“Presidential pardon power has jumped the shark,” noted a CNN analyst on January 21, 2025.Footnote 1 Clemency decisions announced the day before, namely Democrat Joe Biden’s highly controversial pardons on his way out of the White House, coupled with Republican Donald Trump’s provocative pardons on his way in, may have marked a turning point in how presidents and the American public understand presidential pardons. As demonstrated by several examples from both the Trump and Biden clemency records, the long-established rationales for presidential clemency, that is, pursuing justice at a societal level or demonstrating mercy to an individual,Footnote 2 seem to have been joined by—possibly even set aside by—a more compelling third rationale: presidents serving their own personal and political goals through the pardon power. This unfortunate state of affairs did not happen overnight. Rather, several presidents from both major political parties have chipped away at the norms that previously discouraged presidents from abusing the clemency power.
1. The clemency power and norm violations
In recent decades, presidents from both major political parties have violated previously observed norms with their clemency power. This matters because, as law professor Daphna Renan argues, norms, which are “unwritten or informal rules of political behavior[,] provide the infrastructure that any particular President inhabits. Presidential power is both augmented and constrained by these unwritten rules of legitimate or respectworthy behavior.”Footnote 3 Political scientist Seth Masket writes that:
‘norms’ are the largely-unwritten rules that keep a government, even a society, running. Particularly in a governmental system where the Constitution is brief, vague, and more than two centuries old, norms evolve over the years to enable government to run smoothly and to prevent extreme or unpredictable outcomes. The violation of a norm often comes with some kind of punishment.Footnote 4
In their article “Unwritten Rules,” political scientists Julia R. Azari and Jennifer K. Smith define “informal institutions” as: “the unwritten rules of political life: shared understandings created and enforced outside formal or legal channels.”Footnote 5 They note that polarization is particularly important when considering “unwritten rules,” pointing out several examples where “a decision by one or both parties to violate informal understandings launched or escalated a destabilizing spiral of conflict.”Footnote 6
Presidents of both major political parties are increasingly abusing the clemency power and casting aside traditional norms to do so. They have ignored the generally accepted rationales for clemency (to show mercy or serve the public interest) in favor of serving their own personal interests. At least one president has set aside the goal of national reconciliation in the realm of mass pardons in favor of protecting political supporters from punishment by the criminal justice system. On an individual level, presidents have ignored or bypassed the Office of the Pardon Attorney and its guidelines in favor of using clemency for their own political or personal gain. Presidential actions that were previously considered clemency abuses increasingly go unpunished and are later duplicated.
Thus, clemency abuses by presidents of both major political parties have over time helped to normalize ever more extreme actions by their successors. This evolution may have long-lasting consequences. Political scientists Karen Orren and Stephen Skowonek define “political development” as “a durable shift in governing authority,” where “shift” hints at “rearrangement, redirection, reconstruction,” while “durable” is defined as “the span of years that any shift holds on, into the future.”Footnote 7 Clemency abuses destabilize the criminal justice system and, especially when undertaken by presidents of both major political parties, may lead to durable shifts in presidential behavior with the clemency power. The ultimate result is a more cynical normal where the public becomes conditioned to presidents treating the clemency power as just another way to pursue their political interests instead of as a tool for correcting injustice, as originally intended.
2. Plan for the article
The main goal of this article is to examine how vanishing norms have freed presidents of both major political parties to abuse their clemency power to pursue their own personal interests rather than the traditional purposes of bestowing mercy or serving the public interest. I begin with a look at the norms that have traditionally applied to clemency grants. Then, I consider the clemency literature and highlight how scholars have warned about the potential of the clemency power and the danger of self-interested clemency decisions. I track how the Pardon Attorney has evolved from operating as a routine mechanism facilitating a president's clemency program to, depending on the president, a mere afterthought. Then, I consider the history of the clemency power, including its origins and the traditional rationales justifying its use. From there, I look more closely at the pardon power in practice, considering vanishing norms related to both mass pardons and individual pardons over the last half century. I devote the bulk of the article to explaining how certain clemency decisions helped clear room for additional controversial ones by our most recent presidents, and how their actions will continue to undermine norms and transform clemency into even more of a political tool in the future. This is a major departure from the clemency power's original role as a way for the president to show mercy or pursue justice.
3. Scholarly work on the clemency power
Traditionally, the clemency power has not been a particularly popular topic for political science scholars. Most of the scholarly literature on the president’s pardon power has been published in law review journalsFootnote 8 and, much less frequently, in political science journals.Footnote 9 In fact, political scientist Mark Morris noted in a book chapter published in 1998 “[t]he apparent lack of interest” in the subject that has led to “something of a void within presidential studies.”Footnote 10 Thus, one of the most notable developments in the clemency literature in recent years is how the subject has become more popular among scholars.
However, even more important than the clemency power's emerging popularity has been arguably the main reason for its emergence: its potential threat to the rule of law. Several scholars have hinted for years that even though the clemency power had been neglected by both presidents and academics (one legal scholar in 1991 correctly characterized clemency as a “living fossil”),Footnote 11 it contained considerable untapped potential as an all-but-unlimited power that a president could use unilaterally to serve their own goals. Morris noted in 1998 the “relevance” of the clemency power even then “because of its all but absolute nature,” and argued that “[n]o other executive power is as unrestrained as the power to pardon.”Footnote 12
Much like Morris, political scientist H. Abbie Erler also drew attention to the vast untapped possibilities to expand presidential power made possible by the pardon power. In 2007, she considered the end of the Clinton administration in a journal article and examined President Bill Clinton's push for clemency applicants to avoid the Pardon Attorney and instead send their petitions directly to the president.Footnote 13 In 2009, I published The Presidential Pardon Power, in which I critiqued an emerging trend whereby presidents from both major political parties were more comfortable putting aside concerns for justice in order to grant pardons and commutations that furthered their own personal agendas.Footnote 14 In his 2021 book Mass Pardons in America, political scientist Graham G. Dodds highlighted the potential of mass pardons, noting that they “are broader in scope [and] potentially more far-reaching and significant than most pardons for just one person.”Footnote 15 Dodds contended that “mass pardons can do a great deal of good” if directed toward the proper ends, which is usually “reconciliation,” or “bringing aggrieved and alienated groups back into the national community.”Footnote 16 His emphasis on the impact of a mass pardon anticipated the important role that a pardon for roughly 1,500 January 6, 2021, offenders would play in January 2025.
