4 Ways To Win A Presidential Pardon Under TrumpTrump's pardon process is unorthodox. But his willingness work around a deeply flawed Justice Department system has advocates for clemency reform hopeful.
There’s a name rumbling through prisons around the nation: Jared Kushner.
Kushner’s father served time in federal prison, and some incarcerated people hope that experience gives President Donald Trump’s son-in-law and top adviser a better understanding of their plight ― and could lead him to look favorably on their requests for clemency.
The idea that Kushner might have some special interest in freeing prisoners has so pervaded the nation’s federal prisons that some inmates have sent copies of their clemency applications directly to his Office of American Innovation in the White House. A few inmates have even pinned news clips of Kushner on their cell walls.
Jared Kushner, cellblock pinup, is just one of the surprising results of Trump’s unconventional approach to granting clemency. The president has been bypassing the Office of the Pardon Attorney at the Department of Justice, which has vetted clemency applications under previous presidents, and has acted more impulsively, issuing high-profile clemencies in cases that grab his attention.
So inmates and their advocates have adapted their tactics to fit the current administration. Here’s a guide to how to win a pardon under Trump.
Rather than filing requests only through the Justice Department, some advocates have scrambled to find back doors into the White House, floating the names of petitioners to celebrities, pundits, lawyers or anyone else who might care about the issue and has access to the president.
Kushner is one of them. He’s an obvious target for desperate inmates looking for some semblance of hope. He has firsthand exposure to the federal prison system. He’s an advocate for prison reform and pushed for the First Step Act, a sweeping measure that helps federal inmates work toward early release that the president signed into law last year. And he has a close personal relationship with the president.
But back-channel operations can be fraught. People close to the White House often claim to peddle influence but may not be as powerful as they say. So some inmates and their lawyers have sought out other avenues to reach the president ― with more success.
Trump has granted clemency to 10 people since he’s taken office ― eight pardons and four commutations (with some overlap). At least two of those cases came to his attention through celebrity intervention. In June 2018, Trump commuted the life sentence of Alice Marie Johnson, a 63-year-old in prison in Alabama for a first-time, nonviolent drug offense whose three clemency petitions were rejected by the Obama administration. Johnson’s case was brought to Trump’s attention by reality television personality Kim Kardashian.
Inspired by her success in Johnson’s case, Kardashian announced in April 2019 that she is studying to become a lawyer. In the meantime, she is also at work on several new cases. She has helped 17 people with low-level drug offenses get their sentences reduced and leave prison under the First Step Act. She has also advocated for a presidential pardon for Chris Young of Tennessee. Young, 30, was sentenced to life in prison on drug-related charges in 2014. In September 2018, Kardashian met with Kushner, Ivanka Trump and about a dozen others in the Roosevelt Room of the White House to discuss Young and to make a broader plea for prison and clemency reform.
Trump may yet pardon Young. But even Johnson’s commutation is, in many ways, an exception. Most of the cases in which he’s granted clemency have come to his attention in a different way: through conservative media.
The president watches four to eight hours of cable news each day, mostly Fox News. And most of Trump’s pardons and commutations have gone to people whose cases were featured on his favorite channel.
Just this week, the president granted a full pardon to former Army 1st Lt. Michael Behenna. Behenna was convicted by a military court in 2009 and served five years in prison for the murder of an Iraqi man who had been arrested on suspicion that he was an al-Qaeda member who had knowledge of a recent roadside bombing that had killed two American soldiers. Behenna, like some other disgraced military personnel, received favorable coverage on “Fox & Friends” last year, reportedly one of the president’s favorite shows.
Last year, Trump pardoned and commuted the sentences of Dwight Lincoln Hammond Jr. and Steven Hammond, a father-son team convicted in 2012 on two counts of arson on federal land whose cause had been championed by right-wing militias and featured on Fox News.
Trump has issued pardons as well for former Arizona sheriff Joe Arpaio, former George W. Bush administration official Scooter Libby and right-wing media provocateur Dinesh D’Souza. The cases of all three men were featured on Fox News. He also pardoned Kristian Saucier, a Navy sailor convicted of unlawful possession of national defense information who took his case to Fox News.
