A Deep Dive on Pardons

An in-the-weeds look at how Trump's second-term pardons and commutations are defying longstanding norms and guidelines for use of the clemency power.

Just four months into his presidency, Donald Trump has already used his pardon power expansively. On Day 1, he granted over 1,500 full pardons to Capitol rioters. He has since granted 58 more pardons and 12 commutations—that we know of. Everything about these pardons is unusual: the who, what, where, when, and how. To understand just how unusual they are, it is helpful to understand the background “norms” that apply to pardons.

The Department of Justice has detailed, longstanding guidelines in place for considering pardon applications, codified in the Justice Manual. Typically, the Department’s Office of the Pardon Attorney receives and reviews applications for executive clemency (both pardons and commutations) and prepares recommendations for the President based on these standards. (The Office has this helpful explainer for how the clemency process works in normal times.) The overarching consideration for pardons, as stated in the Justice Manual, is the following:

“In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence.”

In assessing a pardon candidate, the “the principal factors taken into account” under the Justice Manual (JM), are:

1. Post-conviction conduct, character, and reputation. Specifically, the JM looks for a “demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement.”

2. Seriousness and relative recentness of the offense. The JM cautions against pardons that would “denigrat[e] the seriousness of the offense or undermin[e] the deterrent effect of the conviction.” It also states that a pardon is generally more appropriate “[w]hen an offense is very old and relatively minor.”

3. Acceptance of responsibility, remorse, and atonement. The JM states: “A petitioner should be genuinely desirous of forgiveness rather than vindication.” The JM includes payment of restitution to victims as an “important consideration” under this factor.

4. Need for relief. “The purpose for which the pardon is sought” is a relevant consideration. The JM notes that a case may be more compelling if a pardon is needed to overcome a specific legal disability—such as employment barriers—resulting from the conviction.

5. Official recommendation and reports. Finally, the JM requires consultation with other stakeholders, including the prosecuting office and the sentencing judge.

Trump’s pardon recipients to date bear little resemblance to what the Justice Manual describes as a suitable candidate for pardon. I’ll take you through the who, what, where, when, why, and how of Trump’s pardons so you can judge for yourself.

WHO: Political Activists, White Collar Offenders, and Public Officials

Many of Trump’s pardons have forgiven crimes committed in his name by political activists and his supporters. On his first day in office, Trump infamously pardoned en masse the Capitol rioters, totaling more than 1,500 people. He later pardoned a group of nearly two dozen abortion clinic protesters.

It seems likely that we will see more overtly political pardons if Trump’s Pardon Attorney, Ed Martin, has anything to say about it. Martin—who is the first political appointee to occupy a historically nonpolitical office—recently tweeted, “No MAGA left behind,” and “Freedom for Captives!” in reference to his recommendations and preferences for pardons.

Additional pardons have been handed down to perpetrators of white collar crimes. Two things are notable about the recipients of these pardons:

• Many committed large-scale financial crimes involving enormous losses to victims which had not been repaid at the time of the pardons. These include Trevor Milton, against whom prosecutors were seeking a nearly $700 million restitution judgment. Trump also pardoned for the first time a *corporation*, HDR Global Trading Ltd., that owed a $100 million fine.

• Many are former elected officials who abused their positions of public trust to commit crimes for personal financial gain. These include Michele Fiore, a Nevada politician who embezzled funds raised for a police memorial and spent the money on plastic surgery. They also include Scott Jenkins, a Virginia sheriff who sold badges in exchange for cash bribes. In total, Trump has pardoned at least eight elected officials convicted of offenses involving bribery, corruption, and fraud (in addition to those he pardoned during his first term).

These types of pardons are not normal because, as the Justice Manual notes, they have the potential to “denigrate the seriousness of the offense,” “undermine the deterrent effect of the conviction,” and send the wrong message. Pardons are much more typically reserved for “very old and relatively minor” offenses.

WHAT: Full and Unconditional Pardons

Notably, in most cases, Trump is doling out full and unconditional pardons—not the more limited form of relief known as a commutation. Both forms of relief collectively fall under the broad umbrella of “clemency,” but it is important to understand the difference between pardons and commutations (these terms are often confused).

• A commutation merely reduces a specified portion of the sentence imposed (usually the sentence of imprisonment); it does not forgive the underlying offense or wipe away the conviction.

• A pardon, in contrast, is a much broader form of relief. A pardon has the effect of forgiving the offense of conviction (it’s the closest thing to expungement that exists under federal law) and wiping away all remaining penalties for the offense (including prison time, probation, fines, and restitution).

Past presidents have used pardons relatively sparingly, focusing their clemency efforts on commutations of sentence. President Obama granted 1,715 commutations and 212 pardons. President Biden granted 80 pardons and several thousand commutations.