Three years after Dodds’s book saw print, law professor Kimberly Wehle published Pardon Power.Footnote 17 In the book, she argues in Part III, Chapter 3, titled “Favoritism and Corruption,” that “favoritism, self-preservation, and possible corruption are now universally accepted grounds for a presidential pardon.”Footnote 18 In 2025, legal commentator and best-selling author Jeffrey Toobin published The Pardon, a popular press narrative account of the pardoning of former president Richard Nixon by President Gerald Ford.Footnote 19 Drawing parallels between the Nixon pardon by Ford and the (then-predicted) January 6, 2021, pardons by incoming president Donald Trump, Toobin argued that “A bad pardon for an honorable reason is still a bad pardon—and that’s what Ford’s pardon of Nixon was.”Footnote 20 Toobin’s book staked out a position contrary to that of political scientist Mark J. Rozell, who three decades earlier had analyzed the political and constitutional background of the clemency power and found the Nixon pardon to be “justified.”Footnote 21
Law professor Saikrishna Bangalore Prakash recently published The Presidential Pardon, where he pointed out that recent presidents seem unafraid of consequences from pardons as they proceed “unabashed, basking in the inevitable approval of their cronies and confident that their allies will stoutly defend them from the negative nabobs and tut-tutters.”Footnote 22 Echoing a similar sentiment to Prakash, Frank O. Bowman III, a law professor who is currently writing a book entitled Pardons, has also noted in his other writing how a president may use the clemency power “with impunity.”Footnote 23
In sum, political scientists and legal scholars have highlighted both the clemency power’s untapped potential and how presidents seem more willing to deploy clemency to pursue their own personal interests. Their fears of a president using clemency to serve their own political interests were realized on a large scale with President Donald Trump’s January 20, 2025, mass pardon of about 1,500 individuals related to the January 6, 2021, riot. The individual pardoning decisions of both Joe Biden and Donald Trump in many cases also furthered their own personal interests. This state of affairs is much different than what preceded it. A look at the history of the pardon power shows that the framers had much more modest plans for the president’s clemency power.
4. The pardon attorney
“From the earliest years of the Republic,” former Pardon Attorney and legal scholar Margaret Love observed, “pardon was used to benefit ordinary people for whom the results of a criminal prosecution were considered unduly harsh or unfair.”Footnote 24 One important norm that has developed over time is the review process that is provided by the Office of the Pardon Attorney in the Department of Justice, a bureaucracy that is available to the president to review clemency cases using “intelligible and fair standards and procedures,” as Jeffrey Toobin noted.Footnote 25 Considered “a cautious and slow-moving” office, it follows federal regulations that generally require pardon applicants to, in Toobin’s paraphrase, “wait at least five years after conviction or release from confinement (whichever is later) to seek a pardon.”Footnote 26 Pardon applicants should be aware that among the guidelines followed by the Pardon Attorney are: “The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations” and “[a]n individual’s demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon.”Footnote 27
However, the president’s constitutional clemency power does not require consultation with the Pardon Attorney’s Office. As Kimberly Wehle succinctly puts it, “The Constitution suggests that the president can pardon anyone, anytime, for anything (with the exception of pardons for rare impeachments).”Footnote 28 Sometimes a clemency decision occurs outside the Pardon Attorney's office, which can be a red flag that the president may be pursuing a goal that has little to do with justice. The Pardon Attorney provides guardrails to help the president avoid mistakes, but these guardrails only work if the president allows the review process to occur in the first place.
Presidents have sometimes deviated from involving the Pardon Attorney and pursued political or otherwise personally interested clemency decisions. Examples from presidents of both major political parties laid the groundwork for Donald Trump’s first term clemency approach, in which, as Jeffrey Toobin summarized, “[m]ore than any recent president, Trump handled pardons and commutations himself … [and] turned clemency into the crudest political currency, which he used, for the most part, to reward dozens of undeserving cronies, allies, and crooks.”Footnote 29 Margaret Love echoed Toobin’s perspective, noting how Trump in his first term deviated greatly from the norm of relying on the Pardon Attorney for clemency decisions: “What [Trump] has done, that is so unusual, which none of his predecessors going back to the Civil War have done, is to completely cast aside the advisory system that was set up under President Lincoln to help the president use the pardon power.”Footnote 30 Instead of relying on the usual system, Trump was, according to Love’s paraphrased comments to Legal Examiner, “issuing pardons only to people he knows, people he has heard about, and not people who have specifically petitioned through the pardoning process.”Footnote 31 The pardon attorney’s review process has not been without its problems over the years,Footnote 32 but it was not virtually ignored until Donald Trump’s first term as president.
5. The pardon power: origins and traditional rationales
The sole clause centered on clemency in the entire Constitution is in Article II, Section 2, Clause 1, which gives the president the ability to “grant reprieves and pardons for offenses against the United States,” excluding impeachment cases. This language is extremely broad, with “only two textual limitations,” as clemency scholar Paul J. Larkin, Jr. observes, “The President cannot excuse someone from responsibility for a state offense, nor can he prevent Congress from impeaching and removing a federal official. Otherwise, the President's authority is exclusive and plenary.”Footnote 33
The Articles of Confederation did not feature a clemency power, but it was included in the new Constitution thanks to “Charles Pinckney, Alexander Hamilton, and John Rutledge [who] fought for and won inclusion of a pardoning power,” as described by law professor William F. Duker.Footnote 34 Mark Morris pointed out that, once the pardon power made it into the Constitution, the remaining unanswered questions could be simplified as follows: “where was the power to be vested; and when could a pardon be issued?”Footnote 35 I noted that the delegates to the Constitutional Convention chose the president for this responsibility while deciding that the answer should be “no” to each of the following key questions about the scope of the clemency power: whether to require the president to obtain the Senate's acquiescence on pardons; whether to limit eligibility for a pardon until after someone has been convicted of a crime; and whether the crime of treason should be removed from eligibility for the pardon power.Footnote 36 Through their discussion of the hypothetical possibility of a president using clemency to protect treasonous allies, the framers demonstrated faith that impeachment would be a sufficient deterrent to misbehavior and in general placed significant trust in the president's judgment.Footnote 37 Because they concerned a constitutional check and balance power, the president’s clemency decisions could not be impeded by Congress and the judiciary would be limited in its ability to interfere. But eventually, additional checks would come from the development of new norms: voters exercising their rights at the ballot box and the judgment of one’s presidential legacy by history.