“The most honest answer I can give to those who ask me how to get a pardon from this president is this: Take your case to the media, to Fox News,” said Jack Wilenchik, an attorney in Arizona who represented Arpaio during his contempt-of-court case and ultimately his pardon, the first of Trump’s presidency. Wilenchik spoke to various news outlets about Arpaio’s case before Trump granted the pardon, hoping his words would reach the president. His plan worked.
Wilenchik explained that his office had no direct contact with the president or his counsel and had not submitted a formal application at the pardon attorney’s office before Arpaio was pardoned. The media angle worked far better for Arpaio than back channels did. Wilenchik thought someone with White House access had been directly communicating with Trump about a potential pardon for Arpaio. But when the White House Counsel’s Office called to inform him that the pardon was signed, he said, they told him they had no knowledge of anyone at the White House ever having made contact with Arpaio.
Wilenchik believes that Trump had become personally interested in Arpaio’s case and was closely following it after seeing the coverage on television.
“The president was raising the issues we brought up at a rally in Arizona, at an appearance the president had on ‘Fox & Friends’ ― we had never communicated those ideas to him directly, but they were things I’d been quoted as saying in an Associated Press article that Fox News had picked up on,” Wilenchik said. “So I think he probably studied the case after seeing it in the news.”
So Trump’s pardon process isn’t much of a process. But here’s the surprising thing: Although his pardons get considerable criticism from the media, Trump’s willingness to be critical of Justice Department convictions and to say openly that some defendants have been treated unfairly by the criminal justice system has given hope to advocates for a broader clemency movement. They have long been frustrated by the traditional clemency process and its deference to the DOJ and its prosecutors. Prisoners have taken notice, too. Clemency advocates say they have received a flood of requests from federal inmates to represent their cases since Trump began granting clemency.
The White House did not respond to requests for comment on the total number of petitions it has received since Trump took office, but Trump said in June 2018 that the White House had already collected 3,000 names of people it was considering for clemency. The Justice Department has indicated that it has received more than 3,000 petitions since Trump took office, but it’s not clear if those two lists are the same.
If Trump wanted, he could pardon every one of those inmates. The president’s pardon power is constitutionally granted and broad, meaning he has the authority to grant clemency to anyone convicted under federal law — with or without any process or deliberation with any agency or lawyer. President Abraham Lincoln once received an envelope from a general containing the cases of 55 people convicted of desertion. Lincoln simply wrote “pardoned” on the envelope and returned it to the general. And that was that.
The framers of the Constitution gave the president the pardon power to act as a backstop to an imperfect criminal justice system that too often doles out excessively harsh punishment. That’s not always how presidents have used that power. Some of Trump’s pardons appear to have more to do with political favoritism or celebrity attention than with any interest in remedying overzealous prosecution or unfair sentencing. But they’re not the product of a lengthy and conflicted bureaucratic process, either. And that might be a good thing, some clemency advocates argue.
Although the power to grant clemency for federal crimes belongs to the president exclusively, presidents have typically relied on the Office of the Pardon Attorney to advise them on cases that might be deserving of clemency. Congress established the office in the late 19th century, and for decades the pardon attorney reported directly to the attorney general, who then presented the pardon attorney’s recommendations to the president.
Years later, the attorney general moved authority over the pardon attorney to the deputy attorney general, who continues to oversee the office to this day. It’s a pairing that is rife with conflicts of interest — an office that is focused on undoing cases is housed within the Department of Justice, which brought those cases to begin with. (It’s an unusual setup. Plenty of states have some form of clemency board where prisoners can seek relief from their sentence, but none of them situate that board within a prosecutor’s office.)
Still, for about a century, the partnership worked — at least to some extent. Most presidents granted clemency to hundreds of people during their terms in office. Several presidents granted clemency to a thousand or more. In times of war, presidents have used their pardon power to help bind the nation’s wounds. After the Civil War, masses of former Confederate soldiers were granted amnesty. And as the Vietnam War drew to a close, President Gerald Ford set up a commission to grant conditional amnesty to draft dodgers and military deserters, forgiving tens of thousands of people for their crimes. Three years later, President Jimmy Carter would expand that effort to hundreds of thousands more. Other presidents have taken a broad interest in the powers, like President Franklin D. Roosevelt, who granted the most pardons and commutations of any president, helping more than 3,000 people.
