Edited by Thomas L Root, MA JD

Vol 12, No 9

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Pardon Our Mess At Pardons Office

Harmless Error Matters, Not Categorical Misstep, 1^st Says

Everybody’s Talking at Me

Smarter Sentencing Act is Back

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PARDON OUR MESS AT PARDONS OFFICE

The Dept of Justice Office of Pardon Attorney has always been rather opaque. Under the Constitution, the President holds unreviewable clemency power. However, since 1789, various government offices have provided the President with administrative support for the exercise of executive clemency.

In 1865, a DOJ office was formally delegated the responsibility of assisting the President in vetting clemency petitions. It became the “Office of Pardon Attorney” in 1894. Historically, presidents have relied on OPA’s pardon review process to rely on the pardon attorney process before making pardons, but they are not required to do so.

OPA used to apply five standards for someone to be considered for clemency, including conduct since conviction, seriousness of the offense, acceptance of responsibility for the crime, the extent of punishment already suffered (especially collateral consequences), and references from other (preferably politically connected) people.

No more. A troubling New York magazine article last week detailed the mess that OPA has become, and the implication for federal prisoners without rich parents or powerful friends.

Elizabeth Oyer, who headed OPA when Trump came into office, was the first former public defender to lead the office. Her staff of 45 was responsible for reviewing the cases of thousands of offenders to determine who was worthy of clemency. But within hours of President Trump taking office, “she was cut out of the process, which was rerouted from the top down.” Oyer told New York that she began learning about Trump clemency grants “when they popped up in the news.”

Oyer was fired last March when she refused to agree that actor and friend of Trump Mel Gibson should have his gun rights restored. Gibson was disqualified under 18 USC 922(g)(9) because of a misdemeanor conviction for violence against his ex-girlfriend and the mother of his 1-year-old daughter at the time.  New York described Oyer’s firing as “a death knell for the office, according to some former staffers.”

“The office has been totally decimated,” an ex-staffer was quoted as saying. The office is down from 45 to about 15 employees. Many took buyouts when Elon Musk’s DOGE offered them last April. “Others,” New York said, “quit rather than stick around in an office where their work was being ignored.” (DOJ, of course, denies that OPA has been sidelined).

Two people appear to be in charge. Alice Marie Johnson, the “pardon czar” Trump appointed a year ago, – a former federal prisoner serving life for a cocaine trafficking conspiracy before Trump commuted her sentence in 2018 (and later upgraded her to a full pardon) – works out of the White House. “Some ex-staffers hoped Johnson would maintain the office’s mission-based work…” one former OPA employee said. “But I don’t know that she has a staff,” says another former employee.

The official head of OPA is Edward Martin, named Pardon Attorney as a consolation prize after he was found to be too controversial to pass the Senate appointment process to be US Attorney for Washington, D.C. New York reported that Martin is uninterested in the Pardon Attorney position and apparently appears at the office about once a week.  “He’s just not there that much,” the staffer said.

The best way to obtain clemency in the current environment is to pay big in order to go around OPA. Lobbying for clemency is big business. Billionaire Changpeng Zhao, who violated money-laundering prevention statutes at his crypto exchange, Binance, was pardoned last fall, about a month after hiring the lobbying firm of Donald Trump Jr.’s friend Ches McDowell. The cost for a month’s lobbying? $450,000. (It helped that Binance was also a major backer of the Trump family’s cryptocurrency stablecoin). Nursing-home magnate Joseph Schwartz paid conservative lobbyists nearly $1 million last April to lobby for a pardon on tax-fraud charges; by November, Schwartz was free.

“Attorneys close to Trump are now seeking fatter fees,” New York reported. “Rudy Giuliani was reportedly shopping around a $2 million price last year. One former pardon-office lawyer… said they were hearing lobbyists go as high as $5 million to work their connections in the White House.”

