1. bookVolume 11 (2022): Issue 2 (November 2022)
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Donald Trump's Clemencies: Unconventional Acts, Conventional Justifications

Published Online: 12 Sep 2022
Volume & Issue: Volume 11 (2022) - Issue 2 (November 2022)
Page range: 173 - 207
Journal Details
License
Format
Journal
eISSN
2719-5864
First Published
16 Apr 2016
Publication timeframe
2 times per year
Languages
English

“The power to pardon is a beautiful thing.”

Former President Donald Trump

Don Gonyea, Trump Sees Pardon as Power, Perk — Considers One for Muhammad Ali, NPR, June 8, 2018, https://www.npr.org/2018/06/08/618224554/trump-sees-pardon-as-power-perk-considers-one-for-muhammad-ali.

Introduction

An official White House statement released on November 25, 2020, followed up on a tweet from President Donald Trump announcing that he was pardoning Michael Flynn.

White House Press Release, Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grant-clemency-general-michael-t-flynn/ [hereinafter Flynn Pardon].

That statement offered an elaborate explanation and justification for that grant of clemency. Flynn served briefly as Trump's first national security advisor and had also been “head of the Defense Intelligence Agency,” “a decorated lieutenant general,” and an “early supporter of Mr. Trump's campaign” for President.

Charlie Savage, Trump Pardons Michael Flynn, Ending Case His Justice Dept. Sought to Shut Down, N.Y.Times, Nov. 25, 2020.

He pled guilty in 2017 to charges brought by special counsel Robert Mueller of lying to the F.B.I when they questioned him about his contacts with a Russian diplomat.

Ryan Lucas, Trump Pardons Michael Flynn, Who Pleaded Guilty to Lying About Russia Contact, NPR, Nov. 25, 2020, https://www.npr.org/2020/11/25/823893821/trump-pardons-michael-flynn-who-pleaded-guilty-to-lying-about-russia-contact, https://www.nytimes.com/2020/11/25/us/politics/michael-flynn-pardon.html.

He later attempted to withdraw his plea, accused the government of trying to frame him, and asserted his innocence.

Michael Flynn: Trump Pardons Ex-National Security Advisor, BBC, Nov. 26, 2020, https://www.bbc.com/news/world-us-canada-55080923.

The Flynn pardon ignited a firestorm of criticism.

Savage, supra note 3; Eric Tucker, Trump Pardons Flynn Despite Guilty Plea in Russia Probe, AP News, Nov. 26, 2020, https://apnews.com/article/donald-trump-pardon-michael-flynn-russia-aeef585b08ba6f2c763c8c37bfd678ed; Benjamin Wittes, Why the Flynn Pardon Matters, Lawfare, Dec. 18, 2020, https://www.lawfareblog.com/why-flynn-pardon-matters; Rachel VanLandingham & Geoffrey Corn, Trump's Blackwater Pardons Erase the Line Between Slaughter and Justified Wartime Violence, USA Today, Dec. 23, 2020, https://www.usatoday.com/story/opinion/2020/12/23/trump-pardons-american-war-criminals-undermines-rule-law-column/4026014001/; Laurel Wamsley, Shock and Dismay After Trump Pardons Blackwater Guards Who Killed 14 Iraqi Civilians, NPR, Dec. 23, 2020, https://www.npr.org/2020/12/23/949679837/shock-and-dismay-after-trump-pardons-blackwater-guards-who-killed-14-iraqi-civil; Jude Joffe-Block & Terry Greene Sterling, Joe Arpaio: Inside the Fallout of Trump's Pardon, Guardian, Apr. 8, 2021, https://www.theguardian.com/us-news/2021/apr/08/joe-arpaio-sheriff-arizona-donald-trump; Amita Kelly, President Trump Pardons Former Sheriff Joe Arpaio, NPR, Aug. 25, 2017, https://www.npr.org/2017/08/25/545282459/president-trump-pardons-former-sheriff-joe-arpaio; Terry Greene Sterling & Jude Joffe-Block, Joe Arpaio Pardoned By Donald Trump: The Inside Story of How It Really Happened, Slate, Apr. 26, 2021, https://slate.com/news-and-politics/2021/04/joe-arpaio-donald-trump-pardon-history.html; Jim Sergent & George Petras, Trump's Final Pardons Included Controversial Allies, but not Himself or His Family, USA Today, Dec. 30, 2020, https://www.usatoday.com/in-depth/news/2020/12/30/trump-pardons-controversial-patterns/4038315001/; Jonathan Lemire, et al, Trump Pardons Ex-Strategist Steve Bannon, Dozens of Others, AP News, Jan. 20, 2021, https://apnews.com/article/steve-bannon-trump-pardons-broidy-66c82f25134735e742b2501c118723bb; Here are Some of the People Trump Pardoned, N.Y Times, Jan. 26, 2021, https://www.nytimes.com/article/who-did-trump-pardon.html.

For example, Congressman Adam Schiff, labelled it an abuse of power and a corrupt reward for Flynn's loyalty to the President. Schiff tweeted, “Donald Trump has repeatedly abused the pardon power to reward friends and protect those who covered up for him. This time he pardons Michael Flynn, who lied to hide his dealings with the Russians. It's no surprise that Trump would go out as he came in—Crooked to the end.”

Adam Schiff (@RepAdamSchiff), Twitter (Nov. 25, 2020, 4:25 PM), https://twitter.com/repadamschiff/status/1331710650490478593?lang=en.

The White House statement justified the Flynn pardon by claiming that he “should never have been prosecuted” and went on to say that “the relentless, partisan pursuit of an innocent man” must end.

Flynn Pardon, supra note 2.

Trump associated Flynn's criminal charges with efforts by his own political opponents to challenge the results of the 2016 election, and he argued that this act of clemency would set “right an injustice.”

Id.

He called Flynn an “American hero” and, invoking the tradition of symbolic presidential pardons commemorating the Thanksgiving holiday,

Betty Monkman, Pardoning the Thanksgiving Turkey, The White House Hist. Assn., https://www.whitehousehistory.org/pardoning-the-thanksgiving-turkey; Fiskesjö, Magnus, The Thanksgiving Turkey Pardon, the Death of Teddys Bear, and the Sovereign Exception of Guantanamo (Prickly Paradigm Press, 2003); See also Daniel T. Kobil, Should Mercy Have a Place in Clemency Decisions?, in Forgiveness, Mercy and Clemency 60 (Austin Sarat & Nasser Hussain eds., Stanford University Press, 2007); Presidents occasionally exercise clemency power during holidays, often using the occasion to invoke mercy. For example, on Christmas Eve of 1945, President Truman issued a proclamation that restored the rights of ex-convicts who had served in the military for at least a year and had been honorably discharged. President Warren G. Harding in 1921 was said to have commuted the sentence of Eugene V. Harding, a public critic of the US involvement in World War I, so that he could spend Christmas with his wife.

wished a Happy Thanksgiving to Flynn and his family.

Flynn Pardon, supra note 2.

The Flynn pardon was just one of President Trump's 238 acts of clemency during his four years in office.

Clemency Statistics, U.S. Dept of Just., https://www.justice.gov/pardon/clemency-statistics, (last visited Sept. 26, 2021).

These commutations and pardons included four others granted to people involved in the Mueller investigation, including his “longtime friend Roger J. Stone Jr,”

Savage, supra note 3.

George Papadopoulos, Paul Manafort, and Alex van der Zwaan.

Sergent & Petras, supra note 6.

Benjamin Wittes, editor in chief of the Lawfare blog and a Senior Fellow in Governance Studies at the Brookings Institution, argues that these pardons offer a revealing glance into Trump's use of the pardon power to “give out goodies to friends, and anger enemies.”

Wittes, supra note 6.

But the controversies surrounding Trump's clemencies do not end there.

The former President caused a stir when he pardoned four Blackwater contractors convicted of killing 14 Iraqi civilians in 2007,

VanLandingham & Corn, supra note 6; Wamsley, supra note 6.

avid Trump supporter and “immigration hard-liner” Sheriff Joe Arpaio,

Greene Sterling & Jude Joffe-Block, supra note 6; Joffe-Block & Greene Sterling, supra note 6; Kelly, supra note 6.

and his “former top strategist Stephen Bannon.”

Sergent & Petras, supra note 6.

In each case, Trump used multiple means to explain, justify and rally support for his exercises of clemency. These included tweets, informal remarks to reporters, speeches, and White House press statements.

In what follows we examine what Trump said when he exercised his clemency power and how he used various platforms to justify his use of that extraordinary presidential prerogative. We note that while his use of it was often controversial and unconventional, and while some of the mediums through which he communicated about clemency were novel, his public justifications were quite conventional. They drew on a set of well recognized grounds to explain the clemency power's uses.

In Part II, we examine the existing scholarship on former President Trump's use of the pardon power with a particular focus on controversy and unconventionality. Part III explores rhetorical justifications for clemency identified by other scholars, and Part IV analyzes a shift from rehabilitative to retributive rhetoric that occurred alongside a shift in penal philosophy at the end of the twentieth century. Part V presents our findings about Trump's clemency justifications. Part VI offers a conclusion.

Trump's Controversial Use of the Clemency Power

We are not the first to explore Trump's use of the pardon power, although we are among the first to focus specifically on his justificatory strategies. Others have focused on Trump's circumvention of the standard procedures for granting clemency, the influence of personal connections on his decision making, Trump's exploration of the possibility of a self-pardon, and the impact of his specific acts of clemency.

A number of scholars have highlighted former President Trump's disregard of the federal government's well-established clemency processes.

Bernadette Meyler, Trump's Theater of Pardoning, 72 Stan. L. Rev. 92, (Mar. 2020) [hereinafter Trump's Theater of Pardoning]; Bernadette Meyler, Transforming the Theater of Pardoning, 33 Fed. Sent. R. 293, 293–96 (2021) [hereinafter Transforming the Theatre of Pardoning].; Jeffrey Crouch, President Donald J. Trump and the Clemency Power: Is Claiming ‘Unfair’ Treatment for Pardon Recipients the New ‘Fake News’? in Presidential Leadership in the Trump Clemency 99–120 (Charles Lamb & Jacob Neiheisel eds., London: Palgrave Macmillan, 2020.); Budd Shenkin & David Levine, Should the Power of Presidential Pardon Be Revised, 47 Hasting Const. L. Q. 3, 3–18 (2019); Matthew Gluck & Jack Goldsmith, Donald Trump and the Clemency Process, 33 Fed. Sent. R. 297, 297–300 (2021); Kenneth Vogel & Nicholas Confessore, Access, Influence and Pardons: How a Set of Allies Shaped Trump's Choices, N.Y. Times, Mar. 21, 2021, https://www.nytimes.com/2021/03/21/us/politics/trump-pardons.html; Michael Schmidt & Kenneth Vogel, Prospect of Pardons in Final Days Fuels Market to Buy Access to Trump, N.Y. Times, Jan. 17, 2021, https://www.nytimes.com/2021/01/17/us/politics/trump-pardons.html; Margaret Colgate Love, After Trump: Restoring Legitimacy to the Pardon Power, 33 Fed. Sent. R., 285, 285–92 (2021); Tyler Brown, The Court Can’t Even Handle Me Right Now: The Arpaio Pardon and Its Effect on the Scope of Presidential Pardons, 46 Pepp. L. Rev. 331, 331–36 (2019); Trump Grants Clemency to Former Blackwater Contractors Convicted of War Crimes in Iraq and Associates Prosecuted Following the Mueller Investigation, 115 Am. J. of Intl L., 329, 329–34 (2021) [hereinafter Trump Grants Clemency to Former Blackwater]; Julia Jefferson-Bullock, I, Too, Sing America: Presidential Pardon Power and the Perception of Good Character, 57 Duq. L. Rev. 309, 309–24 (2019); Mark Osler, Clemency as the Soul of the Constitution, 34 J.L. & Pol. 131, 131–64 (2019).