Hamilton provided a spirited defense of the clemency power in Federalist #74, arguing that clemency should be vested in the president to both address cases where the law provides too harsh a penalty, and to give the president a tool for defusing societal unrest. Regarding pursuing justice for individuals, Hamilton wrote: “the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”Footnote 38 He also provided a rationale for using clemency to preserve societal order:
the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed [sic] offer of pardon to the insurgents or rebels may restore the tranquillity [sic] of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.Footnote 39
The nation’s first president, George Washington, mentioned each of these rationales after granting pardons to two Whiskey Rebellion offenders, citing both “the public good” and “my personal feelings” to bring “moderation and tenderness” to the exercise of his executive powers.Footnote 40 These two rationales were also echoed in early Supreme Court cases. In 1833, United States v. Wilson identified the president's pardon power as an “act of grace,” and so “mercy became, in strict legal theory” as Duker pointed out, “the reason for a pardon.”Footnote 41 Then, a 1927 case called Biddle v. Perovich “provided a more solid base for the power,” Duker argued.Footnote 42 Here, the Supreme Court found that “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. … the public welfare, not [the prisoner’s] consent, determines what shall be done.”Footnote 43
These two rationales, whether explicit or implicit, are proper and acceptable reasons for the president of the United States to grant clemency. In contrast, pursuing the president’s personal interests is not an appropriate use of the clemency power. The president’s decision to pardon based on one or both of these two broad categories is a long-established norm that has, over time, generally been followed by presidents of both major political parties, with occasional (and recent) exceptions.
6. The clemency power in practice
A brief look at how the clemency power has been used reveals that, whether granting pardons to a large group of people or to a single individual, presidents have generally not abused it to pursue their own personal interests. In this section, I analyze two of the highest-profile mass pardons in American history: the Civil War amnesties by presidents Abraham Lincoln and Andrew Johnson, and the Vietnam War amnesties from presidents Gerald Ford and Jimmy Carter. These examples demonstrate that, even in these highly controversial situations, presidents remained focused on national reconciliation as their main goal, an aim that is consistent with the “public welfare” rationale for the clemency power.
6.1. Mass pardons
Graham G. Dodds identified the Civil War as “the most significant political rupture in American history” and noted that “[t]he effort to reintegrate Confederates and to reunite the United States led to a total of six separate proclamations of mass pardon by two presidents over five years, both during and after the Civil War.”Footnote 44 Though given under some of the most controversial circumstances imaginable, these mass pardons, Dodds points out, “did help to move the country beyond the violence of the war and to bring many supporters of the Confederacy more or less back into the national fold. Altogether, the multiple pardons of Confederates by two presidents over five years ameliorated the bitter divisions of the Civil War … .”Footnote 45 Both Lincoln and Johnson used the clemency power to reunite a sharply divided country, which was consistent with the rationale identified by Alexander Hamilton to use clemency to pursue “tranquility” at a societal level. These presidents used the clemency power as a means of national reconciliation to bring the country back together after a violent time that threatened the future of the Union.
Both Gerald Ford and his eventual successor, Jimmy Carter, used clemency to address lingering legal issues related to the Vietnam War. Gerald Ford stunned an audience comprised of Veterans of Foreign Wars members in August 1974 with the decidedly unwelcome news that he was offering amnesty to a group of controversial Vietnam figures, a sentiment contained in Proclamation 4313, which described the president's “program to commence immediately to afford reconciliation to Vietnam era draft evaders and military deserters.”Footnote 46 As Dodds describes, “Ford's program of ‘earned reentry’ offered amnesty to draft evaders and deserters if they would turn themselves in to authorities by the end of January 1975, acknowledge their allegiance to the United States, and perform up to two years of ‘alternate service’ in public-service positions.”Footnote 47 The program attracted criticism for being simultaneously too generous and not generous enough, and in the end, Dodds notes, “[r]elatively few people took advantage of Ford's clemency program.”Footnote 48
President Jimmy Carter chose a difficult audience for fulfilling his campaign promise to give Vietnam draft evaders a mass pardon: an American Legion group of roughly 15,000, who loudly expressed their disagreement with the president.Footnote 49 On January 21, 1977, Carter granted in Proclamation 4483 a full pardon to
(1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act … and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act ….Footnote 50
Carter's clemency decision was also met with ambivalent public feedback in some quarters, but, in Dodds’s view, “many Americans seemed satisfied with it and welcomed the chance to finally put the war behind the country.”Footnote 51 Like Ford before him, Carter used the clemency power to try to reunite the country after a war that had divided Americans for years, another example of a president granting a mass pardon to further the goal of national reconciliation. And much like Lincoln and Johnson before them, Ford and Carter similarly deployed the clemency power to forgive old wrongs and encourage lawbreakers to rejoin society.
On his first day back in the White House, President Donald Trump granted pardons to approximately 1,500 January 6, 2021, rioters and also provided sentence commutations to fourteen members of right-wing groups the Oath Keepers and the Proud Boys.Footnote 52 The highly volatile circumstances of Trump’s January 20, 2025, pardons encouraged comparisons to the Civil War and other mass pardons, but there was one crucial difference. As Frank Bowman points out, “No American president has ever pardoned those who joined him in seeking to overthrow constitutional government. Trump pardoned people who were, quite literally, his co-conspirators in the crime of attempting to prevent the peaceful transfer of power.”Footnote 53 The Civil War and Vietnam War-era presidents discussed earlier had all pursued national reconciliation, but Trump did not seem to share the same motivation. Rather than reuniting the country, Trump’s pardons seemed aimed primarily at pursuing political objectives, for example, fulfilling a campaign promise to free January 6, 2021 figures from federal criminal penalties, and, relatedly, signaling disagreement with how these individuals had been prosecuted in the first place.
