Some suggested adjustments to the presidential pardon process

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Article II of the U.S. Constitution grants the president the unconditional power to grant “reprieves and pardons for offenses against the United States.” Pardons do not extend to impeachments or to violations of state laws but do extend to cases involving courts-martial. Pardons entail various forms of clemency, including commuting or postponing a sentence, remitting or delaying the imposition of a punishment, and providing amnesty to an entire group or class of individuals.

A pardon does not erase a conviction from the record — that can only occur by judicial expungement. While the Department of Justice once opined that a president cannot pardon himself, legal scholars are divided on that subject. While some insist that preemptive pardons before conviction are out of order, the granting of such pardons is common practice — the pardon of Richard Nixon being but one example. Case law establishes that a pardon must be accepted by its beneficiary to be valid, meaning that posthumous pardons are useless gifts.

Hunter Biden was only the latest family member to be granted clemency — Abraham Lincoln granted a pardon to his wife’s half-sister and Bill Clinton pardoned his half-brother. The “most numerous” pardon of the 1800s was granted by Andrew Johnson to approximately 7,000 people who owned property worth $20,000 or more — dwarfing President Donald Trump’s infamous pardon of every single soul convicted of attacking the Capitol on January 6, 2021. Thousands of traitors, including generals, were pardoned after the Civil War and over 150 individuals convicted of treason or sedition were pardoned by our first three presidents.

While presidents received administrative and substantive support in the pardon-granting function from the attorney general and others in the 1800s, the Office of the Pardon Attorney was established by statute in 1891 and currently resides in the Department of Justice. While that office’s published criteria include “the applicant’s conduct following conviction, the seriousness of the offense, and the extent to which the person has accepted responsibility for the crime,” each president is legally free to apply whatever criteria he feels like.

Elizabeth Oyer was appointed head of the Pardon Office by President Biden in 2022 after a career as a public defender. She was fired in March 2025 for having refused to recommend to the attorney general restoration of Mel Gibson’s gun rights, which had been taken away as a result of a domestic violence conviction. She has been replaced by the controversial Edward Martin, who is also the Director of the Weaponization Working Group. President Trump also appointed Alice Marie Johnson (who owed her first-term pardon to Kim Kardashian) to a position charged with recommending worthy pardon recipients. While we won’t dwell on Trump’s checkered pardon record, it is heavily peppered with allies and loyalists and the uber-rich. The opening move to pardon 1,500 Capitol invaders set the tone and George Santos‘ sentence commutation and Rod Blagojevich’s pardon and the recent pardon of 77 election deniers were highlights. The government and crime victims have reportedly lost fees, fines and restitution in excess of $1 billion so far in the first ten months of Trump’s second term.

Trump’s notorious pardon recipients followed memorable commutations and pardons spread out over the last 125 years. The presidents from McKinley through Barack Obama issued 22,427 pardons or commutations not including the more than 200,000 Vietnam War draft evaders pardoned by Jimmy Carter. The Trump pardon record is preceded by shameful midnight pardons from many of his immediate Democratic predecessors and other commutations and pardons that seemed in flagrant violation of criteria embraced by the Office of Pardon Attorney and seemed hard to justify.

While the president’s pardon power is virtually limitless, we recommend some changes that are intended to bring transparency and professionalism to the pardon process while acknowledging that the pardon power belongs to the president. The pardon attorney’s appointment should be subject to Senate confirmation and any removal by the president must be accompanied by a written statement of the reasons for the removal. The pardon attorney shall be informed in writing of any pardons or commutations granted without the pardon attorney’s approval or disapproval. The president and his or her staff should encourage all those seeking pardons or commutations to submit applications to the pardon attorney and follow the standards and processes established by the pardon attorney. The pardon attorney shall submit a written public report to the presiding officers of each house of Congress with appropriate details at the end of each month of all pardons or commutations granted in the prior month to any persons, but not to turkeys.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.