Biden and Trump pardons come under scrutiny, renewing calls for reform

Elizabeth Oyer’s job as the U.S. pardon attorney is to run the process by which people apply for and receive clemency. A onetime federal public defender from Maryland, she is a nonpartisan advocate for second chances.

That’s why two statements from her in the past month carried so much meaning.

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One came after President Donald Trump appointed former federal inmate Alice Marie Johnson — who was once serving a life sentence for a nonviolent drug crime — as his new “pardon czar” late last month. Oyer applauded the move.

“Alice is an inspiring and effective advocate, a wonderful and genuine person, and living proof that second chances make us safer and stronger,” she wrote in a post on her LinkedIn page of Johnson, whose prison term Trump commuted in 2018 before pardoning her in 2020.

But just over a month ago, Oyer sent a much different communication. In an email to U.S. attorneys across the country, she conveyed deep frustration after then-President Joe Biden commuted the sentences of 2,500 drug offenders, which he said was necessary in a justice system that disproportionately punishes Black and other minority offenders for nonviolent crimes.

“While I am a strong believer in the possibility of second chances through clemency, the process by which yesterday’s action was carried out was not what we had hoped and advocated for,” Oyer said in the Jan. 18 email, according to The Wall Street Journal.

“I understand that some of the clemency grants are very upsetting,” the letter stated, according to the Journal.

The comments from Oyer, who was appointed by Biden in 2022, were some of the most notable in a series of criticisms from victims, prosecutors and even other Democrats about Biden’s pardon process in his waning hours in office — with one U.S. senator going so far as to say the episode merited an overhaul of the federal pardon process.

“I am proposing that we actually impose some guardrails on the president of the United States, requiring an explanation, at the very least, some explanation for why pardon has been accorded, and some notice to the prosecutors,” Sen. Richard Blumenthal, D-Conn., told a Connecticut NBC station.

Days after Biden’s clemency announcement, President Donald Trump enacted his own politically motivated action. On the day he took office, Trump pardoned rioters involved in the attack on the U.S Capitol on Jan. 6, 2021.

The ability to pardon someone is one of the few areas where the president’s power is completely unchecked. There’s no constitutional mandate for a president to go through a certain process, and they’re free to pardon any person — no matter the crime or whether it could put a potentially dangerous person back on the street.

There have been plenty of calls to abolish the pardon power over the years, and presidents of both parties have used it to grant relief for friends, family members and donors.

The back-to-back presidential clemencies by Biden and Trump leaned on politics, drawing intensive scrutiny of the process and its potential for abuse.

While Biden hailed his extensive clemency as “an important step toward righting historic wrongs” and boasted that he had issued “more individual pardons and commutations than any president in U.S. history,” he only further inflamed some Justice Department officials, who were already angered over Biden’s characterization of the agency as infected with “raw politics” when he pardoned his son Hunter Biden.

They then saw Biden’s mass clemency as both rushed and careless, according to two people with knowledge of the events.

As part of that move, only 10% of those granted clemency were Justice Department recommendations, according to one of the sources. Those who are recommended tend to already have been vetted to be sure that underlying violent conduct is not missed. There are some 6,100 people with active applications seeking shortened sentences or full pardons.

Among those who benefited from Biden’s action — drawing outrage — was an inmate named Adrian Peeler who was convicted in the 1999 murder of an 8-year-old boy and his mother. Peeler, 48, had served his sentence for the murder but faced more prison time for dealing crack cocaine. He was not due to be released from a West Virginia prison until 2033.

Another was Lairon Graham, convicted of sex trafficking and trafficking fentanyl.

At the time of Graham’s 2023 plea deal, Trini E. Ross, the U.S. attorney for the Western District of New York, described Graham’s crimes in stark terms.

“This defendant not only sold dangerous and illegal drugs in our community, he used the addiction of vulnerable women to prey upon them and force them to commit sex acts for his financial benefit,” Ross said in a statement. “We as a society cannot, and will not, tolerate this type of criminal activity.”

Biden’s action means Graham’s sentence was reduced from 22 years to 12½ years.

Danielle Sassoon, who resigned as the interim U.S. attorney for the Southern District of New York after the Trump administration pressured her to drop corruption charges against New York City Mayor Eric Adams, also sharply criticized Biden’s commutations. In a Feb 2. op-ed in The Wall Street Journal (before her resignation), she said it was “disheartening to see some of the most dangerous offenders released on the readily disprovable misconception that they are nonviolent.”