Trump committed at least two norm violations related to the January 6, 2021, pardons. The first is how he publicly shifted his stance on the January 6, 2021, rioters, moving from condemning their actions, which Americans watched live on their televisions and cell phone screens, to embracing them and eventually referring to the offenders as “hostages,” to even campaigning for president on the promise to grant them clemency if elected.Footnote 54 The second, and more serious, norm violation related to the politically radioactive subject matter of the clemency grants. Trump granted a mass pardon to offenders who in some cases used violence to actively attempt to interfere with the presidential vote count taking place inside the Capitol building.
In the same vein, some January 6, 2021, clemency recipients have pushed for financial payments from the government for being prosecuted in the first place, another would-be norm violation that the New York Times characterized as “a serious escalation of the efforts to rewrite the history of Jan. 6 [that] [i]f accepted, would effectively designate members of the mob, whose Capitol break-in upset the lawful transfer of presidential power, as victims of the government and deserving of reparations.”Footnote 55
Considered alongside the Civil War and the Vietnam-era mass pardons, the January 6, 2021, pardons stand out as a series of significant and ongoing norm violations. They are also reminders of how Trump or one of his successors might again grant clemency to a large group of supporters, political aides, friends, or family, whether motivated by the goal of national reconciliation or not.
6.2. Individual pardons
Before Donald Trump and Joe Biden, Democratic and Republican presidents going back to Gerald Ford have been fairly cautious in their use of the clemency power, granting pardons or commutations usually in safe circumstances, lest they suffer unwelcome political consequences. These presidents learned a valuable lesson from Ford’s pardon of Richard Nixon: avoid making controversial clemency decisions until protected against political consequences by the “lame duck” period.Footnote 56
6.2.1. Gerald Ford and the Nixon pardon
The Nixon pardon demonstrated the potential political costs of an unpopular clemency decision. Ford’s pardon of his immediate predecessor, Richard Nixon, following the Watergate scandal carried severe consequences for the new president at a time when he was trying to leave the Watergate scandal in the past. “Watergate” began as an unsuccessful burglary at the Democratic National Committee headquarters in the Watergate Hotel and eventually ensnared the president himself, as secret tape recordings showed his willing participation in the cover-up of illegal activities.
Nixon resigned from the presidency, and a month later was pardoned by his successor. The Ford White House kept the president's plan to potentially pardon Nixon a secret: apparently only about a half dozen top aides knew about it, and the Office of the Pardon Attorney was not involved.Footnote 57 Ford followed through with the Nixon pardon on September 8, 1974, issuing a highly unusual clemency document that did not specify Nixon’s offenses and covered the entire span of his presidency. The public’s reaction to Ford’s decision was highly damaging to the president: as Rozell documented,
[w]ithin one hour of the announcement, phone calls running eight to one against the pardon inundated the White House switchboards. The Gallup poll reflected a sixteen point decline (from 66 to 50 percent) in the president’s public approval rating after the pardon announcement. Ford’s respected press secretary, Jerald F. terHorst, resigned in protest.Footnote 58
Ford somewhat confusingly cited his personal relationship with Nixon while explaining the reasons for pardoning him, but ultimately grounded the decision on his constitutional responsibilities: “My conscience says it is my duty, not merely to proclaim domestic tranquility, but to use every means I have to ensure it.”Footnote 59 And Rozell notes that even though the Nixon pardon did not instantly fix the damage caused by Watergate, “from a legal standpoint, and from the standpoint of serving justice, his decision was justified.”Footnote 60 The norms that had developed to check clemency decisions held, and the political price paid by Ford and Republicans in general for Watergate and the Nixon pardon was high: in the 1974 mid-term elections, Republican congressional candidates suffered widespread defeats, and in the 1976 presidential election, Democrat Jimmy Carter narrowly beat Ford. Being mocked by “Saturday Night Live” as incompetent, or worse, did not help the incumbent president's image or his election bid.Footnote 61 However, vindication arrived decades later for Ford, as the JFK Library awarded him its “Profile in Courage” award for exhibiting political bravery in pardoning Richard Nixon under extremely challenging political circumstances.Footnote 62 The Nixon pardon likely contributed to the end of Gerald Ford's political career, but he handled the decision correctly: he acted as soon as he had decided to pardon Nixon and did not delay the decision to avoid political payback.
For years after the Nixon pardon, presidents generally compiled conventional clemency records. Rather than pursue their own political interests, these presidents generally elevated political safety as their main goal. However, even they sometimes veered off course to use their Article II clemency power to serve some overriding personal interest. George H. W. Bush, Bill Clinton, and George W. Bush all made highly controversial clemency decisions toward the end of their presidencies, at a time when they would have the most protection from political punishment at the ballot box, thus sidestepping serious political consequences by manipulating and undermining norms that had prevented other presidents from abusing the clemency power.