Trump, in contrast, has shown a preference for pardons. In addition to the 1,500 January 6 pardons, he has granted 58 other full pardons. He has granted only 12 commutations.

What is notable about Trump’s use of pardons is that they have the effect of wiping out financial penalties owed by the recipients. Also notable is that even Trump’s commutations have an added provision—not commonly used by his predecessors—stating that the commutation applies to “the entire sentence,” leaving the recipient “with no further fines, restitution, probation, or other conditions.” This means that even Trump’s commutations have much of the same effect as a full pardon, wiping out all of the penalties.

• For example, in the case of Carlos Watson, convicted of defrauding investors in his media company, Trump granted only a commutation, but expressly erased Watson’s obligation to repay over $36 million in restitution owed to his victims.

• And notably Trump also granted a commutation to Watson’s company, Ozy Media, Inc., erasing any corporate accountability for the debt.

Traditionally, past presidents have commuted only the imprisonment portion of the recipient’s sentence. They have expressly worded their commutation grants to leave intact non-prison portions of the sentence, such as restitution owed to victims and any term of probation or supervised release to which the recipient is subject. This traditional formulation has the benefits of (1) protecting victims’ rights, and (2) ensuring accountability of the recipient by subjecting them to continued monitoring in the community.

Because Trump has pardoned so many large-scale financial crimes, the effect of his pardons has been to wipe out over $1 billon worth of debts owed by white collar offenders as part of their sentences. (Check out my pardon trackers for the full breakdown of the largest financial penalties wiped away by pardons.) There may be cases in which forbearance of some portion of a financial penalty makes sense and causes no harm to victims; however, it is difficult to see the rationale for the wholesale remission of a restitution obligations like Milton’s and Watson’s that are owed to individual victims and that have not been even partially satisfied.

WHERE: All Over, But Especially Trump’s Home Turf

While Trump’s pardons have been wide-ranging, there has been a disproportionate focus on cases prosecuted on Trump’s home turf in both New York and Florida.

Of particular note, Trump has targeted some of the largest recent prosecutions in the Southern District of New York, erasing years of work by prosecutors and in some cases undermining ongoing work by his own Justice Department. The biggest-dollar financial crimes pardoned by Trump were prosecuted in SDNY. These include the prosecutions of Trevor Milton, Ross Ulbricht, HDR Global Trading Ltd. and four of its employees, Devon Archer, and Jason Galanis. In Milton’s case, prosecutors had asked the court to enter a restitution order in the amount of over $675 million just days before Trump granted Milton a full pardon.

Through these high-value pardons, Trump appears to be showing who’s boss in the Southern District of New York, where he also upended the ongoing prosecution of New York City Mayor Eric Adams. The pardons, perhaps more readily than the drawn-out dismissal of the Adams case, illustrate how quickly Trump can eviscerate the work of that traditionally powerful and independent office.

Trump has also shown favor to several fellow Floridians through the pardon process. Most notably, Trump granted a full pardon to fellow Palm Beach resident Paul Walczak, who pleaded guilty to tax evasion (skimming over $10 million off the top of the paychecks of his employees and spending the money on a yacht and other luxury goods). Though Walczak had yet to serve a day of his 18-month prison sentence, he received a full pardon shortly after his mother, Elizabeth Fago, attended a $1M-per-head dinner with the President at Mar-a-Lago. Fago was a Palm Beach society fixture and political donor who owned a multimillion waterfront home just up the road from Trump’s.

WHEN: Before the Bell

Many of Trump’s biggest-ticket clemency grants have been awarded to individuals who served little or none of their sentence. Several clemency recipients—including Walczak, Milton, Watson, and Sheriff Jenkins, among others—were sentenced to prison time but had not yet started serving it when they received clemency. Several were thus relieved of lengthy prison terms (e.g., 116 months for Watson; 120 months for Jenkins) in addition to financial penalties. Several other clemency recipients—including Michele Fiore—had not even been sentenced yet when they were pardoned.

For clemency to be awarded so early is highly unusual. The Office of the Pardon Attorney typically will not entertain a clemency application until a conviction is final, sentence has been imposed, AND all appeals are concluded. For pardons (as opposed to commutations), Department of Justice regulations generally “require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application.” See Justice Manual (citing 28 C.F.R. § 1.2). It is also unusual for clemency to be granted before any restitution is paid to victims; the Justice Manual describes payment of restitution as an “important consideration” in the clemency analysis.

To grant clemency before any portion of the sentence is served is especially unusual in cases involving public corruption offenses and large-scale white collar crimes. The Justice Manual expressly states the following:

“When an offense is very serious, (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.”

Trump’s pardons have repeatedly defied this longstanding guidance. As noted above, the core principle of the Justice Manual is that pardons are granted “on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence.” All of these norms have fallen by the wayside.