The frustration of many at the Justice Department was knowing that they have a backlog of thousands of requests for clemency — many of which officials saw as sympathetic — and watching Biden turned to his own agenda late in the game, according to one person familiar with the process, with Biden not making unfairly imposed lengthy prison terms a clemency priority until the 11th hour.

“It was clearly rushed,” the person said. “It was done with very little consultation with the pardon attorney’s office.”

Further frustrating Justice Department officials were the pardons handed out to members of the Jan. 6 Select Committee, Dr. Anthony Fauci, former Joint Chiefs of Staff Chairman Mark Milley, other members and aides of the House Jan. 6 committee, and Capitol and Washington Metropolitan police officers who testified before it. Biden timed the public announcement of those pardons for his last day in office — before one final strike: pre-emptive pardons for his family members, according to the person with knowledge of the process.

A Biden spokesperson did not respond to requests for comment.

After the Biden moves, Trump compounded frustrations in the Justice Department by pardoning all Jan. 6 Capitol rioters, even after his own vice president had said that those convicted of assault on police officers “obviously” shouldn’t be pardoned. The department is now facing mounting challenges of another kind under Trump, including the demotion of prosecutors involved in Jan. 6 prosecutions who have been demoted to entry-level positions by Ed Martin, the interim U.S. attorney for the District of Columbia whom Trump appointed to lead the office on a permanent basis.

Judges have made clear their displeasure at both the Trump and Biden pardons.

“No ‘process of national reconciliation’ can begin when poor losers, whose preferred candidate loses an election, are glorified for disrupting a constitutionally mandated proceeding in Congress and doing so with impunity,” Judge Beryl Howell, of the U.S. District Court for the District of Columbia, said in January.

Judge Gary Brown, of the U.S. District Court for the Eastern District of New York, said that some of the Biden commutations “spotlight the problems that invariably arise when a president’s unreviewable pardon authority is deployed impetuously, resulting in careless execution of the president’s directives. In this matter — involving sex trafficking, narcotics distribution and perjury — the grant of executive clemency seems inconsistent with its purported rational.”

The Justice Department did not respond to requests for comment.

In a Fox News interview, Johnson laid out what some of her newly created position entails, including looking for appropriate candidates for clemency. She stressed she would follow-up with those released from prison to be sure they receive appropriate support.

Zöe Towns, executive director of FWD.us, an organization that advocates for criminal justice reform, said the rash of last-minute actions is precisely how the process is not supposed to work.

“This should not be something we wait until the last gasps of any gubernatorial or presidential administration,” Towns said. “People should have a lot of chances to have their sentences re-examined, whether that’s through parole boards that are meeting or judges that are doing second look sentencing reviews, and also clemency.”

Towns added support to Johnson becoming pardon czar, calling it “extremely encouraging.”

“It’s great that somebody with her experience is in the role, and it’s also really great that it’s a role that has been created this early in a presidential term, and we’re hopeful that it can mean really good things to come,” Towns said.

Johnson’s case first came to Trump’s attention after reality TV star Kim Kardashian championed her as a candidate for clemency based on Johnson’s exorbitant non-violent drug sentence.

Johnson was in federal prison for more than 21 years after she was convicted in connection to a drug trafficking conspiracy. In 2018, she told MSNBC she did not dispute her conviction, only the length of her sentence.

“I believe that I deserved some time, I really do. But I also believe that that time should be just and fair based on the crime. You can’t tell me that a non-violent, first-time offender should have been given a life without parole sentence,” she said at the time. “Do you really think I deserved the same prison time as the Unabomber? I don’t think so.”

Trump’s tapping of Johnson has drawn scorn from critics who accuse him of putting on a kind public face, even as he says drug dealers deserve the death penalty — something he repeated one day after he announced Johnson’s appointment.

Last month, at a Black History Month reception in the East Room of the White House, Trump praised Johnson and said he was empowering her to take a hands-on role.

“Alice, you’ve been an inspiration to people, and we’re going to be listening to your recommendation on pardons,” Trump said. “You’re going to find people just like you … It should not have happened. So you’re going to look and you’re going to make recommendations, and I’ll follow those recommendations, OK?”

This article was originally published on NBCNews.com