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| Liz Oyer |
Oyer, who served as pardon attorney under President Joe Biden from 2022 until March 2025, testified last April to Congress that she was fired in retaliation for refusing to reinstate actor and Trump supporter Mel Gibson's gun rights following his domestic violence conviction, and that Justice Department resources were being misused "to do political favors for friends of the president, for loyalists."
The Trump administration has denied the accusations.
Trump kicked off his second term with a flurry of clemency actions and has gone on to pardon a growing number of white collar defendants. At the same time, he has said that his administration intends to crack down on fraud with the creation of a federal anti-fraud task force, a new Justice Department division for national fraud enforcement and a new assistant attorney general role to lead the section.
Oyer, who served for a decade as a federal public defender before she was appointed pardon attorney, spoke recently with Law360 about how the pardon process has changed, the impact the shift might have on the DOJ and how the system could be reformed. This interview has been edited for length and clarity.
How does Trump's use of the pardon power differ historically from past presidents?
Liz Oyer: Most presidents have generally adhered to a consistent set of criteria for evaluating and granting pardons. Those criteria are memorialized in the Justice Manual, which is sort of like the Bible for employees of the Justice Department, and has generally been used by the White House as well in evaluating applications for clemency. This administration has veered very far from those traditional principles, and this president appears to grant clemency based much more on personal relationships, political considerations and financial considerations, as opposed to traditional, merit-based considerations. The Justice Manual looks at factors like remorse, rehabilitation, service to the community, the length of time that has passed since the conviction — things that would indicate that the individual has changed and rehabilitated and moved on with their life in a different direction.
How do you think these pardons might be affecting the Justice Department and its enforcement efforts?
LO: Donald Trump's pardons have greatly damaged the integrity and legitimacy of the justice system and have undermined the work that the Justice Department is doing on an ongoing basis. Trump has granted pardons many times to individuals who have not yet even been sentenced for their crimes, or who have served little or none of their time, essentially allowing those folks to go unpunished, whereas other people convicted of the same crimes are serving significant sentences. So that creates a two-tier system of justice where friends and allies of Donald Trump can get special treatment, and those who don't have those types of connections get another type of treatment.
Trump's pardons have also created setbacks for some important enforcement priorities of the Justice Department. For example, his pardon of Juan Orlando Hernandez, the [former] president of Honduras, unraveled what was a decade-plus investigation and prosecution into a very complex drug trafficking conspiracy. In a single second, with the stroke of a pen, Donald Trump was able to unravel a prosecution that took years of work by dozens of DOJ personnel, to the detriment of the American people who were being harmed by this drug trafficking.
I think it's left a lot of prosecutors and investigators really baffled why the president would take this extraordinary step to undo their years of hard work, particularly when the work they have done aligns with the stated priorities of this administration. It really just calls into question whether any of the stated priorities of Donald Trump's Justice Department are genuine, or whether they're all simply for show.
Do you see any differences in the way Trump is using his clemency powers now, versus during his first term?
LO: During Trump's first presidency, there were sort of two categories of clemency grants. There were those that were clearly based on political, personal or financial connections. And then there were a group of legitimate clemencies that went to people who were deserving of second chances, people who had served very lengthy prison sentences and demonstrated rehabilitation and proven themselves deserving of a second chance. That second group has fallen by the wayside during this administration. We've seen almost exclusively clemencies granted on the basis of personal connections, political connections or financial transactions. The quid pro quos that we're seeing now are much more obvious and out in the open than during the first Trump presidency. And the lack of traditional vetting is a pervasive feature of the clemencies that are being granted under this presidency.
Donald Trump appears not to be relying at all on the career professionals in the office of the pardon attorney, who ordinarily would vet applicants for clemency and provide recommendations to the president so that the decision can be based on complete information. Instead, clemency applicants are going directly to the White House. They're bypassing the vetting process, and as a result of that, clemency is being granted to people who, in some cases, are very quickly going back out and committing new crimes. In other cases, [clemency is being granted] to people who have very serious prior criminal histories that likely would have disqualified them from being considered for clemency under traditional criteria.
One of the most extraordinary things to me has been to see the rates of recidivism among the January 6 pardon recipients. These are people who are engaged in conduct that is dangerous to others and should not, frankly, be receiving executive clemency. But because of the lack of vetting, they're getting the benefit of presidential pardons.
It appears that a cottage industry has sprung up under the Trump administration in which lobbyists, advisers and others who say they have connections in the government are charging large sums to clients who hope to get clemency. Was this happening behind the scenes before Trump, but now it's more out in the open? Or is this something different that we're seeing here?