Before Trump, clemency applications first were funneled through the Office of the Pardon Attorney in the Department of Justice.

Office of the Pardon Attorney, United States Dept of Just., https://www.justice.gov/pardon (last visited Oct. 25, 2021). The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for Executive Clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine or restitution and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case. In addition, the Office of the Pardon Attorney acts as a liaison with the public during the pendency of a clemency petition, responding to correspondence and answering inquiries about clemency cases and issues.

Matt Gluck and Jack Goldsmith concluded, after analyzing the Office of the Pardon Attorney's (OPA) database,

Jack Goldsmith & Matthew Gluck, Trump's Aberrant Pardons and Commutations, Lawfare, Jul. 11, 2020, https://www.lawfareblog.com/trumps-aberrant-pardons-and-commutations. In their spreadsheet titled “Trump's Aberrant Pardons and Commutations Chart” (https://docs.google.com/spreadsheets/d/1lPyYaALDOzDWsyfaOjkWk0LkXoGe_ayf9FV4oHgLAhQ/edit#gid=1909960010), Goldsmith and Gluck attempt to determine whether the Office of the Pardon Attorney (OPA) recommended a pardon to Trump. They grouped Trump's clemencies into four categories: “yes,” “probably,” “probably not,” and “no.” While categorizing Trump's clemencies, Goldsmith and Gluck examined news articles as well as the OPA's databases. Goldsmith and Gluck used these databases to help determine whether a clemency petition was ever submitted to the OPA. If it was not, then the clemency was placed in the “no” category. If a petition was submitted, then Goldsmith and Gluck looked through news articles, determined whether the petition was marked as declined in the OPA's databases, examined the different criteria the OPA would normally use when deciding to recommend a petition, and estimated whether the OPA had enough time to process the petition. If Goldsmith and Gluck had doubts as to whether a petition had gone through the OPA, then the clemencies would be placed in either “probably” or “probably not.”

that “most likely, only twenty-five of the 238 [clemency grants] were recommended by the Pardon Attorney.”

Gluck & Goldsmith, supra note 21, at 298.

They claim that although other Presidents had on rare occasions ignored the Pardon Attorney process, Trump “turned the exceptional circumvention of the pardon attorney process into the rule.”

Id.

While he ignored the pardon attorney, Kenneth Vogel reported that 27 out of the 238 total pardons and commutations were endorsed by the Aleph Institute: “a loose collection of lawyers, lobbyists, activists, and Orthodox Jewish leaders who had worked with Trump administration officials on criminal justice legislation championed by Jared Kushner.”

Vogel & Confessore, supra note 19.

Vogel says that the Institute tended to support “wealthy or well-connected fraudsters,”

Id.

which added to disparities during the Trump Administration between those deserving clemency and those who actually received it.

Schmidt &Vogel, supra note 19.

Others argue that Trump ignored the Department of Justice's recommendations and screenings

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 293; Crouch, supra note 19; Shenkin & Levine, supra note 19; Gluck & Goldsmith, supra note 19, at 297.

in order to select recipients of pardons or commutations “because of their celebrity, his personal connection with him, political ties, or the nature of the law under which they were convicted.”

Trump's Theater of Pardoning, supra note 19.

New York Times reporters Michael Schmidt and Kenneth Vogel claim that the recommendations that the President received largely came from an “ad hoc system” of outside advisors.

Vogel & Confessore, supra note 19, Schmidt & Vogel, supra note 19.

Political scientist Jeffrey Crouch agreed and concluded that Trump's decision to bypass the Pardon Attorney signals the need for serious, structural reform of the clemency process.

Crouch, supra note 19.

But former President Trump's preferred clemency process had other distinctive and unusual features. Some claim that it lacked “any effort to make the process appear fair”

Love, supra note 19, at 286.

and was carried out with “no hint of restraint.”

Jefferson-Bullock, supra note 19, at 310.

Several scholars point out the numerous political, high-profile, and unpopular grants of clemency that Trump issued during his presidency.

Love, supra note 19, at 285–286; Shenkin & Levine, supra note 19, at 11; Brown, supra note 19, at 354; Osler, supra note 19, at 146.

Law professor Mark Osler argues that Trump, early on in his term, made it clear that he would actively and personally participate in the clemency process and that he continued to do so until he left office.

Osler, supra note 19, at 147.

Osler adds that “Modern presidents have sullied clemency through disuse (both Bushes) and occasional self-serving grants (Clinton). However, no president has ever used clemency primarily to reward friends and political allies—until Trump.”

Matthew Schwartz, Roger Stone Clemency Latest Example of Trump Rewarding His Friends, Scholars Say, NPR, July 12, 2020, https://www.npr.org/2020/07/12/890075577/roger-stone-clemency-latest-example-of-trump-rewarding-his-friends-scholars-say.

Bernadette Meyler and Margaret Love see in Trump's use of the clemency power an alarming disregard of the law.

Trump's Theater of Pardoning, supra note 19.; Transforming the Theater of Pardoning, supra note 19, at 294–95; Love, supra note 19, at 285–289.

Love says that Trump was eager to use pardons and commutations to “disrupt ongoing prosecutions or sharply curtail punishment in cases of political corruption or massive fraud against the government.”

Love, supra note 19, at 286.

Meyler argues that Trump's populist messaging promotes a vision of “leadership unconstrained by the rule of law,” and his tendency to pardon political associates showed that he cared less about the overall wellbeing of the country than about demonstrating his ability to flout or ignore the law.

Transforming the Theater of Pardoning, supra note 19, at 294–95.

The pardon of “ex-sheriff Joe Arpaio…in August 2017”

Crouch, supra note 19.

occurred early in Trump's term, relative to the time recent presidents had first used their clemency power. Meyler and Crouch note that Arpaio was an outspoken supporter of Trump, advocated for harsh immigration policies, and did not even request clemency.

Trump's Theater of Pardoning, supra note 19; Colton Brown, Executive Judgments: The Insidious Implications of the Presidential Pardon and Commutation Authority, 93 Temp. L. Rev. Online, 27, 42 (2021).

Others draw attention to Arpaio's charge—criminal contempt—and suggest that his pardon was an affront to the judiciary and offended the separation of powers.

Paul Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits and, If Not, Should There Be, 51 Ariz. St. L. J. 71, 71–108 (2019).

Meyler and Love both label such uses of the pardon power as “theatrical.”

Love, supra note 19, at 285.

Scholars also suggest that many of former President Trump's clemency decisions, including who he pardoned, whose recommendations he sought, and the medium he used to communicate the pardon, were really about him and his sense of being underappreciated or embattled by hostile political forces.

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 293–94; Brown, supra note 40, at 27–60; Crouch, supra note 19; Love, supra note 19, at 286; Shenkin & Levine, supra note 19, at 5; Scott Johnson, President Donald J. Trump and the Potential Abuse of the Pardon Power, 9 Faulkner L. Rev. 289, 289–328 (2018); Paul Larkin, Jr., The Legality of Presidential Self-Pardons, 44 Harv. J.L. & Pub. Poly 763, 763–826 (2021); Gluck & Goldsmith, supra note 19, at 299; Goldsmith & Gluck, supra note 21; Jefferson-Bullock, supra note 19, at 315; Frank Bowman, III, Are Blanket Pardons Constitutional, 33 Fed. Sent. R 301, 301–06 (2021), Vogel & Confessore, supra note 19; Schmidt & Vogel, supra note 19.

Trump's self-centered clemency comes through in his insistence on pardoning those involved in the Mueller investigation, his indifference to pardon attorney recommendations, and sidelining the bureaucracy by putting himself at the hub of a network of supplicants who sought his favor. This self-centeredness was also seen in his use of Twitter as a personal and unfiltered platform on which he could communicate about his innocence and that of his associates.

Brown, supra note 40, at 46–47; Eckstein & Colby, supra note 41. Schumer, Congressional Record 164, no. Number 7 (01/11/2018): S143–S170. See generally Katie Rogers & Maggie Haberman, Like Father Like Son, Using Twitter as a Foil to Skewer Political Foes, N.Y. Times, July 1, 2017, at A14.

Trump used clemency as a tool to promote his own image and protect his administration.

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 293; Brown, supra note 40, at 42–46; Shenkin & Levine, supra note 19, at 5; Johnson, supra note 43, at 302; Larkin Jr., supra note 43, at 765; Gluck & Goldsmith, supra note 19.

Colton Brown connects this pattern to Trump's impeachment process. He claims that several pardons and commutations granted after the President's first acquittal were undeniably well-connected to the President and demonstrated “President Trump's ‘growing sense of political invulnerability.’”

Brown, supra note 40, at 45.

Stylistically, Meyler notes that Trump placed “his name in enormous bold letters,” larger than the font of the recipient's name, at the beginning of pardon announcements.

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 293.

Brown argues that Trump's pardons were particularly controversial because of his “pattern of rewarding people popular with his supporters or those who had spoken glowingly of Trump.”

Brown, supra note 40, at 43.

Others focus on the fact that Trump was openly partial to his political allies, granting clemency to longtime allies Roger Stone”

Transforming the Theater of Pardoning, supra note 19, at 294.

and Paul Manafort.

Larkin Jr., supra note 43, at 765.

Crouch claims that the earlier pardon of Dinesh D’Souza was designed to send a message to “Michael Cohen and others that their devotion may be rewarded with a presidential pardon.”

Crouch, supra note 19.

He adds that although some of Trump's choices may have been questionable, the former President, “to his credit,” did not try “to hide his clemency decisions from the public.”

Id.

The controversial pardons of three United States service members - Michael Behenna, Clint Lorance, and Mathew Golsteyn - also generated substantial scholarly commentary.

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 294; Brown, supra note 40, at 44–45; Love, supra note 19 at 286; Trump Grants Clemency to Former Blackwater, supra note 19; Stuart Ford, Has President Trump Committed a War Crime By Pardoning War Criminals?, 35 Am. U. Intl L. Rev. 757, 757–820 (2020); David Maurer, War Crime Pardons and Presidential (Self-) Restraint, 33 Fed. Sent. R. 313, 313–318 (2021); Issuing Several Pardons, President Trump Intervenes in Proceedings of U.S. Troops Charged or Convicted of Acts Amounting to War Crimes, 114 Am. J. Intl L. 307 (2020).

According to NPR reporter Bill Chappell, Behenna was “convicted by a military court in 2009 for killing an Iraqi prisoner suspected of being part of al-Qaida” and was released on parole in 2014 after being originally sentenced to 25 years.

Bill Chappell, Trump Pardons Michael Behenna, Former Soldier Convicted of Killing Iraqi Prisoner, NPR, May 7, 2019, https://www.npr.org/2019/05/07/720967513/trump-pardons-former-soldier-convicted-of-killing-iraqi-prisoner.

Lorance and Golsteyn were charged with similar crimes; Lorance was sentenced to 19 years for ordering his soldiers to shoot unarmed Afghan civilians and killing two in the process, while Golsteyn was convicted of killing a “suspected Afghan bombmaker.”

