by Jeffrey Crouch – American University & UPK Author
President Donald Trump made no secret of his opinion of Army Private Chelsea Manning’s critique of former President Barack Obama when he tweeted: “Ungrateful TRAITOR.” Yet before considering what President Trump might do with the clemency power, let’s take a last look at President Obama’s record.
Perhaps the most controversial clemency decision of the Obama years came on January 17, 2017, when he commuted Manning’s 35-year prison sentence. Manning has served about seven years, and will be able to walk out of prison on May 17. As someone who turned over classified documents to WikiLeaks, she is one of the more recognizable recipients of Obama’s presidential mercy.
Given Obama’s long-standing preference for avoiding high profile clemency cases, it was somewhat surprising that he saw fit to grant clemency to Manning at all. Still, the president had hinted a few days earlier that clemency might be in the cards. His press secretary took pains to distinguish between Manning and Edward Snowden, another infamous leaker of classified materials. Snowden has been living in Russia since 2013. Unlike Manning, he did not receive presidential mercy.
For the first three-quarters of his presidency, Obama was not much different from George W. Bush. In eight years, Bush had pardoned 189 offenders and commuted 11 sentences out of roughly 11,000 applications for clemency. By December 17, 2014, President Obama’s clemency record was sparse — he had pardoned only 64 and had commuted just 21 sentences. However, by the time Obama left office, he had made a remarkable turnaround, pardoning 212 and commuting a whopping 1,715 sentences. Of course, one must consider Obama’s totals alongside the huge number of applications he received: 3,395 petitions for pardon and 33,149 requests for commutation. He received many, many more applications for clemency than any of his recent predecessors.
Why the influx of applications? Obama launched a new clemency initiative in April 2014. The administration wanted to prioritize for clemency review those offenders who met a number of specific criteria. These criteria include the fact that “[t]hey are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today,” and that they are otherwise low risk, minor offenders.
In response to Obama’s announcement, five interested groups pooled resources and formed a new organization, Clemency Project 2014, to help locate and direct good candidates for clemency to the Department of Justice. Many applicants – and later, many commutation recipients – were low-level drug offenders who were serving disproportionate sentences. With all of this activity brewing, Obama slowly picked up the pace of pardoning. At the same time, he offered an enormous number of sentence commutations, starting with a rather modest 22 on March 31, 2015 and, after several other batches, ending with his last group of 330 on January 19, 2017.
Obama’s final total of 212 pardons is a bit low for a recent two-term president: alongside George W. Bush’s totals mentioned above, consider that Bill Clinton pardoned 396, George H.W. Bush pardoned 74 (in one term as president), and Ronald Reagan pardoned 393. However, Obama’s 1,715 commutations put Obama in a class by himself: Clinton commuted 61 sentences, while George H.W. Bush (again, in a single term) commuted only three and Ronald Reagan commuted 13 sentences.
Aside from the Manning commutation, Obama made a few other higher profile clemency decisions on his way out the door. He pardoned General James E. Cartwright, formerly a trusted advisor on foreign affairs issues, for making false statements to the Federal Bureau of Investigation. Cartwright received Obama’s good news before he was sentenced for his offense. Obama also commuted the 55-year prison sentence of Oscar Lopez Rivera. Lopez was a leader of the pro-Puerto Rican independence group, “FALN,” and had been in prison for 35 years. Interestingly, Lopez and other members of his organization had received the option to accept conditional clemency from President Bill Clinton in 1999, but Lopez declined. Other famous figures that received clemency from Obama in his final days include a pair of tax offenders: Ian Schrager, credited with establishing Studio 54 and luxury hotels, and Major League Baseball Hall of Famer Willie McCovey.
Despite considerable press attention, Obama declined to offer clemency to several notable offenders. Perhaps most prominently, he passed on pardoning Edward Snowden (as noted earlier) and Leonard Peltier, a Native American activist who is in prison after being convicted in 1977 of shooting and killing two FBI agents. Unlike Clinton and George W. Bush, who each granted one posthumous pardon, Obama decided against doing so, although he had heard from supporters of the late boxer Jack Johnson and late “Back to Africa” proponent Marcus Garvey.
Which brings us back to President Trump. When might he decide to exercise his clemency power? If he follows the example of his two most recent predecessors, it will be a while – both George W. Bush and Barack Obama waited nearly two years before offering pardons or commutations. Trump may not pay attention to clemency for a while either, considering his ambitious legislative agenda that includes building a border wall, implementing tax reform, and other large-scale projects. That would be a shame, because the presidential pardon power has for hundreds of years been an important tool for presidents to use to show mercy. It will be ready for Trump when (or if) he decides to call upon it.
Dr. Jeffrey Crouch is an assistant professor of American politics at American University. He is the Reviews and Book Editor for AU’s Congress & the Presidency journal. His first book, The Presidential Pardon Power, was published by the University Press of Kansas in 2009.