be a moviemaker.”

Newly minted BOP Director William K. Marshall III promptly issued a statement enthusiastically supporting Trump’s call. He promised that the BOP “will vigorously pursue all avenues to support and implement the President’s agenda.

“I have ordered an immediate assessment to determine our needs and the next steps,” Marshall said in the statement. “USP Alcatraz has a rich history. We look forward to restoring this powerful symbol of law, order, and justice.”

williammarshall250508Good luck with that, Bill. The BOP needs $3 billion for infrastructure repair. It asked Congress for $260 million for Fiscal Year 2025. It got $179 million. Of the $3 billion needed to repair existing BOP facilities, Walter Pavlo wrote in Forbes last fall, “Spending at these levels is simply not going to happen.”

Earlier this year, BOP issued a memorandum to senior leaders that it had to take on more than $400 million in new expenses — due to a government-wide 5.2% pay increase for employees and inflation — without receiving any additional funding to cover it. While the agency said it should prioritize hiring, a corrections officer and union representative told Government Executive in October that workers “are leaving in droves” and “running from this agency” because of job strain.

Six weeks ago, the BOP cut all retention bonuses, meant to stop the loss of staff, especially correctional officers.

It doesn’t much matter what Billy says the BOP will “vigorously pursue.” The BOP is a NASCAR driver punching the accelerator on a car that’s out of gas.

Corene Kendrick, ACLU National Prison Project deputy director, dismissed Trump’s Alcatraz statement as a “stunt.” She told the Guardian, “I don’t know if we can call it a ‘proposal’, because that implies actual thought was put into it. It’s completely far-fetched and preposterous, and it would be impossible to reopen those ancient, crumbling buildings as anything resembling a functioning prison.”

policestate190603The Los Angeles Times warned that “it’s easy, as many quickly did, to write off this push to spruce up and fill up America’s most notorious prison-turned-national park as just bloviating or distraction. But like the sharks that circle that island in the Bay, the real danger of the idea lurks beneath the surface… Trump in recent weeks has moved to undo years of criminal justice reform. He is making changes that increase police power, signaling a push to refill federal prisons and detention centers with Black and brown people and curbing the ability of those impacted to seek redress in courts.”

The Times argued that reopening Alcatraz as a prison “is nostalgia for an America where power ran roughshod over true justice, and police were an authority not to be questioned — or restrained.”

Associated Press, The federal Bureau of Prisons has lots of problems. Reopening Alcatraz is now one of them (May 6, 2025)

The Hill, Trump’s call to reopen Alcatraz faces ‘daunting’ challenges (May 5, 2025)

NBC News, Trump’s call to reopen Alcatraz as a prison could be stymied by roadblocks (May 5, 2025)

The Guardian, Not just Alcatraz: the notorious US prisons Trump is already reopening (May 6, 2025)

BOP, The Rock

Forbes, The Bureau Of Prisons Under A Trump Administration (November 7, 2025)

Los Angeles Times, The real threat behind reopening Alcatraz (May 5, 2025)

– Thomas L. Root

Cash Registers Ringing for Presidential Clemency… Just Not For Uncle Sam – Update for May 5, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARDONS: CRIME AND DRAMA

theatremasks250505Former Dept of Justice Pardon Attorney Elizabeth Oyer last week claimed on social media that President Trump’s pardons of white-collar defendants have cost Americans $1 billion.

Oyer totaled the money that the pardoned people owed or might owe in restitution and fines. Some pardon recipients had not yet been sentenced, leading her to estimate the restitution that might be imposed. The pardoned people who had already begun paying restitution can now seek reimbursement from the government.

Oyer, who has been outspoken against the Trump administration since she was fired in March over her opposition to a DOJ decision to restore actor Mel Gibson’s gun rights, said “that the $1 billion figure highlights the unusually high number of Republican allies convicted of fraud and pardoned by Trump before they served their sentences.” She called that “a significant break from the traditional and often protracted pardon application process,” the Washington Post reported.

“It’s unprecedented for a president to grant pardons that have the effect of wiping out so much debt owed by people who have committed frauds,” Oyer said. “They do not meet Justice Department standards for recommending a pardon.”

Law360 reported last week that the spate of White House pardons is resulting in white-collar defendants being solicited by scammers who promise to influence White House connections to secure pardons and commutations in exchange for big fees.

clemencyjack161229The clemency pitches call for payments of hundreds of thousands or millions, “prey on the desperation of people serving or facing prison time,” some experts say. “Historically, seeking a pardon was seen as a low-percentage effort, something that would be very difficult to pursue as part of the defense strategy, except in the most obvious circumstances,” Joe Whitley, chair of law firm Womble Bond Dickinson’s white collar defense practice, told Law360.

One clemency pitch that a “consultant” recently sent to a bank fraud defendant called for payment of $155,000 a month for six months, along with an additional $1 million “success fee” once clemency was granted. The consultant claimed to have access to Trump at his Mar-a-Lago resort, according to the defendant’s lawyer. The defendant was also pitched a different clemency service for $3 million, including a $2.5 million success fee, for “advocacy with the Trump administration for a pardon and/or case dismissal,” Law360 said.

“Unfortunately, a lot of what’s going on and a lot of the decisions being made are setting up corruption — it’s making this all dependent on having access to people in power and charging money for that access,” one big law firm partner told Law360.

money240822A white collar sentencing consultant was quoted as saying that a typical clemency package costs about $40,000 to $50,000. Law firms might charge up to $200,000 for clemency work.

“Selling a guaranteed pardon because of a perceived relationship is a problem,” the consultant told Law360. “In my opinion, it’s gross negligence to say, ‘I can get the president of the United States to grant this clemency on your behalf’.”

Washington Post, Fired DOJ attorney says on TikTok that Trump pardons cost U.S. $1 billion (May 1, 2025)

Law360, Pardon Me? Why Offers To Secure Clemency Might Be A Scam (April 24, 2025)

– Thomas L. Root