Trump Clears Three Service Members in War Crimes Cases, L.A. Times, Nov. 15, 2019, https://www.latimes.com/politics/story/2019-11-15/trump-intervenes-in-military-justice-cases-grants-pardons.

David Maurer states that, while President Trump was not the first President to pardon a soldier, the pardon of Behenna was “the first time any president had pardoned a former or current soldier for battlefield misconduct that could have been charged as a war crime.”

Maurer, supra note 53, at 313.

Meyler claims that these military pardons “affirmed the use of force regardless of international human rights”

Transforming the Theater of Pardoning, supra note 19, at 294.

and proved Trump's disregard for the laws of war.

Trump's Theater of Pardoning, supra note 19; Brown, supra note 40, at 44.

Maurer and Ford both pick up this theme and highlight the unique nature of war crime pardons. Ford suggests that Trump violated international criminal law by ending the punishment of a war criminal,

Ford, supra note 53, at 770.

and Maurer argues that such abuse of power highlights the need for reform of the process for granting military pardons that should be entirely independent from the President's absolute pardon power.

Maurer, supra note 53, at 315.

The question of a potential self-pardon by President Trump drew a significant amount of scholarly attention.

Trump's Theater of Pardoning, supra note 19; Transforming the Theater of Pardoning, supra note 19, at 294; Brown, supra note 40, at 48; Crouch, supra note 19; Larkin Jr., supra note 43, at 773–777; Paul Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits and, If Not, Should There Be, 51 Ariz. St. L. J. 71, 71–108 (2019); Schmidt, supra note 19.

Trump asserted on Twitter in 2018 that he had “the absolute right to pardon myself”

Trump's Theater of Pardoning, supra note 19; Eckstein & Colby, supra note 61, at 98.

—an unprecedented and constitutionally questionable assertion.

Eckstein, supra note 61, at 98; Larkin Jr., supra note 43, at 777; Transforming the Theater of Pardoning, supra note 19, at 294.

Meyler responded that it would be reasonable for a court to decide that the “prohibition of judging in one's own case” would “extend to pardoning” and be unconstitutional.

Trump's Theater of Pardoning, supra note 19.

However, other scholars disagreed.

Crouch, supra note 19, Eckstein & Colby, supra note 61.

When scholars venture beyond the fact of particular clemency grants, their political meaning or the controversies they generated, few have very much to say about the justificatory rhetoric on which Trump relied. However, Crouch does note Trump's frequent use of the word “unfair” in his grants of clemency, which he claims was “an intentional messaging decision.”

Crouch, supra note 19

Additionally, Brown focuses on the language Trump used in his defense of the Arpaio pardon and noted that it relied on an innocence argument rather than a more typical claim about the undue harshness of the sentence.

Brown, supra note 19, at 356.

Yet neither presents the kind of comprehensive analysis of the justifications Trump offered for his clemency decisions that we consider in this paper.

Justifying Clemency

Clemency demands explanation and justification in a constitutional democracy because the President's power to grant pardons and reprieves is a plenary power, a power that knows no legal limits.

For a discussion of the need to justify clemency, see Austin Sarat, Mercy on Trial: What It Means to Stop an Execution (2005). The following discussion is adapted from that book.

“Historically,” as Professor Colleen Klasmeier notes, “clemency's effectiveness depended on its unpredictability ... the sovereign might grant clemency for any reason or for no reason at all.”

Coleen Klasmeier, Towards a New Understanding of Capital Clemency and Procedural Due Process, 75 B. U. L. Rev. 1507 (1995).

Clemency exists in a space of possibility beyond regulation. Thus pardon “does not belong to the juridical order. It does not stem from the same plane of the law ... Indeed pardon outruns the law as much through its logic as its end.”

Paul Ricouer, The Just 144 (David Pellauer, trans., 1995). As Hugo Adam Bedau puts it, “Clemency decisions-even in death penalty cases-are standardless in procedure, discretionary in exercise, and unreviewable in result.” See Hugo Adam Bedau, The Decline of Executive Clemency in Capital Cases, 8 N.Y.U. Rev. L. & Soc. Change 252, 255 (1990–91).

Law professor Henry Weihofen similarly contends that clemency “has always been the broadest and least limited of powers. By its very nature, it could not be subject to rules or restrictions. Its function was rather to break rules, wherever in the opinion of the pardoning authority mercy, clemency, justice, or merely personal whim dictated.”

Henry Weihofen, Pardon as an Extraordinary Remedy, 12 Rocky Mountain L. Rev. 112, 114 (1940). See also Victoria Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311, 331–32 (1996). Palacios says that clemency “operates in derogation of the law. It is the antithesis of the rule of law because it is called upon when legal rules have failed to do justice. It is inherently paradoxical because it enhances justice in general by overriding the justice system in a specific case.” As the Government of Mexico recently contended in an argument before the International Court of Justice, in the United States, “clemency review is standardless, secretive, and immune from judicial oversight.” See Memorial of Mexico (June 20, 2003) submitted in the “Case Concerning Avena and Other Mexican Nationals, Mexico v United States of America”. Found at http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm.

Highlighting this, the Attorney General of the United States issued a report in the mid-twentieth century on release procedures in the federal system, including the President's clemency power. He described its relation to law as follows:

Emerging from the field of mere arbitrary caprice or semi-magical folklore, pardon has become an institution which is part of, and yet above, the legal system. It has never been crystallized into rigid rules. Rather its function has been to break rules. It has been the safety valve by which harsh, unjust, or unpopular results of formal rules could be corrected. The almost wholly unrestricted scope of the power...has been the tool by which many of the most important reforms of the substantive criminal law have been introduced.

United States Department of Justice, 3 Attorney General's Survey of Release Procedures 209, 295 (1939).

Right from the start of the Republic the clemency power has been difficult to reconcile with America's commitment to the rule of law and traditions of democratic governance. Writing in 1788, Alexander Hamilton set out to explain and defend what seemed to his contemporaries something of an anomaly in America's new constitutional scheme, namely lodging the power to grant “reprieves and pardons for offenses against the United States” solely in the President of the United States.

U.S. Const. art. 2, § 2, cl.1.

Although the original versions of the New York and Virginia Plans that provided the frameworks for debate at the Constitutional Convention included no provisions for pardon, revisions to both plans eventually did. The power that emerged from the convention was regarded by Hamilton as one of the great prerogatives of sovereignty. He hoped that lodging such awesome power in one person would inspire in the chief executive “scrupulousness and caution.”

Alexander Hamilton, Federalist 74, in The Federalist: A Commentary on the Constitution of the United States 482 (New York: The Modern Library, 1956).

Yet Hamilton recognized that, notwithstanding its advantages, granting such a power to the Chief Executive blurred the boundary between the rule of law and monarchical privilege. Traditional ideas of sovereignty would be imported into a document dedicated to constructing a government of limited powers. Like the king acting “in a superior sphere...,” lodging the power to pardon exclusively in the President meant that the fate of persons convicted of crimes would be dependent ultimately on the “sole fiat” of a single person. This was hardly the image of a government of laws and not of persons that Hamilton sought to defend. This is why, unlike the President's power as commander-in-chief of the army and navy a constitutional provision the propriety of which, in Hamilton's view, was “so evident in itself ... that little need be said to explain or enforce it,”

Id.

the President's power to pardon seemed to him neither self-evident nor self-explanatory. Yet explain and defend it he did, while also claiming that what he called “the benign prerogative of pardoning ... (unlike almost every other government power in the new constitution) should be as little as possible fettered.”

Id.

Clemency in the Supreme Court

Numerous Supreme Court decisions have embraced Hamilton's vision and tried to reconcile clemency and the constitutional tradition, starting with the case of United States v. Wilson, the first clemency case to reach the Court.

See United States v. Wilson, 32 U.S. 150, 160 (1833).

This case brought to the Court President Andrew Jackson's pardon of a robber for “the crime for which he has been sentenced to death” and the question of what happened when Wilson, for breathtakingly inexplicable reasons, “did not wish in any manner to avail himself, in order to avoid the sentence in this particular case, of the pardon referred to.”

Id. at 159

Wilson's refusal put the courts in a bind of almost novelistic proportions, requiring them to determine whether a pardon could unseal the fate of a criminal against his wish to see it sealed.

To resolve such a question, Marshall found little in America's own nascent legal tradition and thus invoked the historical connection of the United States to “that nation whose language is our language.”

Id. at 160.

Adopting the “principles” and “rules” of English law, Marshall carved out an honored place for clemency. He described a pardon of the kind rendered by President Jackson as “an act of grace, proceeding from the power entrusted with the execution of the laws... .”

Id. As we will see below, many have taken issue with the conception of clemency as grace. For example, Winthrop Rockefeller says that this view is “totally wrong. In a civilized society such as ours, executive clemency provides the state with a final deliberative opportunity to reassess the moral and legal propriety of the awful penalty which it intends to inflict.” Winthrop Rockefeller, Executive Clemency and the Death Penalty, 21 Cath. U. L. Rev. 94, 95 (1971).

This grace is seemingly beyond the reach of legal compulsion or regulation; it is a grace freely given or withheld finding its only home, as Blackstone put it, in “a court of equity in ... [the President's] own breast.“

William Blackstone, Commentaries on the Laws of England, 4(2) J. Law (2014), 397–402. 12

A little more than twenty years after Wilson the Supreme Court dealt with the question of whether the President could impose conditions on pardons. In Ex Parte Wells,

Ex parte Wells, 59 U.S. 307 (1856).

a murderer under a death sentence received and accepted from President Fillmore “a pardon of the offence of which he was convicted, upon condition that he be imprisoned during his natural life, that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary at Washington.”

Id.

The murderer subsequently sought habeas corpus review of his prison sentence. Wells contended that his acceptance of the condition was invalid because it was undertaken while under the “duress” of imprisonment.

Id.

The Court began its decision by acknowledging that, while the power to pardon was expressly provided for in the Constitution,

For a discussion of their constitutional roots as well as a qualified defense of conditional pardons. See Harold Krent, Conditioning the President's Conditional Pardon Power, 89 Calif. L. Rev. 1665, 1719–21 (2001).

“No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the constitution.”

Id. at 309.

Justice Wayne turned to language and usage, noting the way the term pardon is understood in “common parlance.” Ordinarily pardon “is forgiveness, release, remission. Forgiveness for an offence, whether it be one for which the person committing it is liable in law or otherwise. Release from pecuniary obligation, as where it is said, I pardon you your debt. Or it is the remission of a penalty, to which one may have subjected himself by the non-performance of an undertaking or contract, or when a statutory penalty in money has been incurred, and it is remitted by a public functionary having power to remit it.”

Id. at 309–10.

Wayne articulated the reason clemency was included in the Constitution.

Id. at 310. Embracing Wayne's view of the distinction between clemency and forgiveness, former Ohio Governor Richard Celeste explained his commutation of 8 death sentences by saying that while he spared the lives of those whose sentences were changed to life in prison he “didn’t forgive them. I did not forgive them.” See Celeste, At Ease With Commutations, Cleveland Plain Dealer, Jan. 5, 1997, at 12A. Or, as Dean notes, “Forgiveness and pardon are logically independent ... . A pardon is an act one can perform only in a social or legal role. This characteristic distinguishes it from forgiveness and mercy, which are virtues that persons exhibit as individuals.” See Kathleen Dean Moore, Pardons: Justice, Mercy, and the Public Interest, 185, 193 (1989).

“Without such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.”

Id.