LO: This is definitely something different. Clemency has become totally transactional under Donald Trump. That's not the way it had been in the past. When I was pardon attorney, approximately 90% of people who applied for clemency did not have a lawyer representing them. We intentionally designed the clemency application to be one that could easily be completed by a person who did not have access to a lawyer to assist them. And it was not detrimental to the applicant to submit the application on their own without the benefit of the lawyer. The process was intended to treat everyone equally and not to disadvantage those who lacked the financial resources to hire counsel. That has completely changed. I'm not aware of any clemencies that have been granted by Donald Trump to someone who did not have a well-connected attorney representing them, somebody who's got connections with this political administration. People are also spending obscene amounts of money to hire lawyers and lobbyists to advocate for their clemency cases. There appears to be a feeding frenzy among lawyers and lobbyists, some of whom actually have access to offer and some of whom don't, but who are all charging massive fees to people who are desperate to be considered for a presidential pardon. That's unprecedented. It's unlike anything that we've ever seen in the clemency space before.
White collar attorneys I've talked with have expressed some frustration about not really having a clear sense of the path to a pardon under Trump. Are you also confused or do you have a more clear sense of how the pardon process works now?
LO: There is no clear path anymore. There is no established process. When I was pardon attorney, the overwhelming majority of applications came through the Office of the Pardon Attorney, were initially evaluated and vetted by the career nonpolitical staff of the Office of the Pardon Attorney, and then a recommendation was made to the president based on a longstanding set of established criteria. It was transparent to the public how you apply, what criteria were being applied and what the Justice Department was looking for in making recommendations to the president. It's no longer at all transparent to the public. In fact, the process of applying through the Justice Department appears to be a dead end. There is a backlog of approximately 20,000 clemency applications that are just sitting with the Office of the Pardon Attorney right now, being ignored while clemency is granted to those who are going directly into the White House and skipping the traditional application of vetting.
How does that backlog compare to the backlog that you had when you were pardon attorney?
LO: When I came into that position, there were about 18,000 clemency applications pending — and that was the result of the fact that during Trump's first presidency he also did not keep up with the applications that were coming in through the Justice Department. So that pile grew massively during Trump's first presidency. It was then all still sitting there when Biden came into office and continued to grow. My staff worked tremendously hard to get through as many of those applications as possible and to make as many recommendations to the president as possible. We made recommendations in somewhere around 15,000 cases during the three years or so that I was pardon attorney. And by the end of my tenure, there were less than 5,000 cases pending. That number has now ballooned back up to somewhere around 20,000.
Do you have an understanding of Alice Marie Johnsons' role as pardon czar and her involvement in the clemency process?
LO: Alice Marie Johnson is a clemency recipient herself. She's someone who was granted a commutation and then pardoned by Donald Trump during his first presidency. She fits very well the profile of somebody who earned a second chance through clemency. I believe that she is someone whose heart is in the right place and wants to see opportunities for second chances granted to people like her. Unfortunately, her impact has been limited, and most of the people who have gotten clemency from Donald Trump are not those who deserve it, but rather those who have leveraged political connections or wealth to get clemency.
The OPA website keeps what you might call a running list of clemency recipients. But do you think that tells the whole story? Do you think that there are people who might be getting pardons and commutations who aren't publicly included on that list?
LO: It certainly seems possible. The reporting of clemency grants has not been timely during this administration. Often, clemencies are being reported only after the fact, when they come to light through reporting by journalists or other means. The administration is not announcing grants of clemency in a systematic way, as has been the practice throughout history. They're not issuing press releases explaining or justifying the clemency grants or even announcing them promptly to the public. So that is a departure from traditional practice, and it certainly raises the question of whether there are other clemencies that have been granted that we don't yet know about. One possibility is that the president has already written preemptive pardons for members of his administration, for cabinet members and advisers or members of his family. It would not be surprising if he's already written up those pardons, and they're sitting in a drawer somewhere, just in case.
It seems like more attention than ever is being paid to the pardon powers of a president. Do you think that the clemency process might change under the next administration as a result of what's happening now?
LO: It's very hard to force reforms on the clemency process, because it is a broad constitutional power entrusted to the discretion of the president. It would take a constitutional amendment to rein in or limit the president's clemency power. I hope that what we will see is an effort by Congress to promote greater transparency and accountability in clemency.
That would require disclosures of political donations, lobbying fees and attorneys' fees that are paid in the clemency process. That would help to shed a light on the clemency industry that has emerged under Donald Trump, and that could be done without infringing on the president's constitutional power. I'm not optimistic that we will see any type of constitutional reform.
One thing that I think is important to keep in mind in considering the possibility of clemency reform is that the role that clemency was intended to play is to temper justice with mercy, to create a mechanism by which people who have been treated too harshly by the criminal justice system can receive a second chance or mitigation of their punishment.
There are thousands of people out there who are deserving of that type of relief. There are people who have earned the opportunity to be considered for clemency through hard work and rehabilitation. Those people are the ones who are really losing out in the system that Donald Trump has created. It would be a shame if we closed off the possibility of clemency for those deserving people, because it has been so badly abused by this president to the detriment of those who aren't deserving. I hope that Congress, in thinking about clemency reforms, will consider other pathways for granting second chances to those who truly deserve them.
--Editing by Alex Hubbard.