On February 18, 2020, the current occupant of our White House, Donald Trump, granted clemency to eleven individuals who – except for two drug offenders – had been convicted of crimes involving fraud, bribery, tax evasion and other sorts of corruption. You know, the best kind of crimes, as I’m sure Trump and his history would confirm. (The only one he might like better is an assault on women’s genitalia.)
I’m not saying Individual 1 didn’t have the right to issue those pardons and commutations. The president’s power in this regard is what they call “unfettered.” Even so, most Americans expect some kind of fettering by a deliberative review process that includes the Department of Justice, the Pardon Attorney, and others in the executive branch.
Needless to say, since it’s Trump we’re talking about, none of that happened here. All eleven recipients had an inside connection or were promoted on Fox News. Some were vocal Trump supporters, campaign contributors, or, in one case, had a son who partied with Donald Jr. Connections is the name of the game with Trump.
As for names, Trump granted relief to Bernard B. Kerik, a long-time friend, Edward DeBartolo, former 49er’s football team owner who hosted a pre-inauguration party, Rod Blagojevich, former Illinois governor and onetime “Celebrity Apprentice” contestant, and the infamous investor Mike Millken, championed both by Rudy Giuliani, and the billionaire who hosted a recent $10 million Trump fund-raiser. Even three obscure women serving time on drug or fraud charges received pardons based on the recommendation of Alice Marie Johnson. Remember Ms. Johnson? She was pardoned by Trump in 2018 after Kim Kardashian West spoke to Trump on her behalf. Ms. Johnson served here as a “pardon whisperer,” some have said.
No, the normal pardons process wasn’t even considered by Trump, the man who claims to know everything. It doesn’t matter that groups of Americans were harmed by their crimes and might look askance at their escape from the consequences.
I can’t think of a better contrast to Trump’s approach to the clemency process than President Obama’s Clemency Initiative, ensuing from his keen and oft-stated interest in criminal justice reform. By the end of his term and the initiative, Obama had granted commuted sentences to 1,705 prisoners serving extremely long sentences compared to today’s standards, mostly for drug crimes. In fact, half of all federal inmates are drug offenders. And, of course, they are mostly poor and/or minorities.
But what really differentiates Obama’s approach to clemency compared to Trump’s is the process. First and foremost, none of these individuals had connections or high-profile champions. Instead, the inmates needed to file petitions for commutation or a reduced sentence. The Office of the Pardon Attorney and others in the Department of Justice then reviewed those petitions based on the following criteria, requiring that inmates:
1) be serving a sentence that would have been substantially lower if convicted of the same offense(s) today;
2) be a non-violent, low-level offender without significant ties to large scale criminal organizations, gangs or cartels
3) have served at least 10 years of their prison sentence;
4) have no criminal history;
5) have demonstrated good conduct in prison; and,
6) have no history of violence prior to or during their current term of imprisonment.
Based on these criteria, the Department of Justice was able to provide 16,776 recommendations to the White House, including all of those serving life sentences for drug offenses by the end of Obama’s term in January 2017.
This remarkable number was achieved through the efforts of many individuals both in and outside of government. Because tens of thousands of prisoners could be eligible, non-governmental agencies and private attorneys were asked to help with the Clemency Project 2014, as it was called, to find and present the best cases. Their efforts would be pro bono (unpaid).
Responding to this request were the Criminal Justice Section of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the ACLU, and Families Against Mandatory Minimums, as well as individuals active within those organizations and other lawyers wishing to participate. Ultimately, 4,000 volunteers found this project worthy of their unpaid time. Altogether, they processed 36,000 applications and represented 894 of the total 1,705 inmates whose sentences were commuted by President Obama. The American Bar Association believes that this might be the largest pro bono project in American history.
At the receiving end of these petitions and recommendations was W. Neil Eggleston, then White House counsel whose objective was to make a recommendation to President Obama on every petition. This became an increasingly pressing goal near the end of Obama’s presidency, when petitions increased dramatically. Accordingly, Eggleston’s own staff – which was normally involved in selecting judges – was freed up to help in the administration’s waning months. Additionally, lawyers elsewhere in the White House volunteered, even though it meant working nights and weekends. “I think this project was enormously rewarding for the lawyers in the White House,” Eggleston has said, noting that many thanked him for the opportunity to participate.
The most committed to the cause was, of course, the highest-ranking attorney in the White House, President Obama. He would call Eggleston to his office to debate the details of individual petitions and, during his busy last week as president, Obama made time to review and grant 540 commutations.
In regard to the President’s commitment, Eggleston tells about the occasion in April 2016, when seven clemency recipients (some from past administrations) visited the White House. They had been invited to speak with staff about their experiences after prison and how to improve the justice system. Around noon, however, Obama walked into the room and invited them all to lunch. Over an hour or so, he heard their stories. Explaining that an hour is a huge amount of time for the president of the United States, Eggleston told an interviewer, “He cared a lot personally about this project.”
Like all of our greatest presidents, Obama is a decent man who brought compassion, principle, humanity, and a sense of justice to the presidency. His clemency project is just one example. And while it was intended to benefit the 1,705 inmates who received the commuted sentences, there is no doubt that the attorneys and volunteers involved will long remember the parts they played in this effort. After all, how often in life do you get the chance to make such an enormous difference, not only in the lives of men and women, but also in affirming the hallmark value of our country – justice for all?
Sadly, Donald Trump would never understand this. His shortcomings as a leader of this country are, of course, well known by now. He is nothing more than an uncouth hustler who conned his way into the White House. As he pardons his friends and his friends’ friends, he continues to show how unworthy he is.
Trump is America’s unpardonable president. May we never repeat this mistake.