William & Mary Bill of Rights Journal


Mark Osler


The presidency of Donald Trump may have produced the most chaotic use of the constitutional pardon power in American history. Trump granted clemency to war criminals, to close friends, to celebrities, and to the friends of celebrities, with much of it coming in a mad rush at the end of his single term. Buried beneath this rolling disaster was a brief moment of hope and a lost opportunity: the chance for a restructure of the clemency process in the fall of 2018, enabled by a rare alignment of factors, including Trump’s alienation from the Department of Justice. This Article will explore the fullness of Trump’s clemency legacy and explore what was lost when a vehicle that could have helped stem over-incarceration died on the drafting table.

What follows is rooted in two personal experiences. The first was a series of meetings at the Trump White House, where I was asked to describe a better way of evaluating clemency petitions—advice that was ultimately rejected. The second experience has been, with the help of my students, reviewing clemency warrants and compiling data on what Trump ended up doing with the Pardon Power given to him by the Constitution. This analysis revealed not only troubling patterns in Trump’s clemency grants but also the tragedy of his failure to turn in a different direction through reform of the process he inherited.

Part One of this Article will describe the broken and mangled clemency evaluation system the Trump administration inherited together with a record number of unresolved petitions.

Part Two, in turn, will examine a near-breakthrough in the middle of Trump’s single term, when there seemed to be serious consideration given to real reform of the clemency process. A rare moment of opportunity presented itself, as the usual stumbling block for reform—the Department of Justice—was effectively sidelined, and there was an advocate for reform (Jared Kushner) within the President’s inner circle. The eventual rejection of proposed reforms by the Trump administration in favor of a more informal process planted the seeds for the chaos to come.

Part Three will delve into how Trump actually used the presidential pardon power. Trump deployed clemency unlike any of his predecessors: not only to reward friends (that had been done) but to serve and reward the traits he held most dear, such as loyalty, toughness, celebrity, and provocation, while disproportionately favoring those charged with crimes involving dishonesty. Part Four also addresses the patterns seen in the Trump clemency grants, particularly in terms of race and gender.

Early signals seem to show that Trump’s successor, Joe Biden, is reluctant to revamp the clemency evaluation system or use clemency systemically, compounding the tragedy of the Trump years. Clemency was meant to flow from positive values close to the hearts of Americans: mercy, redemption, and reconciliation. Trump’s abuses should lead us to reform the clemency review process and return to those values rather than abandon the tool by which they may be realized.

This abstract has been taken from the author's introduction.