6.2.2. George H. W. Bush and the Iran–Contra pardons
The Iran–Contra scandal of the Reagan administration was really two scandals in one. The History Channel succinctly notes that the scandals included “a secret U.S. arms deal that traded missiles and other arms to free some Americans held hostage by terrorists in Lebanon, but also used funds from the arms deal to support armed conflict in Nicaragua.”Footnote 63 Of the former Reagan administration officials connected to the scandals, a half dozen, most notably former Secretary of Defense Caspar Weinberger, were pardoned by President George H. W. Bush, Reagan’s former vice president. Bush granted these pardons during his “lame duck” period after losing his 1992 reelection bid to Bill Clinton, at a time when a major newspaper poll revealed that 59 percent of the American public disagreed with pardoning Weinberger.Footnote 64
President Bush had spoken “in private” with a small group of top advisors that included NSA Advisor Brent Scowcroft and Attorney General William Barr, the latter of whom acknowledged that these pardons did not undergo the usual Pardon Attorney review process: “I don’t remember going through the pardon office,” Barr said in 2001,
but I did ask some of the seasoned professionals around the Department about this, asked them to look into it. Based on those discussions, I went over and told the President I thought he should not only pardon Caspar Weinberger, but while he was at it, he should pardon about five others.Footnote 65
In a proclamation issued on December 24, 1992, Bush did just that, defending Weinberger as “a true American patriot” and noting that the other five pardoned offenders also shared “patriotism” as the force behind their actions, regardless of their moves being “right or wrong.”Footnote 66 The president found fault with what he saw as “the criminalization of policy differences.”Footnote 67
George H. W. Bush was quite conservative with the clemency power during his 4 years as president, issuing only seventy-four pardons and three sentence commutations. But in the end, his personal interest won out: The full pardons that Bush granted to these six Iran–Contra figures served two purposes: first, they kept key Reagan administration figures related to the scandal from enduring punishment for their alleged activities. Second, the Weinberger pardon in particular allowed President George H. W. Bush to sidestep having to testify at Weinberger's trial, sparing Bush embarrassment and eliminating the possibility that something might come out at trial that could damage either himself or Reagan.Footnote 68
Bush’s clemency grants under these circumstances were norm violations that showed future presidents that granting pardons to top-ranking administration staff could be done with minimal political penalties to pay at the end of a “lame duck” president’s term, especially when a president of the other major political party was set to take over (here, President-Elect Bill Clinton). Critics could do little except call out Bush’s pardons as norm violations. Legal scholar Harold Koh observed, “By pardoning the last Iran–Contra defendants, George Bush violated a central norm of our National Security Constitution: that foreign policy exigencies do not authorize the President to nullify the rule of law for his own administration.”Footnote 69 Moreover, Koh argued, “Bush … who wisely (if reluctantly) sought congressional approval for the Gulf War, [in this case] deeply tarnished his own constitutional legacy.”Footnote 70 Reacting to the pardons, Lawrence Walsh, the independent counsel investigating the Iran–Contra scandal, observed, “The Iran–Contra cover-up, which has continued for more than six years, has now been completed.”Footnote 71 In the long run, historian Alan McPherson observed, “Bush had established the dangerous precedent of using the pardon for personal—or at least party—political use.”Footnote 72 He had also worked outside the normal Pardon Attorney review process.Footnote 73 The stage was now set for a successor to take advantage of the weakening of this restraint on the clemency power.
6.2.3. Bill Clinton, the FALN commutations, and the Marc Rich pardon
Bill Clinton's clemency record over two terms in office included 396 pardons and 61 commutations. Perhaps the most volatile clemency decisions of his presidency were conditional commutations offered during his final term to members of the FALN, a controversial Puerto Rican nationalist organization, and a large group of pardons and commutations issued on his last day in officeFootnote 74 that included full pardons for his own half-brother, Roger Clinton, and for Marc Rich, a financier who was avoiding prosecution in the United States for alleged federal crimes by living abroad.
The FALN commutations did not undergo the usual review process with the Pardon Attorney and other officials, and were even opposed by law enforcement,Footnote 75 but Clinton decided to offer them anyway, apparently as a way to score political points with Democratic voting constituencies.Footnote 76 A USA Today/CNN Gallup poll taken the same month as the FALN commutations found that 60 percent of the American public believed that Clinton’s offer was aimed at winning over Hispanic voters in New York (where First Lady Hillary Clinton was pursuing a Senate seat) while 61 percent of respondents found the commutations to be wrong-headed.Footnote 77
The Rich pardon—while never definitively proven to be a quid pro quo—unquestionably granted the clemency wish of a notable donor to both Clinton’s Presidential Library and the Democratic Party.Footnote 78 Even if the decision was not technically illegal, it was sudden and unexpected when it emerged. The New York Times reported that Pardon Attorney Roger Adams testified to the Senate Judiciary Committee, “‘none of the regular procedures’ were followed” and he only heard that the president was considering a pardon for Rich as Clinton was literally on his way out the door, “shortly after midnight on the morning of Saturday, Jan. 20, 2001.”Footnote 79 Clinton had invited clemency applicants to send petitions his way near the end of his term; by doing so, he invited extra scrutiny and criticism for attempting to work around the Pardon Attorney.Footnote 80 Three of Clinton’s top aides (Chief of Staff John Podesta, White House Counsel Beth Nolan and Deputy White House Counsel Bruce Lindsey) had all encouraged him not to pardon Rich.Footnote 81 Former President Jimmy Carter referred to the Rich pardon as “disgraceful.”Footnote 82 President Clinton wrote a New York Times op-ed explaining the decision, while the House Government Reform Committee explored the behind-the-scenes decision-making process.Footnote 83 To say the Rich pardon was not popularly accepted would be an understatement.Footnote 84
Bill Clinton’s FALN commutations and Marc Rich pardon were norm violations. Clinton avoided the Pardon Attorney in both cases and waited to act until his presidency was nearly over in the latter case. This approach demonstrated to future presidents how they, too, could use the clemency power to serve their own personal and political goals under the right circumstances. Like George H. W. Bush, Clinton endured less political fallout because he strategically timed his controversial clemency decisions for when he was nearly out the door of the Oval Office and was about to be replaced by a president-elect from the other major political party (namely, George W. Bush).
