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Jeffrey Crouch Trump and Bill Clinton pardon scandals should help Biden fix a flawed process

Biden can help restore the clemency review process to its former role as a normal, routine apparatus for granting presidential mercy to federal offenders.
Image: Handout image shows Trump with then President Bill Clinton at fundraiser in New York
Donald Trump greets President Bill Clinton at a fundraiser in New York on June 16, 2000.Courtesy William J. Clinton Presidential Library via Reuters file

Another day, another scandal involving President Donald Trump.

This time, it's about presidential pardon power. The latest controversy involves allegations of a "bribery-for-pardon" plan as described in documents released Monday by a federal judge. Details are sparse, but apparently this summer prosecutors in the Justice Department looked into whether high-ranking Trump administration officials were contacted about a scheme that would involve a large sum paid to the White House in exchange for a presidential pardon.

A similar story emerged nearly two decades ago, involving President Bill Clinton and a fugitive financier named Marc Rich.

A similar story emerged nearly two decades ago, involving President Bill Clinton and a fugitive financier named Marc Rich. While Rich evaded arrest in the United States by living in Switzerland, his ex-wife Denise, who had donated over $1 million to Democrats and Clinton's presidential library, participated in a scheme to obtain a pardon for him by working through intermediaries who had Clinton's ear. Suspiciously, her ex-husband was one of 140 people granted pardons by Clinton in his final hours as president, but a Justice Department investigation found no illegal behavior on Clinton's part.

Trump, like Clinton, seems open to being lobbied for pardons outside the normal screening process. This is a bipartisan problem. The "bribery-for-pardon" story is still developing, and basic details, such as who exactly is involved, remain unclear. What is apparent is that the pardon system remains open to abuse. But using Clinton and Trump as guides, President-elect Joe Biden will soon have a chance to do something new with an imperfect but life-changing executive power.

We know for sure that in both the Trump and the Clinton White Houses, the usual clemency screening apparatus broke down. That became obvious on the last night of Clinton's presidency, when he overwhelmed the pardon attorney's office (the entity in the Justice Department responsible for processing petitions for pardons or commutations) with clemency requests, making the usual background checks impossible to complete. Rich's application benefited from the chaos of that last night; the pardon attorney later noted that the petition violated federal regulations governing clemency applications and should have been denied as a result. Clinton decided to proceed with the Rich pardon anyway, as was his constitutional right.

Though Trump's final day in the White House is still weeks away, his clemency screening apparatus is already a shambles. Throughout his presidency, Trump has all but ignored the pardon attorney — the office does not even have a permanent head. Trump has instead formed his own team of clemency advisers. He has already awarded questionable pardons to political allies like Michael Flynn, Joe Arpaio and others. His final weeks in office are likely to feature an unknown number of clemency grants to supporters, friends and possibly even his family and himself. While legal (although a self-pardon is an open question), such clemency grants to further the president's own interests would still be highly inappropriate.

Before Trump, presidents of both parties traditionally relied on the pardon attorney to screen clemency applications. Reviewing presidential clemency petitions has become institutionalized over many decades, as it helps protect the president from making mistakes and provides applicants with a regular review process. Former Pardon Attorney Margaret Love once characterized it as "a regular part of the housekeeping business of the presidency."

The pardon attorney review process was, to be sure, far from perfect. Love argues that after 1980, there was "a new hostility of federal prosecutors toward any form of clemency and a change in the Justice Department's process for managing the pardon power that gave prosecutors effective control over it." The process not only was biased against offering mercy, but it also became more complex over time. Former federal prosecutor Mark Osler, now a law professor, notes that "we now have seven to twelve levels of review" for deciding whether to grant clemency.

But Biden can work to change this. Clemency scholar Paul Larkin argues that the pardon attorney's office should be relocated to the Executive Office of the President, which would eliminate the contradiction inherent in a Justice Department responsible for both prosecuting offenders and deciding whether they deserve mercy. Osler and law professor Rachel E. Barkow argue for replacing the pardon attorney with a diverse "clemency commission" relying heavily on data, existing apart from the Justice Department.

No matter what system Biden implements, he should establish a regular process, rely on it and ignore the poor examples set by Clinton and Trump. By doing so, he could help restore the clemency review process to its former role as a normal, routine apparatus for granting presidential mercy to federal offenders. Biden's guiding principles should be those expressed by Alexander Hamilton in Federalist No. 74: to use clemency either to show mercy or to "restore the tranquillity of the commonwealth." Respecting these rationales, he should resist any temptation to ignore the usual screening process and abuse the clemency power to enrich his political allies, his friends and, of course, himself.