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Pardon His Pardons?

SPA Professor Reviews President Trump’s Unconventional Use of Clemency

President Donald Trump began to issue pardons early in his term, often to people close to him and without consulting typical government channels. This unconventional approach to clemency is chronicled by SPA Assistant Professor Jeffrey Crouch in “President Trump's Clemency Record: Extraordinary or Just Ordinary?,” recently published in Presidential Studies Quarterly.

The piece compares Trump’s record on pardons to that of other presidents and discusses calls for reform that surfaced in the wake of his administration. Though an historical review shows that Trump’s overall clemency approval numbers are actually lower than many of his predecessors, he stands out for impulsively approving personal acquaintances or celebrities rather than ordinary citizens, and for ignoring proper procedure. While The Office of the Pardon Attorney was established in 1865 to vet clemency petitions, only 25 of Trump’s 238 pardons and commutations went through the usual review apparatus.

“There are several examples of presidents who give pardons for personal reasons toward the end of their terms, but Trump did it throughout, and that was really unusual,” said Crouch. “The other really unusual thing about Trump was [that] he basically didn't use the screening process. Presidents almost exclusively rely on the Office of the Pardon Attorney to review applications and investigate and then make recommendations.”

Trump made a string of pardons, beginning with former Arizona sheriff Joe Arpaio, that drew criticism. He also granted clemency to prominent Republicans such as Scooter Libby, and close advisors Steve Bannon and Michael Flynn. As with many of his actions as president, Trump defied the norms in this realm.

“He had a different approach to the presidency: he came from the business world and not from the world of elected politics,” Crouch said. “A clemency review process gives at least the appearance of a fair review. When you cut that out of the picture altogether—and that was his general approach throughout his presidency—it raises questions about favoritism.”

As scandals heated up in his administration, many wondered whether the president could pardon himself, or if he might issue secret pardons. Neither the Constitution nor case law limits whom the president may pardon, noted Crouch, a fact that has motivated calls for reform. Various academics have suggested major structural changes to the clemency petition process, and Congress has proposed legislation to prohibit self-pardons. So far, none of these recommendations have gained traction.

Clemency controversies seemed to have calmed down considerably during the Biden administration, Crouch writes, and nothing in Biden’s track record suggests he is likely to abuse that power by pardoning people personally close to him.  

Crouch, a nationally recognized expert on federal executive clemency, is writing a book on the process. He concluded, “The pardon power is far from perfect, and its scope makes it vulnerable to abuse, but the president’s attitude and willingness to act make all the difference.”