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Time Is Running Out to Get a Pardon From Trump

Bloomberg logo Bloomberg 1/5/2021 David Yaffe-Bellany

(Bloomberg Businessweek) -- The week before Christmas, President Donald Trump issued a series of pardons and commutations, many of them for his personal associates and political loyalists: his son-in-law’s father, Charles Kushner; former operatives Roger Stone and Paul Manafort; and two former GOP congressmen. Hardly any of the 49 people who received clemency were vetted by the U.S. Department of Justice’s pardon office.

Trump has largely wrested the clemency process from the Justice Department, turning it into a lobbying bonanza that has outraged Democrats. But he has also given hope to people like Hershy Marton.

For months, Marton, the 26-year-old chief executive of a small home-care agency in Brooklyn, has addressed a long string of impassioned tweets to the president. He’s contacted dozens of legislators, urging them to write letters to the White House. And he’s promoted a website featuring endorsements from the likes of Alan Dershowitz.

The goal of Marton’s campaign is to secure a presidential commutation for his uncle, Sholam Weiss, a New York businessman who was sentenced in the early 2000s to more than 800 years in prison for money laundering and other crimes. Weiss, 66, isn’t an inherently sympathetic figure. He fled the U.S. while out on bail and partied with prostitutes at a luxury hotel before the authorities tracked him down in Austria. But the case has haunted Marton’s family for more than two decades. “It’s been like a stone in the heart,” Marton says.

In the waning days of the Trump administration, he sees a chance for redemption. “Trump doesn’t care what anyone says. I think we have a shot,” Marton says. “He’s on Twitter. He sees what’s going on in the world. We had some pretty big people retweet [us] sometimes.”

The president’s willingness to do favors for his friends and to champion causes promoted by conservative media has emboldened everyone from fringe figures in the Mueller investigation to the desperate relatives of lower-profile prisoners to lobby the White House for clemency. “There’s no doubt a great deal of opportunity in the dysfunction,” says Margaret Love, a former U.S. pardon attorney who now helps clients navigate the process. “There’s no pretense of it functioning fairly. Anyone who can spend full time lobbying and full time writing letters and full time trying to get access to the levers of power may well have a pretty good chance.”

For years, criminal justice reform advocates have campaigned for a fairer, more streamlined pardon process. They expect to see President-elect Joe Biden revert to a more rational system in which the White House evaluates clemency petitions that meet clear criteria—for instance, a petition from a longtime prisoner who would face a shorter sentence under current laws. And Biden has promised to use his powers broadly to help people convicted of certain nonviolent drug crimes.

But consensus is growing that any serious solution to the chaos of the clemency system will have to reckon with issues that long predate Trump.

Under the standard process, clemency seekers submit applications to the Justice Department, where the Office of the Pardon Attorney determines whether the petitions meet the criteria for a pardon or commutation. Then the deputy attorney general reviews those recommendations and submits a set of files to the White House.

Trump has essentially cut the department out of the process, establishing a White House panel to oversee clemency and accepting informal recommendations from celebrities such as Kim Kardashian West, who successfully lobbied the president in 2018 to grant clemency to Alice Johnson, a nonviolent offender convicted for her role in a drug operation.

graphical user interface, chart: Influences on Trump’s Pardons © Bloomberg Influences on Trump’s Pardons

“I don’t know what process they’re doing. I have no idea,” says Norman Reimer, who runs the National Association of Criminal Defense Lawyers, which delivered a set of clemency petitions to the White House in October, including one for Weiss. “It’s an amorphous situation.”

Trump has granted a total of 94 pardons and commutations, far fewer than Barack Obama or George W. Bush issued, and only seven of those cases appear to have been recommended by the pardon attorney, according to data compiled by Harvard Law School Professor Jack Goldsmith. More than 14,000 clemency seekers are waiting for verdicts on their applications to the Justice Department.

But that backlog is hardly a new phenomenon. In 2014, the Obama administration unveiled a clemency initiative that created new criteria for commutations, with as many as 10,000 inmates expected to qualify. The administration ultimately granted 1,696 commutations, disappointing many reform advocates. To reach the president, each petition had to travel through a bureaucratic maze consisting of at least six layers of review across multiple government offices. A staffing shortage meant that thousands of petitions were never reviewed.

President Obama’s pardon attorney, Deborah Leff, resigned in early 2016, complaining that higher-ups in the Justice Department were reversing the pardon office’s recommendations and that the administration had failed to provide sufficient staffing.

Larry Kupers, the deputy pardon attorney at the time, remembers hiring a batch of new lawyers to work on the department’s team evaluating clemency applications. After blowback from Congress, he says, Attorney General Loretta Lynch cut his budget. “I had to call 10 lawyers and say, ‘Thank you, I’m sorry, but we have to withdraw the offer we made,’” Kupers says.

A 2018 report on the Obama clemency initiative by researchers at New York University documented a trail of missed opportunities and seemingly arbitrary decisions. In one case, the report said, two brothers with similar profiles who’d been sentenced for the same drug operation sought clemency; one petition was granted, while the other was denied.

The NYU report called for the creation of a commission outside the Justice Department to make clemency recommendations. Kupers advocates a different approach: Keep the process in the department, but give the pardon attorney the power to send recommendations directly to the White House, eliminating layers of review.

In his final days in office, Trump is expected to continue issuing pardons and commutations—subject only to his usual unpredictable impulses—and a wide array of white-collar prisoners are reportedly jockeying for his attention. That group includes Weiss, who’s hired the Tolman Group, a lobbying firm, to work on his clemency case, according to federal records.

In early December, a judge revealed that prosecutors were investigating a possible bribery scheme in which a federal prisoner may have offered political donations in exchange for clemency. Weiss was not involved. But Marton, his nephew, worried that all the talk of bribery and scandal would intimidate the White House, leading to fewer pardons and commutations. He was relieved when he saw Trump’s reaction—an all-caps tweet decrying “fake news.”

“I thought, ‘Thank God,’” Marton says. “We’ve still got a chance.”


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