The Road to Clemency From Trump Was Closed to Most Who Sought It

WASHINGTON — Eliyahu Weinstein got word that two-thirds of his 24-year sentence for investment fraud was going to be commuted by President Donald J. Trump after the White House chief of staff called a well-connected Washington lobbyist who had been hired to lead his clemency push.

Lawrence McCarroll learned that the petition he had filed with the Justice Department and the letter he had sent to the president had failed to win him a commutation of the remaining six years on his 33-year sentence for a nonviolent drug offense when his mother emailed from her home in Kenosha, Wis., to tell him his name had not appeared in news reports about Mr. Trump’s final round of clemency.

“I cried and cried and cried myself to sleep,” said Mr. McCarroll’s mother, Judy McCarroll. She said she was left with the impression that the clemency process favored people who “paid thousands, maybe millions, or probably did favors for Trump,” adding: “You had to be connected. You had to be in that inside clique. And if you weren’t, you don’t have anything coming.”

The contrast between the treatment of Mr. Weinstein and Mr. McCarroll underscores the two very different systems for determining who received clemency during Mr. Trump’s presidency.

In one system, people like the McCarrolls mostly hung their hopes on the regular process run by the Justice Department, which often took years to produce a response, if one came at all.

In the other system, people like Mr. Weinstein skipped the line and got their petitions directly on the president’s desk because they had money or connections, or allies who did. The team working for Mr. Weinstein’s release included Alan M. Dershowitz, one of Mr. Trump’s lawyers during his first impeachment.

It is this latter system through which Mr. Trump awarded the vast majority of his pardons, which wipe out convictions, and commutations, which reduce prison sentences.

Of the nearly 240 pardons and commutations issued by Mr. Trump, only 25 came through the rigorous process for identifying and vetting worthy clemency petitions overseen by the Justice Department, according to a tally kept partly by Margaret Love, who ran the department’s clemency process from 1990 to 1997 as the United States pardon attorney. The system has a backlog of 14,000 applications, including one from Mr. McCarroll.

The other pardons and commutations came through an ad hoc White House process that favored applications benefiting or pushed by Mr. Trump’s allies, friends and family.

In addition to rewarding people like Mr. Weinstein whose allies could afford to buy access to the highest levels of the administration, the results included pardons for people with direct personal relationships with the former president, such as his longtime adviser Roger J. Stone Jr., his former chief strategist Stephen K. Bannon, his former campaign chairman Paul Manafort and his son-in-law’s father, Charles Kushner.

The Justice Department had recommended against clemency for some of the people granted it by Mr. Trump. Other beneficiaries of Mr. Trump’s commutations, including Mr. Weinstein, had only recently filed petitions with the department that were listed as pending. And some pardon recipients — including Mr. Stone, Mr. Bannon and Mr. Manafort — would not have been eligible under the department’s rules, which require people to wait five years after being released from confinement to apply.

Presidents are not obligated to heed any rules or guidelines on granting clemency, which is among the most unchecked and unilateral of executive powers.

But legal scholars, pardon lawyers and advocates for greater use of clemency say Mr. Trump’s approach exacerbated flaws in the process, and extended the inequality that pervades the justice system to a constitutional power that is intended to be a check on that system.

“This is the ultimate corruption of a system that was set up to serve a public purpose, but has been privatized to allow anybody who has connections to get to the front of the line,” said Ms. Love, who now represents clients seeking pardons.

While criminal justice reform advocates say the Justice Department’s clemency process should be expedited and improved, some praise the approach taken by former President Barack Obama, who issued more than 1,900 clemency grants, mostly to people who had been recommended by the Justice Department.

“When we worked on clemency during the Obama administration, it was based on objective criteria, not recommendations of some political ally or some celebrity,” said Kevin Ring, who served time in federal prison for his role in the Jack Abramoff lobbying scandal and is president of the criminal justice reform group FAMM, formerly known as Families Against Mandatory Minimums.

The group runs a closed Facebook forum for 7,000 family members of inmates, which filled with anxious but excited messages of prayer and hope for the release of loved ones in the run-up to Mr. Trump’s final round of clemency grants, issued 12 hours before he left office.

“And I was incredibly sad, because I thought you really have next to no chance, because he is not using the process that your loved one would even be in the mix for,” Mr. Ring said.

Even some beneficiaries of clemency grants by Mr. Trump concede that the process is not equitable.

There are “so many thousands of inmates that never get a chance to even have their names put in there, so that’s just so unfair,” said Barry Wachsler, who paid legal fees associated with Mr. Weinstein’s court appeals and clemency push. “Does it help if you have money and the right connections? You know, I guess it does. It definitely does.”

A Long Island businessman, Mr. Wachsler said he met Mr. Weinstein by chance five years ago when he went to visit a friend in federal prison who introduced the two men.

Mr. Weinstein, 45, had pleaded guilty in 2013 to charges related to a Ponzi-style real estate scheme that caused $200 million in losses, much of which came from investors from an Orthodox Jewish community in New Jersey with which he was associated. Prosecutors said he gained trust from potential victims by enlisting rabbis to vouch for him and making donations to Jewish organizations with his ill-gotten gains.

In 2014, he pleaded guilty to charges related to defrauding additional investors, including by falsely claiming to have access to coveted Facebook shares in the company’s forthcoming initial public offering, using the funds to pay legal fees related to his earlier indictment.

“Weinstein shamelessly exploited investors’ trust, using doctored documents for properties he didn’t own — including in a town that doesn’t exist — and continued to commit crimes while out on bail,” Paul J. Fishman said in a statement issued while he was overseeing the case as the United States attorney in New Jersey. Mr. Fishman added that Mr. Weinstein spent proceeds of his fraud “on fancy cars, jewelry and gambling trips,” as well as Jewish artifacts.

After becoming convinced that Mr. Weinstein was poorly served by his lawyer at trial, resulting in too harsh a sentence, Mr. Wachsler, who said he visited Mr. Weinstein 150 times in prison, hired new lawyers to appeal the case. Mr. Dershowitz joined the legal fight, explaining that he was retained by a “prominent” Jewish organization that he declined to identify.

After Mr. Trump lost his re-election, the strategy shifted to winning clemency from the departing president. Mr. Dershowitz, who also was paid to assist others who got commutations, advised on how to make the case for Mr. Weinstein. A clemency petition was filed with the Justice Department by the lawyers paid by Mr. Wachsler, who said he spent “a lot of money” to help Mr. Weinstein because he wanted to remedy what he saw as a grave injustice. He also hired the lobbyist Nick Muzin, paying him at least $75,000 last month, according to lobbying filings, to work his contacts in the administration.

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Presidential Pardons, Explained

President Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. Here’s some clarity on his ability to pardon.

    • May a president issue prospective pardons before any charges or conviction? Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court said the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” It is unusual for a president to issue a prospective pardon before any charges are filed, but there are examples, perhaps most famously President Gerald R. Ford’s pardon in 1974 of Richard M. Nixon to prevent him from being prosecuted after the Watergate scandal.
    • May a president pardon his relatives and close allies? Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming. In 2000, shortly before leaving office, President Bill Clinton issued a slew of controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.
    • May a president issue a general pardon? This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.
    • May a president pardon himself? This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case which gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
    • Find more answers here.

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