ABOUT THE RECENT GRANTS OF CLEMENCY

1.  As many of you know, President Trump granted clemency to several individuals a few weeks ago. You can see the people that President Trump granted Commutations to here. You can see the people who the President granted Pardons to here.

2.  There is a procedure by which clemency is granted or denied.  That procedure is in Code of Federal Regulations, Title 28 Chapter 1 part 1 titled Executive Clemency.  The specific process is in Section 1.6:

1.6   Consideration of petitions; notification of victims; recommendations to the President.

(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he or she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.

(b)(1) When a person requests clemency (in the form of either a commutation of a sentence or a pardon after serving a sentence) for a conviction of a felony offense for which there was a victim, and the Attorney General concludes from the information developed in the clemency case that investigation of the clemency case warrants contacting the victim, the Attorney General shall cause reasonable effort to be made to notify the victim or victims of the crime for which clemency is sought:

(i) That a clemency petition has been filed;

(ii) That the victim may submit comments regarding clemency; and

(iii) Whether the clemency request ultimately is granted or denied by the President.

(2) In determining whether contacting the victim is warranted, the Attorney General shall consider the seriousness and recency of the offense, the nature and extent of the harm to the victim, the defendant's overall criminal history and history of violent behavior, and the likelihood that clemency could be recommended in the case.

(3) For the purposes of this paragraph (b), “victim” means an individual who:

(i) Has suffered direct or threatened physical, emotional, or pecuniary harm as a result of the commission of the crime for which clemency is sought (or, in the case of an individual who died or was rendered incompetent as a direct and proximate result of the commission of the crime for which clemency is sought, one of the following relatives of the victim (in order of preference): the spouse; an adult offspring; or a parent); and

(ii) Has on file with the Federal Bureau of Prisons a request to be notified pursuant to 28 CFR 551.152 of the offender's release from custody.

(4) For the purposes of this paragraph (b), “reasonable effort” is satisfied by mailing to the last-known address reported by the victim to the Federal Bureau of Prisons under 28 CFR 551.152.

(5) The provisions of this paragraph (b) apply to clemency cases filed on or after September 28, 2000.

(c) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.

Furthermore, although the Attorney General is listed as the person who does these things, it can and often is delegated:

1.9   Delegation of authority.

The Attorney General may delegate to any officer of the Department of Justice any of his or her duties or responsibilities under [sections] 1.1 through 1.8.

Generally speaking, this responsibility is delegated to the office of the Pardon Attorney.  In a recent article, the Washington Post gave an explanation about what the Pardon attorney’s office is and does.

“Clemency can take two forms: Commutations shorten sentences, and pardons erase the civil consequences of criminal convictions, including limits on gun ownership, jury service and voting rights.

For decades, federal offenders filed petitions for clemency with the pardon office, which assigns a staff attorney to investigate each case.

[…]

With an annual budget of about $4.5 million, the office employs about 19 people, including 11 attorneys.

For pardons, the office looks for acceptance of responsibility and good conduct for a substantial period of time after conviction, among other considerations, according to Justice Department guidelines. Commutations hinge on the undue severity of a sentence, the amount of time served and demonstrated rehabilitation.

The pardon office’s decisions undergo scrutiny by the deputy attorney general, the No. 2 official at the Justice Department, who makes final recommendations to the Office of White House Counsel. […]

What’s more, the administration inherited a backlog of more than 11,300 petitions, according to Justice Department statistics.

As of late January, nearly 7,600 petitions have been filed since Trump took office. About 5,900 petitions have been closed by the pardon office during Trump’s presidency because the inmate was released, died or was ineligible for clemency.

Trump’s decisions on only 204 petitions means that nearly 13,000 people are waiting.”

Source: Most Trump clemency grants bypass Justice Dept. and go to well-connected offenders, Washington Post

3. It is important to note that the President is not bound by the Code of Federal Regulations on clemency.  The President can grant clemency at anytime to almost anyone:

Justice Department spokeswoman Nicole Navas declined to comment on the pace or nature of clemency grants under Trump but noted his singular authority.

The president always retains the plenary power granted to him by the Constitution to pardon or commute sentences, and does so at his sole discretion, guided when he sees fit by the advice of the pardon attorney,” Navas said.

“The Constitution’s only restriction on the pardon power is that it applies exclusively to federal crimes and not to impeachment.”

SOURCE: MOST TRUMP CLEMENCY GRANTS BYPASS JUSTICE DEPT. AND GO TO WELL-CONNECTED OFFENDERS, WASHINGTON POST

4.  The President is considering assembling a team of advisors to consider who to grant clemency to. 

“The White House is moving to take more direct control over pardons and commutations, with President Trump aiming to limit the role of the Justice Department in the clemency process as he weighs a flurry of additional pardon announcements, according to people familiar with the matter.

Trump, who granted clemency Tuesday to a group of 11 people that included several political allies and supporters, has assembled a team of advisers to recommend and vet candidates for pardons, according to several people with knowledge of the matter who, like others, spoke on the condition of anonymity to discuss internal deliberations.

The group, essentially an informal task force of at least a half-dozen presidential allies, has been meeting since late last year to discuss a revamped pardon system in the White House. Jared Kushner, Trump’s son-in-law and senior adviser, is taking a leading role in the new clemency initiative and has supported the idea of putting the White House more directly in control of the process that in past administrations has been housed in the Justice Department, officials said.

Pam Bondi, the former Florida attorney general who served on Trump’s impeachment defense team, is also playing a significant role, vetting applications for potential pardon recipients. Kushner has personally reviewed applications with White House lawyers before presenting them to Trump for final approval, according to two senior administration officials.

Trump, who prefers granting clemency to people with compelling personal stories or lengthy sentences, is inclined to grant more pardons […] one official said.

While several of the pardons Trump granted Tuesday went to well-connected or wealthy associates, the president also commuted the sentences of three women who had been convicted of nonviolent offenses — part of the new task-force effort.

The women were recommended by Johnson, who had her life sentence for a nonviolent drug offense commuted by Trump in 2018. Johnson has been working with the White House’s new clemency effort after Trump publicly asked her last year to submit a list of names of other people who deserved commutations, officials said. She recommended Crystal Munoz, Tynice Hall and Judith Negron, who each had their sentences commuted by Trump on Tuesday.

[…]

Johnson is a member of the informal network of advocates providing clemency recommendations. Former acting attorney general Matthew G. Whitaker, Democratic commentator Van Jones and Brett Tolman, a former U.S. attorney in Utah, are also part of the group, according to a senior administration official.”

SOURCE: White House assembles team of advisers to guide clemency process as Trump considers more pardons, Washington Post

So where do we go from here?  Honestly it is not clear.  Because it is still in the formative stages there is no information about what is going to happen.  We don’t know if this new committee is going to be formed, how they will work or what the criteria will be.  I recommend that everyone stay tuned here to keep informed.

Located in the Dallas/Fort Worth Area, the Law Office of Jeremy Gordon has been an award winning federal criminal defense firm since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  You can sign up for our newsletter here.