In 1866, the Supreme Court again took up the President's power to pardon, this time upholding clemency for a confederate legislator who had been pardoned “for all offences by him committed, arising from participation, direct or implied, in the said Rebellion.”

Ex parte Garland, 71 U.S. 333, 336 (1866).

The issue before the Court was whether that pardon exempted him from being subject to an act of Congress requiring persons wanting to practice law to swear that they had “not yielded a voluntary support to any pretended government, authority, power, or constitution, within the United States, hostile or inimical thereto.”

Id. at 376.

Speaking of the President's pardon power, Justice Stephen Field gave legal sanction to its lawlessness. “The power thus conferred,” Field said,

is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Id. at 371. See also Armstrong v. United States, 80 U.S. 154, 155–156 (1872) (upholding the validity of Andrew Johnson's proclamation of pardon and amnesty of Dec. 25, 1868) and United States v. Klein, 80 U.S. 128, 142 (1872) (upholding the President's power to “annex to his offer of pardon any conditions and qualifications he should see fit”).

Clemency's Justificatory Rhetoric

These decisions allow chief executives to grant clemency without any constitutional impediments. Both the President and state governors have complete discretion over to whom they will grant clemency and when. Austin Sarat and Nassar Husain say that this power is a form of “lawful lawlessness.”

Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 Stan. L. Rev. 1307, 1321 (2004).

This means that the power is authorized, but not regulated, by law.

Austin Sarat, Clemency Without Mercy, in Mercy on Trial 98–9, 140 (2009).

Because clemency cannot be justified by the usual democratic or legal norms, its legitimacy must lie elsewhere. The justificatory rhetoric that accompanies pardons and commutations of the kind that Trump granted seeks to secure such legitimation.

Sarat, supra note 94.

It works to domesticate the clemency power, and establish its compatibility with democratic politics. Those who wield undemocratic power want to legitimate it by addressing the background expectations of the political and legal culture. Their justifications seek to soothe anxiety and quiet doubt, to repair the breach between America's desire for rule-governed conduct and the ungovernability of clemency.

Scholars have identified several different kinds of arguments that presidents have used to justify commutations and pardons. The first, as suggested by the language used by the Supreme Court is mercy. Daniel Kobil defines mercy-based clemency as “an act of judgment by one in a position of authority that reduces what is owed to achieve for society the benefits of benevolence or compassion.”

Daniel Kobil, “Should Mercy Have a Place in Clemency Decisions?” in Austin Sarat and Nasser Hussain, eds. Forgiveness, Mercy, and Clemency, 40 (2007).

Understood this way, mercy means giving an offender less than they deserve or less than a struct calculus of justice would require.

Linda Ross Meyer, The Merciful State 95 (2007).

The merciful disposition says, in effect, “This is what you deserve, but I will nonetheless reduce your punishment.”

As Daniel Markel puts it, mercy “refers primarily to leniency afforded to criminal offenders on the basis of characteristics that evoke compassion or sympathy but that are morally unrelated to the offender's competence and ability to choose to engage in criminal conduct.” See Daniel Markel, Against Mercy, 88 Minn. L. Rev. 1421 (2004).

Clemency, Elizabeth Rapaport argues, like “‘mercy,’ characterizes a judgment or action when a person with the power to exact punishment or payment declines to exact all or some of what he or she is entitled to exact. No wrongdoer or debtor has a right to such leniency—where a right to demand relief exists, clemency or mercy is neither asked nor can be granted.”

Elizabeth Rapaport, Retribution and Redemption in the Operation of Executive Clemency, 74 Chi-Kent L. Rev. 1501 (2000). Redemption is, of course, not the only foundation on which clemency can be based. Among other reasons for clemency are, as we have seen, considerations of justice, e.g. pardoning to correct miscarriages of justice, and principled opposition to an entire type of punishment, e.g. the death penalty.

A related kind of justificatory rhetoric links clemency to rehabilitation or redemption.

A redemptive approach to clemency treats “punishment ... as part of a dynamic process, at least potentially of transformation,” and links the use of executive clemency with rehabilitative goals.

Id. at 1528.

It focuses on the post-conviction lives of criminals. When chief executives consider clemency they take an interest in who prisoners become, and what they do, once their punishment has begun.

Among Trump's clemencies, there were a few cases where rehabilitative language was used to describe post-crime, but pre-punishment, character. For example, in a press statement issued on January 20, 2021, concerning James Austin Hayes IV, the Trump Administration notes that “Mr. Hayes cooperated immediately and extensively and disgorged all profits he earned in a related civil action.” White House Press Release, Statement from the Press Secretary Regarding Executive Grant of Clemency (Jan. 20, 2021), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grants-clemency-012021/.

“Redemptive clemency,” Rapaport argues, “may be deserved in the sense that it is earned but not owed ... .There are,” she continues again making the tie between a rehabilitative theory of punishment and clemency as redemption explicit, “at least two types of cases that exemplify post-conviction merit, rehabilitation and heroic service.”

Id. at 1523.

Prisoners who experience a moral transformation, acknowledge their wrongdoing, and give evidence of a desire to serve the community and reconcile with those they have harmed have a stronger case for clemency than those who do not regardless of the justness of their original conviction and sentence.

On the significance of this last factor see Stephen Garvey, Punishment as Atonement, 46 UCLA L. Rev. 1801 (1999).

Clemency as redemption “rejects the Manichean division of people into good and evil ... . From the redemptive perspective, free citizens are also mean, weak, selfish, and takers of bad risks. And transgressors, like the rest of us, have the potential for morally adequate lives and lives of high moral achievement.”

Rapaport, supra note 99, at 1530.

Finally, Rapaport notes that “Hope is also a redemptive criminal justice value: the example of clemency...would foster hope for release and reconciliation among those willing to take on the rigors of self-transformation.”

Id.

A third form of justificatory rhetoric that may accompany presidential pardons or commutations treats clemency as error correction. Rejecting redemption as a legitimate basis for clemency, advocates of “retributive” clemency argue that “... like the imposition of punishment, the remission of punishment must be administered in a principled, consistent fashion.”

See Daniel Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 Tex. L. Rev. 569, 575 (1991). Also Daniel Kobil, The Evolving Role of Clemency in Capital Cases, in Americas Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, 531–542 (James Acker, Robert Bohm, & Charles Lanier, eds., 1998).

The most extended example of this search for principle and consistency has been offered by Kathleen Dean Moore.

Moore, supra note 88.

Moore begins from the proposition that clemency is an archaic idea that needs to be refurbished to comport with constitutional democracy. She insists on the necessity of stripping away “all of the concepts left over from the seventeenth century—All the ‘acts of grace’ and ‘divine forgiveness’—and look at pardons operationally... .”

Id. at 91.

When we do so, she contends, what she calls the “close relationship” of pardons and punishment will be apparent.

Id. Linda Meyer provides a very different perspective on this issue as well as an important critique of retributivism when she contends that every act of punishment is also “a form of forgiveness.” See Linda Meyer, Forgiveness and Public Trust, 27 Fordham Urb. L.J. 1515, 1530 (2000).

If we grant the equivalence between pardon and punishment, Moore notes, we should expect that pardons, like punishment, need to be “justified by reasons having to do with what is just.”

Moore, supra note 88.

While Moore concedes that pardons sometimes “make exceptions to rules...when general presumptions are defeated by exceptional circumstances,”

Id. at 129.

she insists they can and should be disciplined. “In the American democracy,” Moore argues, “the pardon is not a gift from the sovereign and cannot be exempt, on that ground, from the need for justification.”

Id. at 91.

In her view the simplest and best justification for punishment is that it is “deserved.”

Id. at 92.

While there are other justifications, none are, as she sees it, as powerful as retribution.

Moore is a strict retributivist in the sense that she believes that helping to satisfy the demands of just desert is the primary basis on which modern clemency can be justified. As she says, “the only good and sufficient reason for pardoning a felon is that justice is better served by pardoning than by punishing in that particular case.”

Kathleen Dean Moore, Pardon for Good and Sufficient Reasons, 27 U. Rich. L. Rev. 281, 281 (1993).

Pardons are correctives for legal mistakes that put the commands of justice at risk. They help the law adhere, more closely than it otherwise could, to those commands.

She lists several principles that justify pardons. Pardons are allowed in order to correct the punishment of the innocent (those who stand convicted of a crime they “may not have committed”)

Id. at 286.

and of those who are “guilty under the law but are not morally blameworthy.”

Id. at 287.

They may be used when the punishment of a guilty and deserving offender is unduly severe or to prevent cruelty or relieve those whose suffering exceeds what they merit.

Moore, supra note 88, at 11.

In our legal system, a pardon is “a backup system that works outside the rules to correct mistakes, making sure that only those who deserve punishment are punished.”

Moore, supra note 114, at 284.

The final kind of justificatory rhetoric linked to clemency is utilitarian. Daniel T. Kobil and C.R. Snyman define utilitarian clemency as “a means to a secondary end or purpose” beyond just desert.

C.R. Snyman, Criminal Law (5th ed., 2008).

Utilitarian justifications for clemency treat it as a tool for achieving some other social or political end.

Kobil, supra note 106, at 592.

They treat clemency as a device to promote peace, reconciliation, and “healing.”

Washington's clemency proclamation is quoted in Karlyn Kohrs Campbell and Kathleen Hall Jamieson, Presidents Creating the Presidency: Deeds Done in Words, 111 (2008).

Examples include President Andrew Johnson 1868 pardon of 12,652 ex-Confederates after the Civil War

Id. at 593. Both Lincoln and Andrew Johnson issued amnesty to persons who had fought against the Union, so long as they took an oath to uphold the Constitution. Allen Pusey, Jan. 21, 1977: Carter Pardons Vietnam-Era Draft Dodgers, ABA (Jan. 1, 2014, 7:20 am) https://www.abajournal.com/magazine/article/jan._21_1977_carter_pardons_vietnam-era_draft_dodgers. Carter explicitly described his Executive Order 11967 as a tool to “bind the nation's wounds and to heal the scars of divisiveness.”

and President Jimmy Carter's 1976 blanket amnesty of Vietnam War draft dodgers in 1976.

Andrew Glass, President Carter Pardons Draft Dodgers, Politico (Jan. 21, 2018, 06:30 AM) https://www.politico.com/story/2018/01/21/president-carter-pardons-draft-dodgers-jan-21-1977-346493.

Finally, Margaret Colgate Love identifies a subset of utilitarian pardons which are justified in terms of what she calls “operational considerations,” which includes pardons granted to reward people for aiding a governmental investigation.

Margaret Love, Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to Be Merciful, 27 Fordham Urb. L.J. 1483, 1490 (2000).

The Decline of the Rehabilitative Ideal and the Rise of Retributive Clemency

Throughout most of the twentieth century, the rehabilitative ideal dominated American thought about crime and punishment and also played a prominent role in thinking about clemency.

Francis Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (1981).

Former Supreme Court Justice Hugo Black, writing in 1949, called it the “prevalent modern philosophy of penology ... . Reformation and rehabilitation of offenders have,” he said, “become important goals of criminal jurisprudence.”

See Williams v. New York, 337 US 241, 247–49 (1949).

Black noted that rehabilitation's purpose was not to make the “lot of offenders harder. On the contrary, a strong motivating force ... has been the belief that by careful study of ... convicted offenders could be less severely punished and restored sooner to complete freedom and useful citizenship.”

Id.

Rehabilitative punishment was, in Black's mind, linked to mercy and mercy in turn was linked to a social project that criminologist David Garland calls “penal welfarism.”