6.2.4. George W. Bush and the I. Lewis “Scooter” Libby commutation
In 8 years as president, George W. Bush granted 189 pardons and 11 sentence commutations. Overall, he compiled a largely uncontroversial clemency record. One clemency expert pointed out that Bush rarely granted clemency to anyone.Footnote 85 Delving into the details, Margaret Love observed, “All of the 189 pardon recipients had fully served their sentence, and almost 2/3 of them were convicted more than 20 years before they were pardoned” while “[o]f the 11 individuals whose sentences were commuted by President Bush, eight were convicted of drug offenses in the early 1990s (in one case 1989) and three of them were within a few months of release from prison by the time their petitions were granted.”Footnote 86
All of which is to say, Bush seemed to act out of character when he granted a highly controversial sentence commutation to I. Lewis “Scooter” Libby, Vice President Dick Cheney's former chief of staff, as a “lame duck” president in July 2007. Libby had been convicted of obstructing justice and lying and was sentenced to pay \$250,000 and spend 30 months in federal prison. Libby was just about to start serving his prison sentence when Bush decided to intervene.Footnote 87 In a statement, Bush first praised the prosecutor in Libby’s case, Special Counsel Patrick Fitzgerald, as “highly qualified” and “professional” before turning to defend his decision to commute Libby's prison sentence from 30 months to zero time in prison, a result that Bush characterized as appropriate because “the prison sentence given to Mr. Libby is excessive.”Footnote 88
Politico noted that “[t]he closest parallel to what Bush 43 did for Libby” was George H. W. Bush’s Iran–Contra pardons.Footnote 89 As the Washington Post observed, here, “[f]or the first time in his presidency, Bush commuted a sentence without running requests through lawyers at the Justice Department.”Footnote 90 Sentencing expert Douglas Berman characterized the president's reasoning as essentially “My friend Scooter shouldn’t have to serve 30 months in prison because I don't want him to,” implying that Bush’s real motivation was showing favoritism to a high-ranking political ally.Footnote 91 Another clemency expert opined that “I can't think of a moral justification for pardoning Scooter Libby,” which is important because clemency “should always be done in the interests of justice.”Footnote 92
Regardless of Bush's true motive, the Libby commutation was a stain on his clemency record and his presidential legacy. Like the Iran–Contra pardons, the Libby commutation was a norm violation. Bush avoided the Pardon Attorney and simply did what he wished with the clemency power under circumstances where he had a personal interest in the outcome, namely, preventing his vice president's former chief of staff from going to prison. Bush provided another example for future presidents, showing that they, too, could grant clemency even to their own top-ranking administration staff and, if done strategically, could pay few political penalties for doing so. This strategy also took advantage of a “lame duck” president's expiring term and seemed particularly effective when a president-elect of the other major political party was set to take over (in this case, Barack Obama).
7. Clemency abuses by contemporary Republican and Democratic presidents
The clemency abuses of Bush, Clinton, and Bush helped set the stage for further norm violations by future presidents, but Barack Obama did not abuse the clemency power like these recent predecessors. He did grant a controversial sentence commutation to convicted classified information leaker Chelsea Manning, and hundreds of commutations to non-violent drug offenders, but he did not serve an obvious personal interest by doing so. Under Obama's successor, Donald Trump, the clemency power first seemed to come completely detached from its usual norms. In many cases, Trump's first-term clemency recipients were also his political supporters or would-be allies. Here, we will look briefly at two of the more prominent categories (although there are others) of Trump clemency grants: prominent Republicans and celebrities.
7.1. Donald Trump’s first-term clemency record
In Donald Trump’s first term, he quickly established that his usual approach to clemency would feature pardons and commutations for people who had a personal connection to the president himself. Trump’s decision to pardon supporter Joe Arpaio, the ex-sheriff of Maricopa County, Arizona, just 7 months into his presidencyFootnote 93 foreshadowed how Trump would be drawn to both fellow Republicans and celebrities in search of presidential forgiveness.
Trump granted clemency to several political allies and well-known individuals throughout his first term, both before and after his reelection loss to Joe Biden on November 3, 2020. For example, Trump pardoned both “Scooter” LibbyFootnote 94 (the recipient of an infamous 2007 sentence commutation from George W. Bush) and well-known conservative figure Dinesh D'SouzaFootnote 95 in 2018. Trump targeted several celebrities or fame-adjacent individuals for clemency as well, commuting current “pardon czar” Alice Marie Johnson’s prison sentence in 2018 and then pardoning her in August 2020.Footnote 96 Trump also pardoned the late boxing great Jack Johnson (whose 2018 posthumous pardon was backed by action star Sylvester Stallone, “Rocky Balboa” himself),Footnote 97 and entertainers Lil Wayne (pardoned in 2021) and Kodak Black (received a sentence commutation in 2021), among other recognizable names.Footnote 98
Like his recent predecessors, Trump also saved his most controversial clemency decisions until his “lame duck” period. After losing to Joe Biden in the 2020 presidential election, Trump pardoned his former NSA Advisor, Michael Flynn, just before Thanksgiving, a decision which the Associated Press characterized as “part of a broader effort by Trump to undo the results of a Russia investigation that shadowed his administration and yielded criminal charges against a half-dozen associates.”Footnote 99 Then, just before Christmas that same year, Trump pardoned his longtime friend Roger Stone, who had been a figure in Special Counsel Robert Mueller’s investigation into whether Russia tried to influence the 2016 presidential election.Footnote 100 Trump also pardoned his former campaign manager, Paul Manafort, and spared him from serving more than 7 years in prison.Footnote 101 He pardoned his daughter Ivanka’s husband's father, Charles Kushner, who had admitted committing multiple federal offenses.Footnote 102 Leaving the White House on January 20, 2021, Trump pardoned strategist Steve Bannon, with whom Trump had had a somewhat turbulent relationship.Footnote 103 Near the end of his first term, Trump also granted clemency to seven former Republican members of Congress facing federal legal entanglements: He pardoned Chris Collins, Duke Cunningham, Robin Hayes, Duncan Hunter, Rick Renzi, and Mark Siljander while commuting Steve Stockman’s sentence.Footnote 104
Before Donald Trump, presidents would generally wait until the end of their terms to grant clemency for their own personal reasons. Donald Trump disregarded that norm by using the clemency power to serve his own agenda throughout his first presidential term, although Trump, too, seemed to save his most controversial clemency decisions for his “lame duck” period. Still, Trump’s general attitude seemed unlike those of his recent predecessors, as he did not usually appear to be deterred by the potential political consequences offered by the ballot box, the judgment of one’s presidential legacy by history, or even impeachment. He rarely (more specifically, only about 11 percent of the time) relied on the Office of the Pardon Attorney’s advice.Footnote 105 By the end of his first term, the pattern was clear: Trump had committed a series of norm violations that helped to remove the stigma of personalized pardons and simultaneously enabled a future president to more easily follow Trump’s example.
7.2. Joe Biden’s late-term clemency record
For most of his presidency, Joe Biden granted clemency to enable prisoner exchanges with other countries or to lessen the federal penalties of drug offenders. His overall record over 4 years as president consisted of 80 pardons and 4,165 commutations. But more important than the number of clemency grants Biden eventually gave was how he waited until his “lame duck” period to make a series of controversial clemency decisions that were, in several cases, norm violations.
