President Trump has issued so many clemency grants smacking of political favoritism that the pardon power has been part of our national discourse the past four years. High-profile examples include Trump’s 2017 pardon of Joe Arpaio, a former sheriff who was convicted of criminal contempt of court for ignoring a judge’s order to stop detaining people he suspected of being undocumented. More recently, Trump commuted the sentence of his associate Roger Stone, who was convicted of witness tampering and lying to Congress. Given that seven Trump advisers have faced criminal charges and there are ongoing investigations that could implicate the president, Trump could well issue more questionable grants before leaving office. The big question is whether Trump will attempt to issue a pardon to himself.
Two narratives are set to play out before Inauguration Day. The one that makes headlines will be Trump’s use of the pardon power as a lame duck. Meanwhile, out of public view, the incoming Biden administration will make decisions about how to address the tremendous backlog of clemency cases and the broken machinery of clemency evaluation.
For all the attention his high-profile pardons have received, Trump has exercised this presidential power rarely. He has issued a paltry 28 pardons and 16 commutations. His early grant to Arpaio energized political opponents in Arizona and may have cost him enough voters to lose the state. The ballot box is where abuse of power is checked, and a majority of voters across the country made clear this month that they were not pleased with Trump’s cronyism and disrespect for courts and the rule of law.
Ironically, the Trump team thought that clemency for regular people could be a winning campaign issue, particularly among Black voters. They used a Super Bowl ad to highlight Trump’s clemency for Alice Marie Johnson. In 2018,Trump commuted her life sentence on federal drug and money-laundering charges; in 2020, he fully pardoned her — and she was a featured speaker at the Republican National Convention. Shortly before Election Day, Trump also commuted the sentences of five people unconnected to him; four of the offenses were related to drugs. Treating clemency as made-for-TV fodder, and plucking out a few cases that the campaign hoped had compelling narratives, is disappointing. More than 13,000 petitions are moldering in the bureaucratic maze of the clemency process, even as covid-19 ravages U.S. prison populations.
We worry that people will focus on Trump’s inappropriate grants and conclude that the clemency power needs to be limited — instead of focusing on the many people still waiting for a decision. This raises two issues: Any legislation to limit the clemency power is likely to be found unconstitutional. This approach also gets the problem backward: Clemency must be expanded, not limited, because there are so many people serving disproportionately long federal sentences who have no hope for relief other than presidential clemency.
That brings us to the second, and arguably more important, narrative about to unfold. What will the Biden team do about clemency? Will it sweep away the existing bureaucracy — which has failed to function well for decades, particularly since tough-on-crime, Willie Horton politics became mainstream — and try to implement a leaner, more focused and productive process?
During the Democratic primaries, Joe Biden’s major competitors — former mayor Pete Buttigieg and Sens. Cory Booker (N.J.), Amy Klobuchar (Minn.), Bernie Sanders (I-Vt.), Elizabeth Warren (Mass.) and Kamala D. Harris (Calif.) — all endorsed the idea of taking clemency out of the hopelessly conflicted Justice Department and establishing a bipartisan board. That proposal was among the Biden-Sanders unity task force’s recommendations and included in the Democratic Party platform. It must be implemented — and soon. The overstuffed clemency pipeline is about to burst.
Now is the time to focus on the future of clemency and reclaiming a principled constitutional power, not the fluff of the Thanksgiving turkey pardon (regardless of whether Trump goes through with that ceremony). So let’s get past the jokes about whether the turkey can pardon himself and get serious. While the clemency power has been abused by Trump, the power has also been used to make the world more just. If the president-elect reforms the process and uses the pardon power to remedy some wrongs of his own tough-on-crime past, that’s something for which all Americans can be thankful.