David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 36 (2001).

According to the 1976 Report of the Committee for the Study of Incarceration, rehabilitation emerged from “a humanistic tradition which, in pressing for ever more individualization of justice ... demanded that we treat the criminal, not the crime.”

See Andrew Von Hirsch, Doing Justice: The Choice of Punishments, 29 (1976).

It relies, the report continued, “upon a medical and educative model, defining the criminal as, if not sick, less than evil ... . As a social malfunctioner, the criminal needs to be ‘treated’ or to be reeducated, reformed, or rehabilitated.”

Id. See also Karl Menninger, The Crime of Punishment, (1969).

With this attention to the criminal and their humanity, rehabilitation seems compatible with, if not directly nurturing of, a merciful disposition.

Rehabilitative theories were embodied in indeterminate sentencing schemes in which judges would sentence those convicted of crimes to a range of prison time, leaving determination of the exact amount of time served to parole boards whose job it would be to carefully monitor the inmates’ progress on the road to reform.

For a description and critique of the practices of indeterminate sentencing, see Marvin Frankel, Criminal Sentences: Law Without Order, (1976).

In addition, they were reflected in the internal organization of prisons where education, work, and therapy provided much of the day-to-day activity of the convict population.

See, e.g., Keally McBride, Hitched to the Post: Prison Labor, Choice, and Citizenship, 30 Stud. L., Pol. & Society 107 (2004).

Finally, they shaped a widespread belief in the “redemptive theory of clemency.”

Rapaport, supra note 99, at 1501.

If the rehabilitative ideal, and the redemptive theory of clemency, were indeed important throughout a large part of the twentieth century, by the late 1960s both were on the verge of a dramatic and massive repudiation.

Id. at 1506–7.

Fueled by philosophical criticisms from both conservatives and liberals, and the mobilization of crime and punishment as national political issues during presidential elections from 1968 through the end of the century, leniency, mercy, rehabilitation, and redemption were discredited and largely abandoned in a massive reorientation of the American penal system.

Tougher sentencing laws in the form of mandatory minimums for a variety of crimes increased the severity of punishments across the board, created more draconian conditions in prisons, and increased use of the death penalty. These are all symptoms of a society “governed through crime.”

See Jonathan Simon, Governing Through Crime: The War on Crime and the Transformation of American Governance, 1960–2000 (2009).

Against a background of urban disorder and rising crime rates, “law and order” by the late 1960s had become the watchword of the day for politicians seeking to turn the stark sociological facts about crime to partisan advantage. As James Whitman argues,

American punishment practices are largely driven by a kind of mass politics that has not succeeded in capturing Western European state practices. We have ... ‘popular justice’ and indeed populist justice. The harshness of American punishment is made in the volatile and often vicious currents of American democratic electioneering. Calling one's opponent ‘soft on crime’ has become a staple of American campaigning and...and this has had a powerful, often a spectacular, impact on the making of harsh criminal legislation in the United States.

James Whitman, Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe, 14–15 (2003).

Since the middle of the last century, criminal justice populism has altered the way presidents and state governors explain and justify grants of clemency. Today the prevailing cultural commonsense holds that we need to punish severely in order for punishment to be effective and that mercy should be greatly limited in order to ensure criminals are not released from prison “far too soon.”

Since the claim that punishment is now too lenient is embedded in cultural understandings rather than experience with crime, the implication that we are not now imposing enough punishment, is a cultural tenet, a value judgement, not subject to empirical refutation. See Stuart A. Scheingold, The Politics of Law and Order: Street Crime and Public Policy, 226–27 (2011). Thus, incontestable documentation that the United States is unrivaled among western democracies in severity of sentences and time served for criminal violence is ignored or deemed irrelevant.

At the heart of these beliefs is the view that the criminal justice system in the past was overly solicitous of defendants’ rights and too lenient in responding to crime. Due to the war on crime, chief executives themselves act like prosecutors, “exercising executive discretion to sustain and maintain punishments by denying clemency or parole, signing a death warrant, or seeking to protect the death penalty.”

The War on Drugs shifted penal philosophy, encouraging executives to crack down on sentencing, and reduce their use of clemency for rehabilitative and mercy reasons, only focusing on retributive justifications, see Simon, supra note 135, 71.

So our prisons fill up, our death rows expand, the rate at which clemency is granted declines, and our understanding of what we are doing with those we punish shifts from rehabilitation and redemption to other harsher theorizations of punishment.

The attack on mercy and the rehabilitative ideal has also been seen in a flourishing industry of academic criticism. Since the late 1960s, academic critics on both the right and the left have voiced various worries about rehabilitation—that it depends on lodging discretionary authority in sentencing judges and that discretion was often associated with disparity and discrimination;

See Von Hirsch, supra note 129, at 29. “The most obvious drawback of allowing wide-open discretion....is the disparity it permits....”.

that it is too lenient and, as a result, ineffective in preventing recidivism;

Robert Martinson, What Works? Questions and Answers About Prison Reform, 10 Pub. Interest 22 (1974). As Von Hirsch argues, “In our day-to-day experience, and in our preliminary research findings, it seemed that rehabilitation was far less often achieved than our predecessors would have believed.... Despite every effort and every attempt, correctional treatment programs have failed.” See Von Hirsch, supra note 129, at 32, 38.

and/or that it does not deal adequately with the underlying social causes of crime.

See, e.g., Jessica Mitford, Kind and Usual Punishment; The Prison Business, (1973).

Critics called for reforms to cure one or another of these defects. Some advocated an end to rehabilitation in the hope that doing so would result in shorter prison sentences for fewer people.

Von Hirsch, supra note 129.

Others pushed for approaches to punishment that would result in longer sentences for more offenders and a different attitude toward clemency.

See Ernest van den Haag, Punishing Criminals: Concerning a Very Old and Painful Question (1975).

Rapaport asserts that, by the end of the twentieth century, the ethos of neoretributivism

Rapaport, supra note 99, at 364.

eclipsed that of rehabilitation. Adherents to this philosophy advocated not for harsh sentencing necessarily, but rather for what they saw as objectivity in the pursuit of justice.

Samuel T. Morrison, The Politics of Grace: On the Moral Justification of Executive Clemency, 9 Buff. Crim. L.Rev.1, 1–138 (2005).

They looked to clemency as another venue in which to rectify wrongs and redress unfairness in and of the criminal justice system. Just as retribution gained traction elsewhere from the mid-20th century onwards, it took over as the dominant, often the exclusive, grounds for commuting or pardoning offenders.

Rapaport, supra note 99, at 361.

If mercy-based clemencies are presented as distributing undeserved leniency, and redemptive/rehabilitative clemencies focus on post-sentencing changes in offenders, retributive justifications treat clemency as error correction.

Use of Retributive Rhetoric in Recent Presidencies

Recent presidents have embraced such retributive language in their efforts to justify commutations and pardons, often saying that such acts were necessary to serve the ends of justice, fairness and equality. Examples include President Clinton's pardon of 16 Puerto Rican nationalists who were FALN members, Marc Rich and Pincus Green, and Edgar and Vonna Jo Gregory. FALN, or the Armed Forces of National Liberation, was a terrorist group focused on independence for Puerto Rico.

Debra Burlingame, The Clintons’ Terror Pardons, Wall St. J., Feb. 12, 2008, https://www.wsj.com/articles/SB120277819085260827.

FALN had been linked to 146 bombings and 9 deaths by 1996, and the 16 members granted clemency by Clinton had been convicted “on a variety of charges that included conspiracy, sedition, violation of the Hobbes Act” and “armed robbery.”

Id.

Clinton explained that clemency for the 16 FALN members was justified because they faced “extremely lengthy sentences” and that their “punishment should fit the crime.”

Charles Babington & David A. Vise, Clinton Explains Clemency Decision, Wash. Post, Sept. 22, 1999 https://www.washingtonpost.com/wp-srv/politics/daily/sept99/clinton22.htm.

He claimed that he granted them clemency because they agreed to renounce violence.

Id.

Marc Rich and Pincus Green, leading commodity traders, were charged with “51 counts of tax evasion, racketeering, and fraud” for evading $48 million in income taxes and illegally buying oil from Iran.

Eric Berg, Marc Rich Indicted in Vast Tax Evasion Case, N.Y. Times, Sept. 20, 1983, https://www.nytimes.com/1983/09/20/business/marc-rich-indicted-in-vast-tax-evasion-case.html.

During his prosecution, Marc Rich fled the US and went to Switzerland.

Eric Lichtblau & Davan Maharaj, Clinton Pardon of Rich a Saga of Power, Money, Chi. Trib., Feb. 18, 2001 https://www.chicagotribune.com/sns-clinton-pardons-analysis-story.html.

Edgar and Vonna Jo Gregory were convicted in 1982 of charges related to stealing $800,000 from an Alabama bank and causing it to go bankrupt.

Jeffrey McMurray, Pardons of Tenn. Couple Questioned, Wash. Post, Mar. 3, 2001 https://www.washingtonpost.com/archive/politics/2001/03/03/pardons-of-tenn-couple-questioned/ba5fcf39-eba4-4898-a276-520ea70f15b2/.

The case and subsequent clemency garnered controversy because it was supported by Tony Rodham, Sen. Hillary Rodham Clinton's brother, who had been a “paid consultant for the company since 1997.”

Id.

Rich and Green were two of President Clinton's final pardons, and in response to the criticism over these pardons, he wrote a New York Times op-ed called “My Reasons for the Pardons.”

James Rogan, Blame Clinton, Not the Power to Pardon, L.A. Times, Mar. 16, 2001 https://www.latimes.com/archives/la-xpm-2001-mar-16-me-38470-story.html.

There he questioned whether Rich and Green ever committed tax evasion and mentioned that the two men had already paid roughly $200 million in fines.

Id.

At the end of his op-ed, he claimed to have pardoned them in the “best interest of justice.”

William Jefferson Clinton, My Reasons for the Pardons, N.Y. Times, Feb 18, 2001, https://www.nytimes.com/2001/02/18/opinion/my-reasons-for-the-pardons.html.

Clinton's successor, George W Bush pardoned 189 people and commuted 11 sentences between 2001 and 2009.

Pardons Granted by President George W. Bush (2001–2009), U.S. Dep’t of Just., https://www.justice.gov/pardon/pardons-granted-president-george-w-bush-2001-2009 (last visited Oct. 16, 2021).

Like President Clinton, Bush didn’t grant clemency to a single petitioner in his first two years of presidency, even though the number of requests were at an all-time high.

Clemency Statistics, U.S. Dep’t of Just, https://www.justice.gov/pardon/clemency-statistics#w-bush (last visited Oct. 16, 2021).

When he did exercise his clemency power he generally did so on retributive grounds as he had when he commuted or pardoned people in his previous role as governor of Texas. In Bush's own words, when he considered clemency he “would ask: is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?”

George W. Bush, A Charge to Keep (1999).

Bush claimed that clemency only should be used as “a failsafe, one last review to make sure that there is no doubt the individual is guilty… I don’t believe my role is to replace the verdict of the jury … .”

Id. at 148.

Bush relied on a retributive justification to explain his most controversial pardon: “Scooter” Libby. In July, 2007 he emphasized the unfairness of Libby's punishment stating: “I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison.”

Statement on Granting Executive Clemency to I. Lewis Libby, Authenticated U.S. Government Information (GPO), July 9, 2007, https://www.govinfo.gov/app/details/WCPD-2007-07-09/WCPD-2007-07-09-Pg901.

