Regular readers know that I cannot let a holiday season go by without remarking repeatedly on the fact that clemency grants for cleverly named Turkeys are more consistent and predictable than for actual human beings this time of year. I will start this season's clemency kvetching by spotlighting some passages from this new Washington Post commentary by Mark Osler with the same headline as the title of this post:
At some point before Thanksgiving, President Trump will likely pardon a pair of turkeys. The turkeys will be given silly names (past recipients have included birds named Mac and Cheese), some children and White House staffers will look on, and there will be forced jokes and stiff laughter.
It’s painful to watch. Worse, it mocks the raw truth that the federal clemency system is completely broken. While those two turkeys receive their pardons, nearly 14,000 clemency petitions sit in a sludgy backlog. Many of the federal inmates who have followed the rules, assembled documents, poured out their hearts in petitions and worked hours at a prison job just to pay for the stamps on the envelope have waited for years in that queue....
There is a deep sadness in all this: the graceless show of “pardoning” turkeys; the endless pile of files somewhere; the bizarre, tragic and wrong belief that a central constitutional power of the presidency has been delegated to a single well-meaning celebrity....
The Trump administration inherited a clemency review process that is seemingly designed to result in good cases not getting to the president. Bureaucrats in the Office of the Pardon Attorney — which is buried deep in the Justice Department — review the cases when petitions are received. Part of their job is to solicit the view of local prosecutors, the very people who sought the sentence in the first place, and Justice Department standards direct that the views of those prosecutors be given “considerable weight” in determining a recommendation. From the start, there is a thumb on the scale. That reviewer passes the case to the pardon attorney, who passes it to an official in the office of the deputy attorney general, who passes it to the deputy attorney general himself. Then it goes to a staffer in the White House counsel’s office, then to her boss and finally to the president. There is no evidence this system is working at all. It is a pipe with seven valves that all must be opened at once by seven busy people with very different interests; we shouldn’t be surprised that nothing is flowing through.
Meanwhile, a more informal clemency process has emerged. This one is simple: A television channel, Fox News, makes recommendations directly to Trump, an avid watcher. Most recently, two military officers received full pardons and another had his rank restored via this route. Previous recipients of Fox News-Trump clemency have included Joe Arpaio, I. Lewis “Scooter” Libby and Dinesh D’Souza. I don’t begrudge any of them the break they received (though others do). Alexander Hamilton was right to call clemency “the benign prerogative”; at worst, it produces mercy. My argument is for more clemency, not less. The problem is that we have two systems, one formal and one informal, that both fail to deliver the level of mercy our history of retribution and over-incarceration requires.
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