One of Biden’s most blatant norm-violating clemency decisions came on December 1, 2024, when Biden announced a full pardon for his son, Hunter Biden, who was convicted of federal crimes related to guns and taxes.Footnote 106 The first norm violation here was that presidents almost never pardon their own family members. Among modern presidents, similar examples before Biden were sparse: as noted earlier, Bill Clinton pardoned Roger Clinton, his half-brother, for a drug conviction and Donald Trump pardoned Charles Kushner, his daughter's husband's father, for several federal crimes.Footnote 107 A second norm violation came after Biden and his staff repeatedly denied he would offer a pardon to Hunter Biden, then he did so anyway.Footnote 108 This decision undercut one of Biden's favorite sayings: that he could be trusted after giving his “word as a Biden.”Footnote 109 A third norm violation came in the unusual clemency document itself, which “does not pardon specific offenses, but rather takes a rather broad time span and pardons anything, any crime that may have been committed during that time span,” as observed by Margaret Love.Footnote 110 Usually clemency documents list specific offenses being pardoned and do not offer coverage for long stretches of time such as the nearly 11 years (January 1, 2014–December 1, 2024) covered by the Hunter Biden pardon. Love also noted that the Hunter Biden pardon's closest analogue was likely the Richard Nixon pardon from 50 years prior.Footnote 111
President Biden committed another norm violation closer to the end of his term by moving the usual boundary line for the timing of clemency actions. The clemency case law notes that a pardon can be granted as soon as a federal crime has been committed.Footnote 112 As noted earlier, the Office of the Pardon Attorney's guidelines normally require pardon applicants to wait to apply for 5 years after either their conviction date or 5 years after their prison sentence has concluded.Footnote 113 The president has the discretion to ignore these guidelines, but modern presidents rarely do so. Biden stretched the reach of the clemency power and ignored the Pardon Attorney by simply doing what he wished with the clemency power as his time in office expired.
In a clemency document dated January 19, 2025, Biden pardoned—as noted in the document itself—
The members of Congress who served on the Select Committee to investigate the January 6th attack on the United States Capitol … the staff of the Select Committee … and the police officers from the D.C. Metropolitan Police Department or the U. S. Capitol Police who testified before the Select Committee.Footnote 114
Also included here but with their own unusual clemency documents were General Mark A. Milley and Dr. Anthony Fauci, whose pardons, like that of Hunter Biden, extended back to January 1, 2014.Footnote 115 What linked these clemency recipients, according to Politico, was that they “have been verbally attacked by Trump, and many of his allies have called for them to face criminal charges”; still, “[s]everal members of the Jan. 6 committee said last week they didn't want or need pardons because they did nothing wrong.”Footnote 116
In another clemency document also dated January 19, 2025, Biden granted pardons to several more family members: James B. Biden, Francis W. Biden, Valerie Biden Owens, Sara Jones Biden, and John T. Owens, that is, his two brothers, his sister, and their spouses.Footnote 117 The president did not add himself or First Lady Dr. Jill Biden to the list of those receiving clemency. Here, in contrast to family pardons by the presidents mentioned earlier, the Biden siblings and spouses had never been charged with committing a crime.
Biden’s pardons to the January 6 Committee members, staff and police witnesses, Dr. Fauci, Gen. Milley and Biden’s siblings and their spouses assume the possibility that a federal crime may have been committed even if it has not yet been discovered. This is highly unusual and possibly even unprecedented among modern presidential clemency practices. According to clemency expert Frank O. Bowman III, “No previous president has issued pardons to people he believed to be innocent of any crime who were not under active investigation, previously charged, or convicted.”Footnote 118
Biden's pardons violated established norms in several ways, as noted above. Their effects are magnified given that they occurred between the first and second presidential terms of Donald Trump, who has likely violated clemency norms more often than any modern president. One argument in defense of Biden’s actions was that he was merely attempting to protect presumably innocent individuals from a vindictive prosecution by the Trump Justice Department. Later events support that possibility.Footnote 119 However, Biden's decision to cross the line does more than provide some protection to likely targets of federal prosecution: it also provides several examples of a Democratic president who otherwise generally respected norms related to clemency suddenly dropping that approach, with clemency now repurposed into a defense against a potential attack from the federal criminal justice system.
Biden may have inadvertently helped clear a path for more clemency abuses by his successors of both major political parties—currently Trump, but at some point, potentially another Republican or Democratic president. Perhaps this explains why the Biden White House announced less than 2 weeks after the Hunter Biden pardon how Biden had claimed the modern-day record for the most clemency grants in a single day by an American president,Footnote 120 or why on January 17, 2025, he proclaimed, “With this action, I have now issued more individual pardons and commutations than any president in U.S. history.”Footnote 121 These attempts to reframe Biden’s clemency legacy and redirect attention away from his controversial end-of-term clemency decisions are unlikely to succeed. Indeed, Republicans in Congress were quick to cite Biden’s controversial end-of-term clemency decisions as justification for Trump’s January 6, 2021, pardons.Footnote 122
7.3. Donald Trump’s second-term clemency record
Amid a swirl of executive activity, President Trump remained focused on clemency throughout his early second term. Upon moving into the White House again, he quickly fell back into his first-term clemency patterns. He followed the dramatic January 6, 2021, pardons on January 20, 2025 (as discussed earlier) by granting clemency to other offenders in ways that seemed designed to appeal to his supporters by either rewarding political loyalty or making a political statement. As before, Trump has favored for clemency both his supporters, such as former New York mayor Rudolph Giuliani (although his pardon was merely symbolic) and former congressman George Santos, and celebrities, such as reality television stars Todd and Julie Chrisley, rap artist NBA YoungBoy, and actor Jay Johnston.
