Many of Trump's clemency grants appear to have leapfrogged the traditional avenue that takes applicants through the U.S. Department of Justice and its Office of the Pardon Attorney before potentially reaching the White House.
The DOJ's pardon application describes the journey to clemency as a "lengthy process," one that involves background checks and requires applicants to wait at least five years after completing their sentences before formally seeking a pardon.
That path is not only onerous but also "inherently biased" against pardon seekers, because they are at the mercy of the same agency that prosecuted them, according to Samuel Morison, who worked as a staff attorney in the DOJ's Office of the Pardon Attorney from 1997 to 2010.
While at the pardon office, Morison reviewed pardon and commutation applications and made clemency recommendations to the president. He now has a solo practice in Washington, D.C., where he specializes in helping clients apply for federal clemency.
"We have a lot of former DOJ [attorneys] running around now saying, 'Just trust the Office of the Pardon Attorney. That's the magic fix to all this,'" Morison told Law360. "That's complete bullshit. And the reason is that the DOJ is a party to every single case that comes before the pardon office."
In other words, the traditional clemency system "leaves it up to the [DOJ] to undo something they did," said Mark Osler, a clemency expert and professor at the University of St. Thomas School of Law.
But under Trump, a path to clemency that goes directly through the White House has opened up alongside the "overly bureaucratic" clemency system that grinds through the DOJ, according to Osler and other experts.
They argue that the Trump administration's system lacks clear rules and seems to have largely benefited applicants with White House connections who are able to convince Trump they were victims of a weaponized justice system, bypassing other offenders who might be worthy of clemency.
"Let's say you've got a crappy old bicycle and the gears shift abruptly and the brakes don't work. That's what we had," Osler said of the traditional clemency process. "Now, there's no bicycle at all."
Pardon Haves and Have-Nots
Trump kicked off his second term at the White House with a flurry of clemency actions, including a blanket pardon for more than 1,500 defendants who took part in the Jan. 6, 2021, attack on the U.S. Capitol.
Since then, he has granted clemency to a growing number of high-profile defendants, including former Honduran President Juan Orlando Hernández, Puerto Rico's former Gov. Wanda Vázquez Garced, Binance co-founder Changpeng Zhao and Silk Road dark web marketplace creator Ross Ulbricht.
Julio Herrera, who allegedly paid bribes to Vázquez Garced and pled guilty to a campaign finance charge, also received a pardon from Trump. Herrera's daughter has donated $3.5 million to a Trump super PAC, according to Federal Election Commission records.
"The benefit of mercy is going to those who are affluent, powerful and connected," Osler said.
Last year, 16,145 people applied for clemency through the traditional DOJ process and more than 130 have applied within the past month, according to statistics from the pardon attorney's office. Only a fraction of those applications will be successful, experts predict.
At the same time, a cottage industry of lobbyists and consultants is seeking to cash in on the clemency hype. White collar lawyers told Law360 last year that their clients were being approached with clemency services contracts demanding fees of more than $1 million.
"A lot of people are charging a lot of money in representing people seeking pardons," Jon Sale, co-chair of the white collar practice at Nelson Mullins Riley & Scarborough LLP, said in a recent interview. "Most people can't afford that, which is unfair, but professionals can charge a lot of money — and sometimes [clemency seekers] don't get a return on that money."
Two of his clients have hired consultants to pursue clemency from the White House, Sale said, but he is not involved in the effort.
"What's new is that the access [to the White House] is easier," Morison said. "That's what's fueling people's optimism."
"Very Thorough" or "Broken"?
Trump fired DOJ pardon attorney Liz Oyer in May — she has publicly criticized the administration for using pardons to reward Trump's political allies, calling the change "unprecedented" — and tapped Ed Martin, a lawyer who defended Jan. 6 rioters, to fill the role.
Martin also was serving a dual role as chief of the DOJ's so-called "weaponization" working group that investigates Trump's political foes. He was recently removed from that role, but continues to serve as pardon attorney.
Trump also has a "pardon czar," Alice Marie Johnson, who makes clemency recommendations to the president. Trump commuted her life sentence for cocaine trafficking in 2018 and granted her a full pardon in 2020, after Kim Kardashian lobbied for her to receive clemency.
Attempts to speak with Oyer, Martin and Johnson were unsuccessful.
A DOJ spokesperson told Law360 that the "Office of the Pardon Attorney continues to serve a key role in assisting the president with exercising his constitutional authority to grant pardons and commutations."
"Applications are received and reviewed by the Office of the Pardon Attorney which provides recommendations to the president that are consistent, unbiased, and uphold the rule of law. There has been no departure from this long-standing process," the spokesperson added.
In response to a request for comment, a White House spokesperson referenced a statement press secretary Karoline Leavitt made in November, when she asserted that the administration has a "very thorough review process here that moves with the Department of Justice and the White House Counsel's office."