Retributive justifications played a large role in the 1715 commutations and 2132 pardons issued by President Barack Obama.

Clemency Statistics, U.S. Dep’t of Just., https://www.justice.gov/pardon/clemency-statistics#obama (last visited Oct 16, 2021).

Among his most controversial clemencies was the commutation of Chelsea Manning's sentence. Manning, a former United States Army soldier and whistleblower disclosed to WikiLeaks nearly 750,000 classified or sensitive military and diplomatic documents.

Scott P. Johnson, President Donald J. Trump and the Potential Abuse of the Pardon Power, 9 Faulk. L. Rev. 301, 301(2018).

President Obama shortened her 35-year sentence, which was by far the longest punishment ever imposed in the U.S. for a leak conviction, to a mere 7 years.

Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. Times, Jan. 17, 2021, https://www.nytimes.com/2017/01/17/us/politics/obama-commutes-bulk-of-chelsea-mannings-sentence.html.

Critics denounced the commutation, complaining that “soft” sentencing for leakers might encourage Russian interference and hacking.

Jennifer Rubin, Obama's Grave Misstep: Commuting Manning's Sentence, Wash. Post, Jan. 18, 2017, https://www.washingtonpost.com/blogs/right-turn/wp/2017/01/18/obamas-grave-misstep-pardoning-manning/.

During a question and answer session with journalists, President Obama responded in retributive terms: “Chelsea Manning has served a tough prison sentence … the sentence that she received was very disproportional … I feel very comfortable that justice has been served.”

Office of the Press Secretary, Remarks by the President in Final Press Conference, (Jan. 18, 2017), https://obamawhitehouse.archives.gov/the-press-office/2017/01/18/remarks-president-final-press-conference.

And in a 2017 Harvard Law Review article describing a president's role in advancing criminal justice reform through different avenues, including the executive clemency power, Obama wrote that he “worked to reinvigorate the clemency power and … restore a degree of justice, fairness, and proportionality to the system.”

Barack Obama, The President's Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811 (2017).

Trump's Clemency Justifications

Former President Trump granted 238 clemencies to a total of 231 individuals; four of whom were both pardoned and commuted, and three of whom were commuted twice. In the sources we examined, he offered a total of 634 justifications for 227 of his grants of clemency. He offered no justifications for eleven of his clemencies.

We examined all justificatory statements supplied by the White House Press Secretary.

We did not include the Pardon Attorney Statements because they are only templates that are reused, only changing to fill in the name of the person receiving clemency and their sentence. They are signed by the President with generalized language that do not tailor justifications to any individual case. Additionally, we looked through many TV, newspaper, and radio interviews, as well as transcripts from Trump's rallies. However, we did not include them in our analyzes because there is no comprehensive list of all of these events, and we could not be sure we looked at every interview, rally, etc. We opted to focus on datasets we were sure were complete. Within our chosen media, we found several statements where Trump mentioned the unfairness of a trial or prosecution for someone to whom he would eventually grant clemency, without specifically mentioning clemency or responding to a question about clemency. We included these types of statements, we included these types of statements only if they came within a year of the eventual clemency.

Additionally, we used the HeinOnline database to examine all statements, speeches, press conferences, press releases, proclamations, executive orders, acts approved by the President and “many more documents” released by the White House.

US Presidential Library, Heinonline, https://home.heinonline.org/content/u-s-presidential-library/.

We also studied all the tweets relating to clemency from three twitter accounts: @Whitehouse45, and @TrumpWarRoom. @RealDonaldTrump.

@RealDonaldTrump was Trump's personal twitter account that he used throughout his campaign and presidency until it got suspended on January 6th. @WhiteHouse45 is the official account of the Trump Administration and @TrumpWarRoom is the official account for the Trump 2020 re-election Campaign.

In total, we identified justifications in 211 official press statements, 34 tweets from @RealDonaldTrump, 10 tweets from @WhiteHouse45, 2 from @ TrumpWarRoom, and 52 in statements to the press, speeches or remarks with reporters. These 311 statements contained 634 separate justifications.

In order to search the databases and Twitter accounts for Trump's clemency justifications, we created a list of search terms to standardize our searches across mediums. This included all the first name, last names, combination of first and last names, and a series of key terms in a document, including “clemency,” “commutation,” “pardon,” among others specific to clemency recipients. This list is in the appendix.

Not all of Trump's justificatory statements fit into the four categories—mercy, redemptive/rehabilitative, retributive, utilitarian—that we discussed above. We identified two other categories in addition to the widely accepted ones which we labelled “evidence of smooth re-entry” and “character” related. While rehabilitative rhetoric often references character, much of Trump's character-based language was not linked to a post-sentencing change in behavior. For example, Trump described one person he pardoned as “a pillar of his community” and another as someone who “has no documented history of violence” and “who simply stumbled along life's path and made a mistake.”

White House Statement, President Trump Commutes Sentence of Ted Suhl, (July 29, 2019), at https://trumpwhitehouse.archives.gov/briefings-statements/president-trump-commutes-sentence-ted-suhl/.

President Trump pardoned Theodore E. Suhl on July 29, 2019. Mr. Suhl participated in a bribery scheme in order to increase Medicaid payments to his company, and was sentenced to seven years in prison. The statement describes him as a “a pillar of his community before his prosecution and a generous contributor to several charities”; White House Statement, Statement from the Press Secretary Regarding Executive Grants of Clemency, (Oct. 21, 2020), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grants-clemency-102120/.

On October 21, 2020 President Trump issued a press statement commuting the sentence of John Bolen, a small business owner who transported cocaine from the Bahamas to Florida. The statement notes that he has “no documented history of violence” and “simply stumbled along life's path and made a mistake”.

These statements suggest the crime was an aberration in the life of an otherwise upstanding person, not that they had rehabilitated or redeemed themselves. Additionally, we found many statements that someone to whom he granted clemency “has a supportive family and church” or has “widespread support from their neighbors.”

White House Statement, Statement from the Press Secretary Regarding Executive Grants of Clemency, (Jan. 20, 2021), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grants-clemency-012021/; On January 20, 2021 the Trump Administration issued a statement regarding the commutation granted to April Coots, who was convicted of a non-violent drug offense. The Press Secretary notes that “Importantly, Ms. Coots has a supportive family and church community that will help her transition and create a stable network for her post-incarceration”; White House Statement, Statement from the Press Secretary Regarding Executive Clemency for Dwight and Steven Hammond, (July 10, 2018), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-clemency-dwight-steven-hammond/; Dwight and Steven Hammond were convicted in association with a fire that leaked onto a portion of neighboring public grazing land. The Trump Administration's July 10, 2018 press statement describes their “widespread support from their neighbors”.

We disaggregated Trump's retributive statements into three subcategories: excessive punishment, claims of innocence, and unfair process. Excessive punishment justifications contend that the sentence was disproportionate to the crime. Others suggest that the person who received clemency would have gotten a lower sentence if tried today or that they should have never been prosecuted in the first place, or that other people who committed the same crime were not given the same sentence.

This final reason was used many times with the Mueller pardons. Notably, Trump claimed that “General Michael Flynn's life can be totally destroyed while Shadey James Comey can Leak and Lie and make lots of money from a third rate book” 4/20/18 tweet from @RealDonaldTrump.

Trump also often used the phrase “treated unfairly” without further explanation of whether he was referring to the investigation, the sentence, the trial, or something else entirely. We categorized such general statements under excessive punishment.

Innocence claims assert that the clemency recipient did not commit the crime for which they were convicted. This includes claims that the trial never should have happened, or they were wrongly convicted. We put justificatory rhetoric that referenced the “Witch Hunt” or the “Mueller Scam” under this category because Trump used those terms to justify his clemencies on the grounds that the people targeted were actually innocent.

Unfair process justifications suggest that some part of the investigation, trial, or sentencing process was suspect, such as a tainted jury pool, evidence that should not have been admitted, and prosecutorial misconduct.

We also disaggregated redemptive/rehabilitative justifications. We identified instances when Trump said that a person had accepted responsibility, had acknowledged wrongdoing or had expressed remorse.

Trump often justified pardons by reference to particular redemptive actions that people to whom he granted clemency performed during or outside of prison. This included teaching others or educating themselves while in prison, supporting their community or family outside of prison, or becoming a person of faith.

This is distinguished from character-related justifications because it is an action they started doing post crime, not a characteristic they’ve always embodied.

In what follows, we first report on the overall composition of Trump's clemency justifications. Next, we analyze the breakdown of those justifications by crime type, medium of statement, time during Trump's term when they were granted, pardon attorney recommendation,

Data sourced from Goldsmith and Gluck, in their spreadsheet titled Trump's Aberrant Pardons and Commutations Chart. Further explanation of their methods is detailed in the following pages, in the section Recommended by Pardon Attorney.

and association with the Mueller investigation.

In this category we included justifications for clemency granted to five people: General Michael Flynn, George Papadopoulos, Paul J. Manafort, Roger J. Stone, and Alex Van Der Zwaan.

Of the 634 justifications offered by Trump for his clemencies

38.8% (246) were retributive

33.8% (214) were rehabilitative

17.7% (112) were character-based

5.7% (36) referenced smooth re-entry

2.4% (15) referenced mercy

1.7% (11) were utilitarian

Figure 1

Trump's Clemency Justifications.

While Trump's use of retributive justifications continued the trend set by his predecessors, he broke with their recent tendency to eschew using redemption/rehabilitation to explain clemency grants.

Below, we will show that much of Trump's retributive rhetoric was used when he gave scripted and unscripted comments to the press. For example, in prepared remarks to reporters aboard Air Force One on August 7th, 2019, Trump explained why he commuted the sentence of former Illinois governor, Rod Blagojevich by saying that “You have drug dealers that get not even 30 days, and they’ve killed 25 people. They put him in jail for 18 years, and I think it's very unfair.”

Administration of Donald J. Trump, 2019 Remarks and an Exchange With Reporters Aboard Air Force One, Daily Compilation of Presidential Documents 1 (2019).

Blagojevich had been sentenced to 168 months in prison for soliciting bribes to fill Barack Obama's old senate seat. Trump commuted his sentence to time served, plus two years of supervised release and the remaining balance of his $20,000 fine. Trump's justification minimized Blagojevich's crime and suggested that he shouldn’t be punished any further because he had already served more prison time than he deserved.

Of the 246 retributive justifications Trump offered for his clemencies the majority (57.3%) followed the Blagojevich pattern, referencing excessive punishment. 24.4% involved claims of unfair process, and 18.3% referenced claims of innocence.

Figure 2

Composition of Retributive Justifications.

In many cases, Trump offered more than one kind of retributive justification. This is evidenced in the official White House press statement about clemency for Paul Erickson who, while charged with wire fraud and money laundering, was involved with the Trump campaign's Russia connections.

Carrie Johnson & Philip Ewing, Paul Erickson, Boyfriend of Russian Agent Maria Butina, Charged in Fraud Scheme, NPR, Feb. 6, 2019 https://www.npr.org/2019/02/06/687417296/paul-erickson-boyfriend-of-russian-agent-maria-butina-charged-in-fraud-scheme; Nicholas Fandos, Operative Offered Trump Campaign ‘Kremlin Connection’ Using N.R.A. Ties, N.Y. Times, Dec 3, 2017, https://www.nytimes.com/2017/12/03/us/politics/trump-putin-russia-nra-campaign.html. Sioux Falls Man Sentenced for Wire Fraud and Money Laundering, United States Attorneys Off., Dist. S. Dakota (July 6, 2020), https://www.justice.gov/usao-sd/pr/sioux-falls-man-sentenced-wire-fraud-and-money-laundering-1. Journalists note Erickson's relationship with Russian agent Maria Butina, as well as evidence that he attempted to facilitate a back-channel meeting between Trump and Putin. The Trump Administration's Press Statement blames his wire fraud conviction, for which he was found to have lied to his investors, on an association with Russia.

