A Deep Dive on Pardons

LawyerOyer: “Just four months into his presidency, Donald Trump has already used his pardon power expansively. On Day 1, he granted over 1,500 full pardons to Capitol rioters. He has since granted 58 more pardons and 12 commutations—that we know of. Everything about these pardons is unusual: the who, what, where, when, and how. To understand just how unusual they are, it is helpful to understand the background “norms” that apply to pardons. The Department of Justice has detailed, longstanding guidelines in place for considering pardon applications, codified in the Justice Manual. Typically, the Department’s Office of the Pardon Attorney receives and reviews applications for executive clemency (both pardons and commutations) and prepares recommendations for the President based on these standards. (The Office has this helpful explainer for how the clemency process works in normal times.) The overarching consideration for pardons, as stated in the Justice Manual, is the following. “In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence.”In assessing a pardon candidate, the “the principal factors taken into account” under the Justice Manual (JM), are:

1. Post-conviction conduct, character, and reputation. Specifically, the JM looks for a “demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement.”
2. Seriousness and relative recentness of the offense. The JM cautions against pardons that would “denigrat[e] the seriousness of the offense or undermin[e] the deterrent effect of the conviction.” It also states that a pardon is generally more appropriate “[w]hen an offense is very old and relatively minor.”
3. Acceptance of responsibility, remorse, and atonement. The JM states: “A petitioner should be genuinely desirous of forgiveness rather than vindication.” The JM includes payment of restitution to victims as an “important consideration” under this factor.
4. Need for relief. “The purpose for which the pardon is sought” is a relevant consideration. The JM notes that a case may be more compelling if a pardon is needed to overcome a specific legal disability—such as employment barriers—resulting from the conviction.
5. Official recommendation and reports. Finally, the JM requires consultation with other stakeholders, including the prosecuting office and the sentencing judge.WHO: Political Activists, White Collar Offenders, and Public Officials
6. Many of Trump’s pardons have forgiven crimes committed in his name by political activists and his supporters. On his first day in office, Trump infamously pardoned en masse the Capitol rioters, totaling more than 1,500 people. He later pardoned a group of nearly two dozen abortion clinic protesters.
7. It seems likely that we will see more overtly political pardons if Trump’s Pardon Attorney, Ed Martin, has anything to say about it. Martin—who is the first political appointee to occupy a historically nonpolitical office—recently tweeted, “No MAGA left behind,” and “Freedom for Captives!” in reference to his recommendations and preferences for pardons…”