But since President Ronald Reagan, clemency grants have dwindled to just several hundred per administration. They fell to a historic low with President George H.W. Bush, who granted clemency to less than 80 people. Some recent presidents who expressed a desire to systematically grant more clemencies, such as Bill Clinton and George W. Bush, were unable to do so because of structural hurdles.
President Barack Obama was the exception over the last few decades, granting clemency to more than 1,900 people convicted of federal crimes with more than 1,700 of those commutations of sentences. Still, even Obama’s effort has been criticized, including last year by the Justice Department’s inspector general, which found that the department “did not effectively plan, implement, or manage” the pardon process. A Sentencing Commission report concluded that the program was largely inconsistent in applying the factors it stated it would consider when recommending clemency, leaving more than 2,000 offenders who met the DOJ’s factors without relief. Ultimately, the results of the Obama administration’s push for clemency were more arbitrary and far more narrow than the president and then-Attorney General Eric Holder had initially pledged to achieve, according to a report from New York University School of Law. Because of Obama’s prosecutor-centered approach to clemency, he ended up leaving many worthy incarcerated people behind.
The cause of the decrease in presidential grants of clemency before Obama isn’t entirely clear. The prevailing “tough on crime” politics that emerged out of the crime surge of the 1960s through the 1990s, increased fears among politicians that they might be linked to a person who is pardoned and later commits another offense, and a host of other structural factors likely played roles. The bureaucratization of the process over time has also likely contributed to lower clemency numbers. What once was a more streamlined task of a pardon attorney giving advice to the attorney general who would then advise the president has become mired in a multilayered process beginning with a staff attorney in the pardon attorney’s office, then to the pardon attorney, to a staff attorney for the deputy attorney general, then to the deputy attorney general, to a staff attorney in the White House Counsel’s Office, then to the White House counsel and finally to the president. At each step of the way, a petition can be derailed.
Margaret Love, a former pardon attorney, argues that one of the biggest stumbling blocks is the transfer of the pardon attorney’s office to the deputy attorney general’s bailiwick. The deputy attorney general oversees all prosecutors in the many U.S. attorney’s offices around the nation — the very same prosecutors who are bringing charges against defendants that the pardon attorney is seeking to provide relief to. He or she also has the authority to review the pardon attorney’s clemency recommendations and can ultimately reject the application. Critics say this is exactly what happens all too frequently, as federal prosecutors have little interest in questioning or unwinding the department’s convictions. Justice Department prosecutors have become “determinedly and irreconcilably hostile” to clemency, Love wrote in a 2015 paper.
The process can be extremely difficult for prisoners and their lawyers, explained Mark Osler, a professor at the University of St. Thomas in Minneapolis and an expert on clemency.
“Unlike other parts of the criminal process, with clemency there is no transparency: no sense of where the petition is in the process, what the timeline will be or even the reasoning behind a grant or denial,” Osler said.
The mystery that envelops the process is unnecessary, Osler argues. Osler and other clemency experts, such as Rachel Barkow, a New York University law professor and a member of the U.S. Sentencing Commission from 2013 to 2018, have pushed for years to move the pardon attorney’s office out from under the Justice Department and instead situate it as an independent, bipartisan commission inside the Executive Office of the President with a diverse membership that could directly inform the president of its recommendations. That remedy could relieve the inherent conflicts of interest of DOJ oversight, allow for more voices to weigh in on an application beyond federal prosecutors, and increase transparency around clemency.
Advocates are eager for Trump to establish a formal process that is outside the Department of Justice at some point. But the unending controversies swirling around the president, including with regard to controversial pardons, may make that impossible.
In the meantime, incarcerated people and their advocates will try every means available to reach Trump.
“People are just desperate, and so they’re sending things to the pardon attorney, they’re sending things to the White House because there’s just no clear guidance,” explained one attorney who has worked on pardons and who requested anonymity due to the sensitivity of the ongoing process.
“It’s quite disheartening. Everyone’s not going to have the celebrity touch,” the attorney said. “They’re just not.”
This article was originally written and edited in September 2018 while Matt Ferner was a national reporter on staff at HuffPost. At the time of republication, Ferner is director of media strategy for The Justice Collaborative, a nonprofit, nonpartisan group that supports criminal justice reform.
Ryan Reilly contributed reporting.