That statement emphasized both the excessiveness of Erickson's sentence and the fact that he should not have been prosecuted at all. “Although the Department of Justice sought a lesser sentence,” Trump said, “Mr. Erickson was sentenced to 7 years’ imprisonment—nearly double the Department of Justice's recommended maximum sentence … .”

White House Statement, Statement from the Press Secretary Regarding Executive Grants of Clemency, (Jan. 20, 2021), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grants-clemency-012021/.

Additionally, Trump pointed out that “Mr. Erickson's conviction was based off the Russian collusion hoax.”

Id.

Among the 214 rehabilitative justifications that Trump offered for his clemencies, 76.2% referencing post-sentence redeeming behavior while 23.8% referenced accepting responsibility by the person whose sentence Trump commuted or pardoned

Figure 3

Composition of Rehabilitative Justifications, split between acceptance of responsibility and redeeming behavior.

In a statement from the White House Press Secretary, Trump announced that he had commuted the sentence of Adrianne Davis Miller. Miller struggled with drug addiction, but had no previous federal charges before she pleaded guilty to possession and intent to distribute methamphetamine.

Margaret Anne Davis, Clemency for Adrianne Davis Miller serving 15 years for a NON-VIOLENT Drug Conspiracy, Change.org, https://www.change.org/p/donald-trump-clemency-for-adrianne-davis-miller-serving-15-years-for-a-non-violent-drug-conspiracy.

Miller was sentenced to fifteen years, but Trump commuted her sentence to time served with three years of supervised release. In so doing he emphasized the fact that Miller “is extremely remorseful ... has taken full responsibility for her actions.”

Id.

Additionally, Trump listed steps she took to change her life including taking “numerous courses including drug education, life management, and has participated in the Life Connections Program” and has “fully committed to rehabilitation.”

Id.

The Medium and the Message

President Trump's use of social media, specifically Twitter, was unique among previous presidents.

President Trump's use of Tweets represents a new development in presidential forms of communication, similar to the development of Fireside Chats by Roosevelt and Television Communication by Ronald Reagan, See Vincent Wardynski The Social Media Era President, 1 U. Cent. Fla. Dept Legal Stud. L.J. 13 (2018).

Many commentators have criticized the uncensored and unconventional way he used Twitter,

Michael D. Shear, How Trump Reshaped the Presidency in Over 11,000 Tweets, N.Y. Times (Nov. 2, 2019), Fernando R. Laguarda, Think of an Elephant: Tweeting as Framing Executive Power, Legislation & Policy Brief 8 (2018): 32–52; Brian Monahan & R.J. Maratea, The Art of the Spiel: Analyzing Donald Trump's Tweets as Gonzo Storytelling, 44 Symbolic Interaction 699 (Jan. 18, 2021), https://doi.org/10.1002/symb.540.

and such characteristics were also apparent in his tweets justifying clemencies, such as one tweet explaining his pardon of Kristian Saucier. In 2016, Saucier was sentenced to 1 year imprisonment and 3 years supervised release for illegal storage of classified photos as a Navy sailor.

Ryan Lucas, Trump Pardons Ex-Navy Sailor Sentenced for Photos of Submarine, NPR, Mar. 9, 2018, https://www.npr.org/2018/03/09/592440282/trump-pardons-ex-navy-sailor-sentenced-for-photos-of-submarine.

According to court documents, Saucier “used his personal cell phone to take six photos of classified areas, instruments, and equipment in the sub” and then “destroyed a computer, camera, and memory card” after being questioned by the FBI.

Id.

After Saucier completed his prison term, Trump granted him a full and unconditional pardon.

White House Press Briefing, Press Briefing by Press Secretary Sarah Sanders, (9 Mar., 2018) at https://trumpwhitehouse.archives.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-030918/ (last visited Oct. 8, 2021).

Justifying that pardon, Trump tweeted, “Remember what they did to the young submarine sailor, but did nothing to Crooked Hillary. I ended up pardoning him - it wasn’t fair!”

Trump Twitter Archive, https://www.thetrumparchive.com/?searchbox=%22young+submarine+sailor%22&results=1 (last visited Oct. 8, 2021).

In the same tweet he said “Washed up Creepster John Bolton is a lowlife who should be in jail,”

Id.

while Saucier should not be. This aggrieved, aggressive, retributive language is very different from the character-based justification found in the official press statement, where Trump asserted that “Mr. Saucier's offense stands in contrast to his commendable military service.”

White House Press Briefing, Press Briefing by Press Secretary Sarah Sanders, at https://trumpwhitehouse.archives.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-030918/ (last visited Oct. 8., 2021).

In fact, we found that the way Trump talked about clemency depended on the medium of communication he used.

We first divided up the 634 statements across six different mediums: three Twitter accounts, official press statements, scripted remarks from HeinOnline, and unscripted remarks from HeinOnline. “Scripted” remarks include speeches and other prepared remarks and “unscripted” remarks include responses to reporter questions and other spontaneous commentary. We then recorded what type of justification that was included in each statement. One example of a justification occurring during reporter questioning would be a retributive justification for Roger Stone. During a Q&A a reporter asked President Trump “Can you-you seemed, from your tweet today, that you were upset about the Roger Stone sentencing. Did you… ask the Justice Department to change that?” We categorized his following response as an unplanned, or unofficial remark on Roger Stone's impending pardon.

He was most prone to offer retributive justifications on his personal Twitter at 79.5%, followed by unscripted remarks at 73.6%, and scripted speeches at 52.6%. In fact, out of the 130 justifications Trump provided in unscripted remarks and tweets, only 3 were rehabilitative. The other 99 were retributive. In contrast, in press statements Trump offered rehabilitative justifications far more than retributive ones. We found this same pattern in statements released on @WhiteHouse45 and @TrumpWarRoom.

We then collapsed the six mediums into two categories: unofficial justifications (@RealDonaldTrump, unscripted remarks) and official (all others). The difference between rehabilitative and retributive justifications was most notable, Official statements were more rehabilitative (41.8%) and less retributive (29.1%), while unofficial statements were significantly more retributive (75.6%) and less rehabilitative (2.3%).

Distribution of justifications across Medium of Statement.

White House Press Statement Tweet from @White-house45 Tweet from @Trump-WarRoom Tweet from @Real-Donald Trump Scripted Speeches and Planned Remarks Unscripted Interviews and Remarks Total
RETRIBUTIVE 119 8 0 35 20 64 246
REHABILITATIVE 185 11 6 1 9 2 214
CHARACTER 81 0 0 5 8 18 112
UTILITARIAN 7 2 0 0 0 2 11
SMOOTH RE-ENTRY 36 0 0 0 0 0 36
MERCY 11 0 0 2 1 1 15
Total 439 21 6 43 38 87 634
Timing

Donald Trump's Twitter was suspended on January 6, 2021. As a result, he was forced to justify his remaining clemencies without using this mode of communication. Additionally, we found no unscripted remarks offering clemency justifications after this date. This is especially important because presidents, like other chief executives, are known to save grants of clemency for the end of their term when they would no longer be vulnerable to political criticism for doing so.

Trump followed this trend by signing fully one half of his clemencies in his last two days in office. In fact, only 18% (44) of Trump's clemency grants occurred before the November, 2020 election. From January 20, 2017 to January 6 of 2021, Trump granted clemency 94 times, and from January 6 to January 20, 2021, he granted 144 more. 85% of Trump's retributive justifications were offered before January 6, 2021 while the majority of his rehabilitative justifications, 55%, were offered after that date. 91% of justifications citing evidence of smooth entry were given after January 6, while 80% of character related justifications were given before that date.

Distribution of justifications between Pre and Post January 6th.

Pre-January 6th Post-January 6th
RETRIBUTIVE 202 44
REHABILITATIVE 91 123
CHARACTER 74 38
UTILITARIAN 7 4
SMOOTH RE-ENTRY 3 33
MERCY 12 3
Total 399 245
Type of Crime

Mark Osler claims that Trump's early clemencies were granted nearly exclusively to “celebrities, [those] connected to him by friendship, or both.”

Osler, supra note 19.

Colton Brown argues that his pardons followed a “pattern of rewarding people popular with his supporters or those who have spoken glowingly of [Trump],”

Brown, supra note 40, at 43.

and Gluck and Goldsmith claim that “almost all the beneficiaries of Trump's pardons and commutations have had a personal or political connection to the president.”

Gluck & Goldsmith, supra note 21.

Those who have close ties to the President of the United States are likely to have committed certain kinds of crimes and not others, especially white collar crimes and/or obstruction of justice.

To explore this pattern, we analyzed the justifications Trump used for granting clemency in different kinds of crimes: Financial, Drug, Crimes Against Person, Crimes Against Property, Obstruction of Justice, and Other.

We relied on Justia's “types of Criminal Offenses” to categorize crime types. Their list can be found here: https://www.justia.com/criminal/offenses/. We also aggregated crime types into White Collar (Financial & Obstruction) and Street Crime (Drug, Crime Against Property, Crime Against Person), and divided Other accordingly (We considered the illegal hunting of migratory birds, the possession of a firearm by a felon, illegal sale of firearms, wildlife smuggling, lying on a government form to obtain a firearm, operation of off-road vehicle on public lands closed to off-road vehicles, possession of firearm silencer without serial number, and possession of machine gun to be Street Crime. We considered the leaking of classified information, violation of the Foreign Agents Registration Act, making false statements to the government, espionage, making false statements on a bank loan application, participating in an illegal gambling business, illegal voting, and conspiracy to access a protected computer without authorization to be White Collar Crimes.). We found that 69% of retributive rhetoric was used to justify white collar crimes, and 62% of rehabilitative rhetoric was used to justify street crimes.

We found that 66% of the time that Trump used retributive, error correction-type rhetoric was for those charged with either obstruction of justice or financial crimes.

Distribution of justifications across Type of Crime.

The total number of justifications increased from our original 634, since we counted the justification for all the crimes for which Trump granted clemency. In some cases, the same justification was used to pardon two or even three different crimes.

Obstruction Financial Drug Crime against Person Crime against Property Other Total
Retributive 116 69 38 27 17 11 278
Rehabilitative 9 68 103 8 20 13 221
Character Based 26 43 15 21 5 11 121
Utilitarian 3 2 0 3 2 1 11
Smooth Re-entry 0 4 29 0 2 2 37
Mercy/Sympathy 7 6 2 1 1 0 17
Total 161 192 187 60 47 38 685

For example, George Papadopolous was indicted in the Mueller investigation for pleading “guilty … to lying to the FBI about the timing of meetings with alleged go-betweens for Russia” in September of 2018.

George Papadopoulos: Ex-Trump Adviser Goes to Prison, BBC, Nov. 28, 2018, https://www.bbc.com/news/world-us-canada-46347887.

He was sentenced to 14 days imprisonment with 12 months of supervised release, 200 hours of community service, and fined $9,500.

Mark Mazzetti & Sharon LaFraniere, George Papadopoulos, Ex-Trump Adviser, Is Sentenced to 14 Days in Jail, N.Y. Times, Sept. 7, 2018, https://www.nytimes.com/2018/09/07/us/politics/george-papadopoulos-sentencing-special-counsel-investigation.html.