Trump has continued to disregard norms related to the Pardon Attorney since recapturing the White House. In an unprecedented move, he named Alice Marie Johnson, who had received a sentence commutation and a pardon from the president during his first term, to be his “pardon czar” in February 2025.Footnote 123 But Trump committed an even more serious norm violation with a decision more directly related to the non-partisan nature of the Office of the Pardon Attorney. According to former Pardon Attorney Elizabeth Oyer, the office has traditionally been led by “a nonpolitical appointee.”Footnote 124 But Oyer, a holdover from the Biden administration, was suddenly fired and claimed it was because she refused to agree that actor Mel Gibson, who had a past history of domestic violence, should be able to legally own a gun again.Footnote 125 Oyer’s replacement was Ed Martin, a dyed-in-the-wool Trump loyalist and advocate for conservative causes.Footnote 126 Martin made clear that the president's political goals would be part of the clemency process.Footnote 127
Still, even with his own choice for Pardon Attorney installed in the role, the president prefers to operate on his own. A November 2025 Pro Publica article found that “Only 10 of the roughly 1,600 people granted pardons had filed petitions to the Office of the Pardon Attorney, and even within that small group, some did not appear to meet the Justice Department’s standards and requirements.”Footnote 128 As USA Today noted in January 2026, Trump’s roughly 1,500 January 6, 2021, pardons have been joined by clemency for
77 people who faced charges and investigations on alleged interference in the 2020 elections, more than 100 individuals, and HDR Global Trading Limited, a cryptocurrency corporation. Of the 90 individual cases pardoned as of Jan. 20, 2026, just 12 were five years or more past the end of their sentenced time in custody or probation.Footnote 129
Another area of controversy related to Trump's clemency approach in his second term is how he has forgiven enormous amounts of money owed by offenders. In fact, as NBC News reported in January 2026, “Trump has pardoned more offenders with high fines or restitution than past presidents.”Footnote 130 In his first term, his “pardons nullified convictions that resulted in more than \$276 million in fines and restitution”; however, by 1 year into his second term, that number was already \$298 million, and was (presumably) rising.Footnote 131 Relatedly, “[o]ver half of Trump’s 88 individual pardons are for white-collar offenses, with money laundering, bank fraud and wire fraud among the most frequent crimes the president has wiped clean.”Footnote 132
President Trump committed another norm violation by challenging the finality of several of Joe Biden’s most controversial pardons. At 12:35 am on March 17, 2025, he posted a Truth on Truth Social that read, “The ‘Pardons’ that Sleepy Joe Biden gave to the Unselect Committee of Political Thugs, and many others, are hereby declared VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen.”Footnote 133 This sentiment was roundly rejected by clemency experts.Footnote 134 Months later, Trump announced an investigation by the Department of Justice into Biden's allegedly auto-penned pardons.Footnote 135
In his second term, President Trump has essentially ignored the Pardon Attorney, has favored — and forgiven fines owed by — white collar criminals, and has searched for ways to revoke clemency acts by his predecessor that are irrevocable. A president who focused on using pardons to forgive offenses committed by his political allies could, if acting on a large enough scale, allow, and even encourage, widespread violation of federal laws. If so, it would completely invert the purpose of the Pardon Attorney's pardon review process, which is to identify petitioners who have accepted responsibility for their past actions and tried to right their past wrongs.Footnote 136
As a “lame duck” ineligible to serve a third term, President Trump has continued to use clemency as he wishes while disregarding the possibility of impeachment, punishment at the ballot box, or a blow to his presidential reputation. The Republican majority in Congress has shown no indication that it would consider impeaching the president for his approach to clemency, and the mid-term elections are still months away. The president essentially has a blank check to pardon whomever he would like in the meantime.
8. Conclusion
As clemency scholars have predicted for years, presidents of both major political parties are increasingly abusing the clemency power and casting aside traditional norms to do so. These presidents have ignored the generally accepted rationales for clemency (to show mercy or serve the public interest) in favor of serving their own personal interests. They have taken advantage of the broad scope and minimal oversight of the clemency power in Article II of the Constitution and have increasingly pursued their own self-interest.
The January 6, 2021, pardons are an example of how at least one modern president has granted a mass pardon not to pursue national reconciliation, but to protect political supporters from punishment by the criminal justice system. On an individual level, several recent presidents have ignored or bypassed the Office of the Pardon Attorney and its guidelines in favor of using clemency for their own political or personal gain.
George H. W. Bush’s Iran–Contra pardons were norm violations that showed future presidents that granting pardons to top-ranking administration staff can be done with minimal political penalty at the end of a “lame duck” president’s term, especially when succeeded by a president from the other major political party. That successor, Bill Clinton, granted conditional clemency to members of the FALN and a pardon to Marc Rich that were norm violations that served another “lame duck” president’s own personal and political goals. Clinton’s successor from the other major political party, George W. Bush, granted a commutation to Scooter Libby, a norm violation that, much like the Iran–Contra pardons, showed future presidents that granting clemency to top-ranking administration staff can be done with little political penalty at the end of a “lame duck” president’s term. These self-interested pardons were—and still are—clemency abuses, but none of these three presidents was punished, and their approach to minimize political risk has been duplicated by their successors. These clemency abuses by presidents from both major political parties have over time helped to normalize ever more extreme actions by their successors. Each of these presidents waited until the end of their terms to grant self-interested clemency decisions to maximize political protection.
However, Donald Trump regularly disregarded political consequences and used the clemency power to serve his own agenda throughout his first presidential term. He committed such a wide-ranging series of norm violations that he has helped to remove the stigma of personalized pardons and thereby enabled a future president to more easily follow his example. Joe Biden generally used clemency in traditional ways, at least until December 2024. But after Vice President Kamala Harris's election loss to Donald Trump in 2024, Biden’s “lame duck” period featured a series of controversial pardons to his family members and others. Back in the White House in 2025, Trump has returned to his old patterns with clemency, rewarding political allies and supporters and essentially ignoring negative stories in the media about his decisions. Clemency abuses destabilize the criminal justice system and, especially when undertaken by presidents of both major political parties, can lead to durable shifts in presidential behavior with the clemency power, creating a new, more cynical normal where the public becomes conditioned to presidents treating the clemency power as just another way to pursue their political interests instead of as a tool for correcting injustice, as originally intended.
President Trump’s clemency free-for-all has demonstrated the flexibility of the clemency power and its boundless potential under a president that does not feel restrained by prior norms. However, Trump did not emerge from nowhere after his election as president in 2016 or 2024. Rather, the groundwork for someone to use clemency as Trump has done was laid over the past several decades, fueled by self-interested clemency decisions made by presidents from both major political parties who were willing to undermine existing norms to pursue their own political goals. The clemency power is being repurposed right before our eyes: what has historically been a constitutional power designed to achieve justice is continuing to morph into simply another tool for presidents to use to pursue their own self-interest.
Competing interests
The author has no conflicts of interest to report.
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