"There's a whole team of qualified lawyers who look at every single pardon request that ultimately make their way up to the president of the United States," Leavitt stated at the time. "He's the ultimate, final decision maker. And he was very clear when he came into office that he was most interested in looking at pardoning individuals who were abused and used by the Biden Department of Justice, and were over-prosecuted by a weaponized DOJ."
But many of Trump's clemency recipients do not appear to have gone through the formal DOJ application process, experts note. For instance, Zhao, Vázquez Garced and Trevor Milton, who was convicted of bilking investors in his electric truck company Nikola, were granted clemency from Trump, but their names do not appear in the DOJ's searchable database of clemency applicants.
Meanwhile, some who have secured pardons or commutations from Trump have gone on to reoffend, which suggests that clemency seekers are not being properly vetted, according to experts.
"That's what the pardon attorney's office is supposed to do with a background check to find out who this petitioner is and the merits of their application," New York University School of Law professor Rachel Barkow told Law360.
"In an ideal world, you'd want that done by someone who is objective and not overly partial to the prosecution," she said. "But you want it done so the president has full information about a person when making a decision."
Dozens of the pardoned Jan. 6 defendants had preexisting criminal records, according to an NPR report. And at least 33 of them have been rearrested, charged or sentenced in connection with other crimes since they were granted pardons, government watchdog group Citizens For Responsibility and Ethics in Washington reported in December.
Last month, Trump raised eyebrows in the clemency community when he pardoned Adriana Camberos — who was convicted of fraud, sentenced to more than a year in prison and ordered to pay nearly $49 million in restitution — after Trump had already granted her a commutation in 2021 that shortened a sentence she was serving for an unrelated fraud conviction.
Camberos was represented by lawyers in Trump's orbit when she secured the first clemency grant, and she later appealed to Trump for the second clemency grant by asserting prosecutors targeted her because Trump commuted her earlier sentence, according to a report from The New York Times.
"We've gone from two polar opposite pathologies — from too much process leaning toward 'no' [for the pardon seekers] to no process whatsoever leaning toward random caprice," Barkow said.
"Both are versions of a broken process," she added.
Reform Possible, but Elusive
During Trump's first term, Osler and Barkow met in the Roosevelt Room at the White House with Trump's daughter Ivanka Trump, son-in-law Jared Kushner, Kardashian and others, but not the president or his attorney general, to discuss fixing the clemency process.
The professors said they pushed a plan to adopt a more objective, independent process in which the DOJ had less of a thumb on the clemency scale. Their model calls for moving the clemency application review out of the DOJ and under the Executive Office of the President and having a bipartisan commission make pardon and commutation recommendations to the president.
"We pitched this idea that they seemed sympathetic to, but it didn't happen," Osler told Law360.
He and Barkow can only guess about why their idea failed to gain traction. But at the time of the meeting, Trump "was at war with the DOJ" amid a falling out with his attorney general at the time, Jeff Sessions, Osler noted.
During former President Joe Biden's administration, Rep. Ayanna Pressley, D-Mass., introduced the Fix Clemency Act in 2021. The bill, which Osler and Barkow reviewed and was similar to what they had proposed, called for abolishing the pardon attorney's office and establishing an independent federal clemency board that would vet clemency applications and make recommendations to the president.
The bill stalled, in part due to pushback over the DOJ giving up its power over the clemency process, according to Osler.
Pressley's office did not respond to a request for comment.
Osler is pessimistic about the chances of legislative reform at the moment, because "things are so chaotic," but said the landscape might become more favorable after the midterm elections.
Morison, the former pardon office attorney, suggested that Trump could issue an executive order that moves the pardon office, "lock, stock and barrel," out of the DOJ and under the Executive Office of the President with a pardon attorney who is independent of the department.
The DOJ would not be completely sidelined, as it would still be able to respond to an application for clemency, and an independent pardon attorney working with White House counsel would make the final recommendation to the president, Morison said.
"Trump could accomplish something if he regularized this process," he added. "Because when the next president comes in, I think we're just going to go back to the way we used to do it — everything will go through the DOJ and the DOJ will be in control of the whole process. That would be a step backwards."
Trump's successor might also take a dim view of clemency in general, based on the accusations of favoritism and corruption against the prior administration, and grant very few pardons, further restricting access for potentially deserving pardon seekers, according to Barkow.
"My fear is that, after what Trump has done, the next president is not going to want to touch this at all, because they won't want to be associated in any way with him and be scrutinized about whether they're giving [clemency] to favorites," she said.
"The worry is that [access to clemency] is going to be diminished or killed," she added.
A potential solution, according to Barkow, could come from Congress creating pathways to secure federal expungement, which would open a new route for relief that does not involve seeking clemency from the president.
"We don't have other mechanisms," she said. "So unless Congress steps up and creates alternatives, we'll only have clemency at the federal level. And if a president doesn't use it or only uses it for his moneyed friends, it's a tragedy, because a lot of unjust sentences will go uncorrected."
--Editing by Nicole Bleier.
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