When he granted clemency, Trump claimed that Papadopoulos had committed no crime. He said, in a remark at a Fox News Town Hall, “And how about Papadopoulos? I didn’t know Papadopoulos, but what they put him through—he turned out to be totally—they had a tape of his conversation that was supposed to be-—this conversation was like a perfect conversation.”

“Administration of Donald J. Trump, 2020 Remarks and a Question-and-Answer Session at a Fox News Town Hall in Green Bay, Wisconsin,” Daily Compilation of Presidential Documents (2020): 12.

Interestingly, Trump distances himself from Papadopolous even as he is saying he did nothing wrong.

Nearly 50% of Trump's rehabilitative rhetoric was used to justify clemency for drug crimes, compared to only 13% of his retributive rhetoric. The pardon of Crystal Munoz exemplifies this point; In 2008, Crystal Munoz was sentenced to 15 years in prison and 5 years supervised release for conspiring to distribute marijuana.

Trump Grants Clemency to Crystal Munoz, Former Inmate Friends with Alice Marie Johnson, Associated Press, Feb. 20, 2020, https://www.nbcnews.com/news/us-news/trump-grants-clemency-crystal-munoz-former-inmate-friends-alice-marie-n1139786.

After she served 12 years, Trump commuted her sentence twice: first, shortening her prison term to time served

See Public Disclosure for Crystal Munoz, Commutations Granted by President Donald J. Trump (2017–2021), U.S. Dept of Just., https://www.justice.gov/pardon/commutations-granted-president-donald-j-trump-2017-2021 (last visited Oct. 16, 2021).

and later, ending her supervised release requirement.

Id. Trump did not offer separate justifications for these two separate acts of clemency.

He explained that she had “demonstrated an extraordinary commitment to rehabilitation” and “mentored people working to better their lives.”

White House Press Statement, Statement from the Press Secretary Regarding Executive Grants of Clemency (Feb. 18, 2020), at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretary-regarding-executive-grants-clemency-2/.

The use of redemptive/rehabilitative arguments in drug cases is also illustrated in the case of Alice Marie Johnson who in 1997 was sentenced to life imprisonment

See Public Disclosure for Alice Marie Johnson, Commutations Granted by President Donald J. Trump (2017–2021), U.S. Dept of Just., https://www.justice.gov/pardon/commutations-granted-president-donald-j-trump-2017-2021 (last visited Oct. 16, 2021).

for a nonviolent drug conspiracy, which was her first offense.

Jennifer Turner, Alice Marie Johnson Talks About Her Life Sentence, Getting Clemency, and Her Newfound Freedom, ACLU, Jun. 14, 2018, https://www.aclu.org/blog/smart-justice/sentencing-reform/alice-marie-johnson-talks-about-her-life-sentence-getting.

After serving nearly 22 years, President Trump first commuted her sentence to time served

See Public Disclosure for Alice Marie Johnson, supra note 208.

and later gave her a full and unconditional pardon.

While Trump did offer traditional justifications for Johnson's clemency, her case is unique because of Kim Kardashian West's advocacy for her case. Id.

In so doing Trump explained that Johnson had “accepted responsibility for her past behavior,” has “worked hard to rehabilitate herself in prison,” and has “acted as a mentor to her fellow inmates.”

White House Press Release, President Trump Commutes Sentence of Alice Marie Johnson, https://trumpwhitehouse.archives.gov/briefings-statements/president-trump-commutes-sentence-alice-marie-johnson/ (last visited Oct. 8, 2021).

Recommendations by Pardon Attorney

Bernadette Meyler claims that Trump wanted to avoid what he regarded as the “bureaucratic pardoning produced by the work of the Office of the Pardon Attorney.”

Trump's Theater of Pardoning, supra note 19.

Gluck and Goldsmith report that the OPA's criteria for clemency consideration include “post-conviction conduct,” the “seriousness and relative recentness of the offense,” and “acceptance of responsibility, remorse, and atonement.”

Gluck & Goldsmith, supra note 19, at 297.

Some of these criteria fit with a rehabilitative view of clemency. Thus, when Trump followed the Office of the Pardon Attorney's process, we would expect to see more rehabilitative justifications than when he did not.

To test this claim, we examined the correlations between Goldsmith and Gluck's categorizations of Trump's clemencies and the different justifications that Trump offered.

We tallied the justifications for each clemency and grouped them into Goldsmith and Gluck's four categories. We later decided to collapse the four categories into two: a “yes/probably” category and a “probably not/no” category. We made the decision to collapse the four groups because there was only one clemency in the “yes” category.

Overall, only 6.8% of Trump's clemency justifications occurred in cases involving the Pardon Attorney.

Distribution of justifications across Pardon Attorney Recommendation.

YES & PROBABLY NO & PROBABLY NOT Total
Retributive 8 238 246
Rehabilitative 30 184 214
Character Related 1 111 112
Utilitarian 1 10 11
Evidence of Smooth Re-entry 3 33 36
Mercy-Sympathy 0 15 15
Total 43 591 634

We found that all of the 15 mercy justifications Trump offered occurred in clemencies where the Office of the Pardon Attorney made no recommendation or made a negative one. Additionally, all but one of the character justifications and nearly 97% of retributive justifications were offered where the Pardon Attorney played no role in the process. A smaller number of the rehabilitative justifications were offered in such cases.

The Mueller Investigation

Trump offered many justifications for granting clemency to his allies and cronies who were convicted of crimes committed during the Mueller investigation.

Brown, supra note 40, at 47.

George Papadopulos, Michael Flynn, Roger Stone, and Alex Van Der Zwaan all made false statements in the course of that investigation.

Id.

Additionally, Stone and Paul Manafort were charged with obstruction of justice and witness tampering.

Id.

Because all of these crimes fall into the categories of obstruction or financial crimes, we expected the justifications offered for their clemencies to be retributive. An additional reason for such retributive justifications is that the Mueller investigation hit so close to home for Trump, given that it was “an inquiry into whether he obstructed justice during the investigation into Russia's interference in the 2016 election and its possible collusion with his team.”

Eric Lipton & Kenneth Vogel, In Trump's Pardons, Disdain for Accountability, N.Y. Times, Jan. 20, 2021, https://www.nytimes.com/2021/01/20/us/politics/trump-pardons-accountability.html.

To test the impact of the Mueller investigation on this claim, we examined the types of justifications offered for two groups of clemency recipients: the five men who were involved in the Mueller investigation and everyone else.

Distribution of justifications across involvement in the Mueller Investigation.

Mueller Non-Mueller Total
Retributive 96 150 246
Rehabilitative 0 214 214
Character Related 14 98 112
Utilitarian 0 11 11
Evidence of Smooth Re-entry 0 36 36
Mercy-Sympathy 5 10 15
Total 115 519 634

Notably, the great majority of justifications offered for Mueller related clemencies were retributive. The justifications Trump offered for Paul Manafort's clemency provide good examples of his use of retributive rhetoric. As President Trump put it in a statement on March 13, 2019, “Paul Manafort—the black book turned out to be a fraud. We learned that during the various last number of weeks and months. They had a black book that came out of Ukraine. It turned out to be a fraud. It turned out to be a fraud. They convicted a man; it turned out to be a fraud.”

Administration of Donald J. Trump, 2020 Remarks at a White House Coronavirus Task Force Press Briefing, Daily Compilation of Presidential Documents (2020): 23, https://heinonline.org/HOL/P?h=hein.fedreg/dcpd20277&i=23.

The remaining Mueller related clemencies were mercy or character related. None of them were justified in rehabilitative terms since doing so would have required Trump to acknowledge his associates’ guilt.

Conclusion

President Trump's 238 acts of clemency generated considerable controversy, but the justifications offered were quite conventional. He continued the retributive trend established by his predecessors. He did, however, resurrect rehabilitation as a clemency justification. However, here the medium mattered. When he spoke in his own voice, in speeches, tweets, and answering reporter questions, he was much more prone to make retributive arguments, to emphasize unfairness or injustice as a reason for clemency. And strikingly, the most frequent and emphatic use of retributive rhetoric was in the cases of clemency for people targeted by the Mueller investigation.

Perhaps these justifications were really aimed at clearing Trump's own name, for if the people targeted by Mueller were innocent or unfairly targeted, so was he. In this sense, as in many other arenas, Trump's clemencies were often as much about him as those whose sentences he commuted or the people he pardoned. As Trump put it in explaining why he pardoned Flynn: “The whole thing turned out to be a scam, and it turned out to be a disgrace to our country, and it was a takedown of a duly elected President.”

Administration of Donald J. Trump, 2020 Remarks in a Roundtable Discussion on the Positive Impact of Law Enforcement and an Exchange With Reporters, Daily Compilation of Presidential Documents 13 (2020).

Figure 1

Trump's Clemency Justifications.
Trump's Clemency Justifications.

Figure 2

Composition of Retributive Justifications.
Composition of Retributive Justifications.

Figure 3

Composition of Rehabilitative Justifications, split between acceptance of responsibility and redeeming behavior.
Composition of Rehabilitative Justifications, split between acceptance of responsibility and redeeming behavior.

Distribution of justifications across Pardon Attorney Recommendation.

YES & PROBABLY NO & PROBABLY NOT Total
Retributive 8 238 246
Rehabilitative 30 184 214
Character Related 1 111 112
Utilitarian 1 10 11
Evidence of Smooth Re-entry 3 33 36
Mercy-Sympathy 0 15 15
Total 43 591 634

Distribution of justifications across Medium of Statement.

White House Press Statement Tweet from @White-house45 Tweet from @Trump-WarRoom Tweet from @Real-Donald Trump Scripted Speeches and Planned Remarks Unscripted Interviews and Remarks Total
RETRIBUTIVE 119 8 0 35 20 64 246
REHABILITATIVE 185 11 6 1 9 2 214
CHARACTER 81 0 0 5 8 18 112
UTILITARIAN 7 2 0 0 0 2 11
SMOOTH RE-ENTRY 36 0 0 0 0 0 36
MERCY 11 0 0 2 1 1 15
Total 439 21 6 43 38 87 634

Distribution of justifications across Type of Crime. The total number of justifications increased from our original 634, since we counted the justification for all the crimes for which Trump granted clemency. In some cases, the same justification was used to pardon two or even three different crimes.

Obstruction Financial Drug Crime against Person Crime against Property Other Total
Retributive 116 69 38 27 17 11 278
Rehabilitative 9 68 103 8 20 13 221
Character Based 26 43 15 21 5 11 121
Utilitarian 3 2 0 3 2 1 11
Smooth Re-entry 0 4 29 0 2 2 37
Mercy/Sympathy 7 6 2 1 1 0 17
Total 161 192 187 60 47 38 685

Distribution of justifications between Pre and Post January 6th.

Pre-January 6th Post-January 6th
RETRIBUTIVE 202 44
REHABILITATIVE 91 123
CHARACTER 74 38
UTILITARIAN 7 4
SMOOTH RE-ENTRY 3 33
MERCY 12 3
Total 399 245

Distribution of justifications across involvement in the Mueller Investigation.

Mueller Non-Mueller Total
Retributive 96 150 246
Rehabilitative 0 214 214
Character Related 14 98 112
Utilitarian 0 11 11
Evidence of Smooth Re-entry 0 36 36
Mercy-Sympathy 5 10 15
Total 115 519 634
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