WHY: It’s Transactional

In recent practice, the traditionally central considerations of rehabilitation and remorse appear to have been supplanted by much more starkly transactional considerations.

Historically, the clemency process has placed great weight on acceptance of responsibility. However, many recent clemency grantees have openly refused to take accountability. Some have claimed to have been victims of unfair and politically motivated prosecutions. For example, pardoned reality TV star Todd Chrisley stated in an interview shortly after his release from prison: “I would have remorse if it was something that I did.… I was convicted of something I did not do.” This use of the pardon power is contrary to the guidance of the Justice Manual, which states that a pardon recipient “should be genuinely desirous of forgiveness rather than vindication.”

Instead, what pardon seekers can offer by way of political support, financial backing, and transactional utility, appears to be paramount. Pardons can be accessed through political donations (e.g., Walczak, Milton) or outspoken loyalty pledges (e.g., Jenkins, the Chrisleys) or some combination of both. In Milton’s case, the roughly $2 million he donated to Trump offered an excellent return on investment, relieving him of over $675 million in anticipated restitution debt.

HOW: It’s a Free Market

These early results have sparked a frenzy of other clemency seekers pandering to the President in the hope of being rewarded with a pardon. News reports have described pardon campaigns by celebrities and disgraced public officials such as Sean Combs, George Santos, and Derek Chauvin.

The playbook that is emerging for pardon seekers is two-fold: (1) portray yourself as a victim of the same brand of political persecution that the President has claimed; and (2) put your offer on the table. The framing seems to matter much more than the facts. The Chrisleys, for example, successfully portrayed themselves as “persecuted by rogue prosecutors in Fulton County” (evoking Fani Willis’s case against Trump) even though their prosecution was actually brought in federal court in 2019, while Donald Trump was President, by a U.S. Attorney appointed by Trump.

Chaos reigns, as pardon hopefuls clamor to find inroads—if not a dinner at Mar-a-Lago, perhaps a connection to the Pardon Czar or anyone who knows anyone in the White House. There is no longer any apparent formal or official process. The long-standing application process managed by the Office of the Pardon Attorney seems to have become a road to nowhere. This has left approximately 8,000 people who currently have applications pending with that Office in limbo, at best.

Who you know also matters, and lawyers with ties to Trump are profiting handsomely from the new pardon economy. Pardon seekers are reportedly paying millions to hire well-connected lawyers and lobbyists who they believe can land their pardons on the President’s desk. Sometimes the fees are contingent on success. Court records reflect that Carlos Watson’s attorney collected a $1M fee after Watson’s sentence was commuted. White House connections also appear to be paying off at least in some cases. For example, former Tennessee Senator Brian Kelsey, who received a pardon in March, was previously represented by David Warrington, the current White House Counsel.

Vetting and investigation of pardon applicants has been an unfortunate casualty of this chaos. Ordinarily, pardon candidates are subject to extensive vetting by the Office of the Pardon Attorney before a pardon is recommended to ensure that the individual is truly a worthy candidate and no red flags are missed. The vetting process includes a full background investigation conducted by the FBI, which per the Justice Manual looks at: “the petitioner’s financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record.” Input is also sought from the prosecutor, the sentencing judge, and any victims of the crime. It does not appear that these steps are currently being taken.

Bypassing the longstanding vetting process has real implications for public safety and the perceived legitimacy of pardons. We have already seen clemency recipients from Trump’s first term, who were not appropriately vetted, returned to prison. One is Jonathan Braun, who has been arrested five times for a string of violent assaults—including against a three-year-old child—since his sentence was commuted in January 2021. In April, Braun was ordered held without bail after a nanny testified that he attacked and groped her.

It is also worth noting that many of Trump’s pardons and commutations have not been formally or timely announced by the White House. Typically—including during Trump’s first term in office—clemency grants are accompanied by an official announcement (usually a press release) which offers some rationale for the action. This has not been the case with most of Trump’s recent clemency grants, which raises the question whether there may be more grants of clemency that have not yet trickled into the public domain.

Closing Thoughts

In short, everything about Trump’s early second-term pardons has defied existing norms and longstanding guidelines for use of the clemency power. But those norms and guidelines have no legal force, and what moral force they carried during previous presidencies appears to have dissipated completely.

The clemency power has tremendous potential to be used for good; we saw it at its height under President Obama, who used clemency in a principled and systematic way to redress outdated and overly lengthy prison sentences, mostly deriving from harsh mandatory minimums for drug crimes. We are now seeing its destructive potential—the power of clemency to undermine and corrupt our justice system.

The clemency power dates back to times of English monarchy. Under the Constitution, the power is absolute and unlimited. Now is the time for a serious discussion of whether this unchecked power of kings is continuing to serve our democracy.