Can Biden Reboot the Presidential Pardon System After Trump? | Opinion

When Donald Trump's presidency ends at noon on January 20, 2021, President Joe Biden will be able to hit the restart button. He will immediately tackle the coronavirus and the economy, of course, but that is only part of his mandate. Even before the riot and Capitol breach on January 6, many also saw him as responsible for restoring the luster of the presidency lost during the Trump administration. One important way that Biden can restore respectability to the office would be to clean up the debris left by his predecessor's unorthodox clemency approach.

Alexander Hamilton wrote in Federalist #74 that presidential clemency should be granted in times of unrest to "restore the tranquillity of the commonwealth," or to address "unfortunate guilt." The Framers did not establish a direct penalty for clemency abuses, but they did rely on the impeachment clause as a general deterrent to abuse of power.

As president, Bill Clinton endured impeachment following an embarrassing sex scandal. His final hours in office were spent offering dozens of pardons and commutations to lucky recipients, ranging from a financier living abroad to evade prosecution (Marc Rich), to Clinton's former Whitewater business partner (Susan McDougal), to his own half-brother (Roger Clinton).

As part of his campaign to "restore honor and dignity" to the presidency, George W. Bush generally (excluding "Scooter" Libby) offered pardons and commutations in a conventional manner. As noted by former Pardon Attorney Margaret Love, the Department of Justice processed most of the clemency grants under Bush. He established a regular approach that, while far from perfect, led to 189 pardons and eleven commutations. Bush's mercy generally assisted average people and forgave older offenses. President Barack Obama's early clemency record was not particularly distinguished. During his second term, though, Obama used clemency in a truly unconventional manner: his clemency initiative for non-violent drug offenders serving unfairly long sentences contributed significantly to Obama's overall tally of 1,715 reduced sentences.

Like Clinton, Trump was both impeached and demolished long-standing clemency norms and practices. In fact, three disturbing clemency trends have emerged over the past four years. First, Trump largely disregards recommendations from the Pardon Attorney in the Department of Justice and relies instead on an informal group of advisors to perform a screening function for clemency applicants. This approach bypasses the bureaucratic apparatus already designed to both help the president identify worthy clemency recipients and prevent him from making a mistake.

Second, Trump generally uses pardons and commutations to curry favor from celebrities (for example, Kim Kardashian, who supported clemency for Alice Marie Johnson), to reward prominent Republicans (such as former campaign manager Paul Manafort, longtime friend Roger Stone and several former members of Congress), or to acknowledge those who found a way to catch Trump's eye via Fox News or personal connections (Kristian Saucier and several others). Many of Trump's clemency grants are inconsistent with Alexander Hamilton's dual rationales for clemency.

Third, a consequence of Trump's method of operation has been the virtual disappearance of a fair process for granting clemency to ordinary people. Trump's primary concern with clemency has been to help out his allies first, and it shows. In a country where concerns about deep inequities in the criminal justice system have sparked movements such as Black Lives Matter, Trump's approach to clemency has often seemed tone-deaf, if not entirely out of touch for the times.

But now, President Biden can choose a different path. Will he rebuild from the wreckage or try something completely new? Admittedly, the process followed by Bush and Obama has long been criticized for relying on prosecutors in the Pardon Attorney's office to recommend clemency and essentially undo the work of other prosecutors. It is one imperfect option but is perhaps the path of least resistance. If Biden does not have the bandwidth to tackle major clemency reform early on, defaulting to this system would still be an improvement. Other options include moving the clemency review apparatus from the Department of Justice to the Executive Office of the President or to a diverse new clemency advisory commission. These possibilities would likely require more work, but they also have their appeal.

No matter what clemency system President Biden establishes, he will have the rare opportunity to reboot presidential pardon practices and begin to restore public confidence in this small corner of the presidency. Whether he follows the example of Bush, Obama or neither one, the goal should be the same: repositioning federal clemency to offer presidential mercy to average, ordinary Americans once again.

Jeffrey Crouch is an assistant professor of American politics at American University. He is editor of Congress & the Presidency journal, author of The Presidential Pardon Power, and coauthor (with Mark J. Rozell and Mitchel A. Sollenberger) of The Unitary Executive Theory: A Danger to Constitutional Government.

The views expressed in this article are the author's own.