“A Plan to Restructure (and Revive) Pardoning After Trump”
The title of this post is the title of my second piece for Lawfare on the future of presidential pardoning after the unjust and irregular practices that characterized pardoning under President Trump. In response to critics who urge that responsibility for pardon advice should be removed from the Justice Department, I argue for restoring the pardon program to its historic place as an independent and respected part of that agency, so it can be an effective counterweight to the punitive views of prosecutors that have in the past frustrated pardoning. Reestablishing a functional institutional connection between the president’s power and the rest of the justice system will better serve both the presidency and the public interest in a more compassionate approach to criminal law enforcement. I suggest that Merrick Garland, whose Senate Judiciary Committee confirmation hearing to become attorney general begins on Monday, will understand how to reset the balance between pardon and justice to the benefit of both.
This is a follow-up to my Washington Post op ed, in which I argued that the presidential pardon power has been burdened with too many routine functions, and that the new administration should seek to restore a degree of practical efficiency to pardoning by working with Congress to reassign many of these functions to the courts — including shortening prison sentences and restoring lost rights.
The second piece is reprinted below:
A Plan to Restructure (and Revive) Pardoning After Trump
The overarching theme that emerges from four years of Donald Trump’s pardoning is an approach to government authority as transactional and personality based, rather than principled, structured, and process based. From the nation’s earliest days, unruly pardon has been harnessed to the rule-of-law virtues of the justice system, secured since the 19th century by its relationship to the Justice Department and by presidents respecting that relationship. Trump ostentatiously rejected that relationship from the start.
Trump not only detached the pardon power from the structure and operation of the justice system but he also used his power to challenge and frustrate that system. His pardons have been described by Bernadette Meyler as a throwback to the theatrical pardoning of the 17th century English kings and playwrights, enlarged and darkened by self-interest.
In the wake of Trump’s abusive and frequently haphazard pardoning, there have been calls to reform the process by which the president receives advice in pardon matters by stripping the Justice Department of its long-standing gatekeeper role. While reform of the pardon process is certainly in order, it would be a profound mistake to institutionalize Trump’s detachment of pardon from the justice system as these reformers urge.
Advocates for removing the pardon program from the Justice Department argue that the current administrative arrangement necessarily embodies a conflict of interest between the compassionate goals of executive clemency and the department’s responsibility for federal criminal prosecutions.
There is no doubt that the punitive culture of prosecutors in recent decades has been allowed to dominate the pardon program. As pardon attorney during the administrations of George H.W. Bush and Bill Clinton, I experienced firsthand the hostility of prosecutors to the very idea of clemency. They evidently feared that the pardon power would undo their hard work, and so made it the butt of jokes. They were even unreceptive to suggestions that pardon could tell good news about the criminal justice system by showcasing its goals of rehabilitation and redemption.
It was not always so. In the years before 1980, when the attorney general was personally responsible for advising the president on pardons, the pardon program had an honorable and independent role in his agency. It was only at the end of the Carter administration, when the attorney general delegated his advisory responsibility to subordinates responsible for the day-to-day operations of prosecutors’ offices, that the pardon program lost its privileged institutional status.
It is unfortunate that the demotion of the pardon program within Justice occurred at about the same time the crime war went into high gear and the department’s prosecutorial culture hardened. Successive pardon attorneys found it harder and harder to persuade political officials to whom they reported (who were usually themselves former prosecutors or had staffed their offices with prosecutors) to approve recommendations favoring clemency. Favorable recommendations sent to the White House grew fewer and fewer in number and more and more anodyne.
The pardon program became an extension of the department’s prosecutorial agenda rather than the source of independent advice to the president. As a result, presidents from Clinton to Obama found that they could no longer rely on the Justice Department as the steward of their pardon power. It is not surprising that the department’s first response to President Obama’s declared interest in commuting drug sentences was to farm out responsibility for managing this initiative to private organizations rather than try to identify eligible cases through its own established channels in each judicial district. It is a minor miracle that the initiative produced as many grants as it did.
Trump’s aberrant pardoning practices simply cemented what had already become a dysfunctional and unproductive relationship between the Justice Department and the presidency in pardon matters. It is no wonder that many observers see formal divorce as desirable and even inevitable.
But talk of divorce seems premature. The country has now seen what can happen when the pardon power is unmoored from the justice system, as it was under Trump. At the same time, the presidency is not well served by pardon advice that reflects an unforgiving prosecutorial culture, as it has since the 1980s.
It is possible to revive a functional institutional connection between pardon and the justice system by returning the pardon program to its historic place as an independent and respected part of the Justice Department. This means removing responsibility for pardon matters from subordinate officials who are also responsible for prosecution policy and returning it to the office of the attorney general. This will maximize the advantage the attorney general has historically enjoyed as one of the president’s closest political advisers, as well as the country’s chief law enforcement officer.
Whoever is appointed pardon attorney to take charge of day-to-day management of the pardon program must enjoy the confidence of the attorney general and the president himself and, thus, be in a position to overcome resistance from prosecutors. This has happened only once in the past 40 years, a halcyon year at the end of the Obama administration.
If responsibility for pardon matters remained with the Justice Department, the power could occasion internal review of cases whose disposition has been questioned and backstop the federal courts in reconsidering sentences that are simply too long by modern sensibilities. If political appointees and line prosecutors understood their responsibility to include asking the sort of questions pardon should ask (whether a conviction is justifiable, whether a sentence is excessive, whether a person deserves a second chance), it would surely influence their handling of criminal cases in the first instance. Pardon could permit the president to advertise criminal justice success stories and point the way to necessary reforms in the law, as it has in the past. In short, a reinvigorated pardon program could be integral to an enlightened criminal justice agenda.
By contrast, if responsibility for pardon advice were moved out of the Justice Department, whether to an independent agency or into the White House itself, the power would no longer be directly positioned to inform and temper prosecution and sentencing policies and practices. Clemency decisions would likely be less informed and perceived as less legitimate by law enforcement and the public. The president would doubtless be called on to mediate the inevitable conflicts between the agency responsible for clemency advice and agencies responsible for criminal law enforcement.
I have called Trump’s pardons a blessing in disguise if they result in Congress reassigning many of pardon’s routine functions to the courts. By the same token, their saving grace could be an opportunity to reaffirm the historically close relationship between the president’s power and the justice system, restructured so that each may once again usefully inform the other’s operation.
As a longtime judge who has personal experience with both prosecuting and pardoning, attorney general nominee Merrick Garland will understand how to reset the balance between these two great executive functions to the benefit of both.
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