In the wake of President Donald J. Trump's last-minute pardons to well-connected allies and applicants, a Democratic senator is proposing legislation to require more transparency around the presidential pardon process and more disclosure by those in office. pressure on behalf of those seeking clemency. .
Sen. Richard Blumenthal, a Connecticut Democrat and former prosecutor, plans to introduce a measure aimed at raising public awareness about the often opaque circumstances surrounding presidential pardons. It would also require more notifications to the Justice Department and consultations on the potential effect any pardon would have “on the success of any ongoing investigation or prosecution.”
His legislation follows New York Times reporting on Trump's intervention in the case of Jonathan Braun of New York, whose drug trafficking sentence Mr. Trump shortened on his last day in office. The commutation caught the Justice Department by surprise and eliminated the leverage federal prosecutors had over Braun as they sought to recruit him as an informant in an investigation into predatory lending, a field in which Braun was active.
“Right now the process is so open to corruption that a lot of things can go completely unnoticed without anyone knowing,” Blumenthal said.
“Here we require not just disclosure,” he said, “but an impact statement to give the investigative agencies, the professionals and the Department of Justice the opportunity to say, wait a minute, we have this guy under investigation.” . , or he is giving us information and we will lose everything and he will not be a witness.”
William P. Barr, the Trump administration's attorney general who had left when Braun's commutation occurred, previously told The Times that when he took over the Justice Department, he discovered that “pardons were being granted without any investigation by of the government”. department.”
The legislation would require administration officials who become aware of a possible pardon to immediately notify the Department of Justice's Office of the Pardon Attorney. That office would then begin producing an impact statement on the potential pardon to gather input from prosecutors and victims.
Under Trump, the White House often overlooked the office of the pardon attorney, which has historically consulted with the White House and provided expertise on clemency requests.
Blumenthal's measure also seeks to close what he called a “loophole” that allows those who receive money to lobby for pardons to escape the public record if the effort does not exceed 20 percent of the time spent with a client. His bill would require lobbying registration “regardless of the percentage of the services provided by the individual to that client that consist of lobbying activities.”
In the past, it has proven difficult to determine who approaches the White House for pardons and how much they are paid in what can be a lucrative venture. Trump associates asked for six-figure sums to intercede on behalf of those seeking clemency.
In Mr. Braun's case, he told The Times that he had no idea how the commutation of his sentence came about. But he and his family had enlisted the help of prominent advocates like Alan Dershowitz, a lawyer with ties to the Trump White House, and the Braun family had connections to the family of Jared Kushner, the president's son-in-law.
Blumenthal faces a steep path to advance his legislation, which is the latest in a series of measures drafted by both Democrats and Republicans over the past 20 years to allow greater public scrutiny over how pardons are granted. Republicans are likely to see it as a targeted attack on a potential Trump administration, although some have proposed similar ideas in the past.
The bill is also likely to attract legal challenges, since the Constitution gives the president broad authority to pardon.
“It's not the way I would have written the Constitution, but that's what it says, so we have to respect it,” Blumenthal said. “He can do whatever he wants.”
But he and others who have studied the pardon process said Congress has the ability to establish some checks as long as the legislation does not affect the president's pardoning authority. They say greater public information and new lobbying rules do not appear to directly affect the ability to pardon.
“My view is that a carefully crafted legislative package that does not limit the president's power in any way but simply imposes transparency requirements on him, along with greater transparency in pushing for pardons, would have a fighting chance in court,” said Norm Eisen, former White House ethics adviser now at the Brookings Institution.
He noted that some restrictions on presidential pardons had withstood legal scrutiny, including the fact that they can only be granted in federal cases, not state cases, and not in civil actions.
“The bottom line is that while the pardon power is broad, there is legal and historical precedent for applying some limits,” he said.
Presidents of both parties have come under fire for their pardons, particularly Bill Clinton's last-minute pardon of Marc Rich, an oil trader who had been accused of tax evasion. That pardon became the subject of heated political debate and a federal investigation that ultimately ended without charges.
Blumenthal's legislation would also require the White House to publish a justification for any pardon in the Federal Register and on the official presidential website on the day it is granted.
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