Last Tuesday, in his State of the Union address, Trump asked that Congress “pass tough legislation to ensure that violent and dangerous repeat offenders are put behind bars and importantly, that they stay there.” Trump is not a friend of federal inmates who have neither connections nor a lot of money. Yet I hear weekly from prisoners believing that Trump is about to grant a large number of commutations to federal prisoners.

Not likely. All that is certain is that OPA has been broken and made irrelevant by the White House. “It’s heartbreaking,” one attorney who left OPA shortly after Oyer was fired told New York. “It’s not that they’re doing it differently that makes it heartbreaking. It’s that it’s corrupt.”

New York magazine, Trump’s Pardon Office is ‘Totally Decimated’ (Feb 27, 2026)

Politico, Trump showcases gruesome stories throughout the night (Feb 24, 2026)

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HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1^ST SAYS

“Engine Joe” Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC 924(c) offenses for using and carrying a gun during the crimes.

Joe’s jury was instructed that the predicate crime of violence for the two 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the 924(c)s were based.

However, years after Joe’s conviction, the Supreme Court decided in Johnson v US that the residual clause in the Armed Career Criminal Act’s (18 USC 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in US v Davis that Johnson’s logic extended to 924(c), ruling that the residual clause “crime of violence” under 924(c)(3)(B) was unconstitutionally vague as well.

Joe filed a 28 USC 2255 motion, arguing that the court must assume that the jury took the categorical approach. Thus, he said, the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have mistakenly convicted him of 924(c) offenses based on a conspiracy – and conspiracies don’t count as violent after Davis – Joe argued that the two 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Joe was convicted of the two robberies in which guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s 924(c) verdicts “remain valid.”

Last week, the 1^st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Joe’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Joe had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the 924(c) convictions was harmless.

Shea v US, Case Nos 22-1055, 2026 USAppLEXIS 5327 (1st Cir. Feb 23, 2026)

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EVERYBODY’S TALKING AT ME

There is little in American criminal law as sacred as a defendant’s right to talk freely and confidentially with his or her attorney. But even the sacred has exceptions.

Last week, the Supreme Court ruled 9-0 that when a trial court recesses a criminal trial during a defendant’s testimony, the court may order that the defendant and counsel not discuss that testimony during the break except where it is incidental to talking trial strategy or taking a plea deal.

On trial for murder, Aaron Villarreal testified in his own defense. After about an hour, the trial judge recessed for the day and told Aaron and his lawyer not to talk about his testimony overnight.

Aaron was convicted. On appeal, he argued that the order not to discuss his testimony violated his 6th Amendment right to effective assistance of counsel.

The Supreme Court upheld the trial court. “A defense attorney may rehearse her client’s testimony before her client takes the witness stand,” Justice Ketanji Brown Jackson wrote for the Court. “And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good. Such discussion of testimony qua testimony is entirely proper, and the consultation that enables it is constitutionally protected before the defendant’s testimony begins and after it concludes. But for the duration of the defendant’s time on the stand, consultation about the testimony itself—rather than incidental discussion of testimony in service of protected topics—sheds its constitutional protection.”

Trial strategy may be discussed. “No less than before or after his testimony, a defendant’s access to advice about trial strategy remains essential to the collaborative enterprise that is criminal defense,” Brown held. The flow of information goes both ways, she said, with counsel remaining free to obtain information from the client on which trial strategy may hinge.

The Court acknowledged that “[t]he line between discussion of testimony for its own sake and discussion of testimony incidental to other topics may not always be razor sharp.  We trust that defense counsel will not evade the spirit of qualified conferral orders by couching discussion of testimony qua testimony in strategic terms.”

Villarreal v Texas, Case No 24-557, 2026 US LEXIS 1103 (Feb 25, 2026)

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SMARTER SENTENCING ACT IS BACK

Sens Dick Durbin (D-IL), ranking member of the Senate Judiciary Committee, and Mike Lee (R-UT) reintroduced the Smarter Sentencing Act last week, which seeks to update sentencing for federal drug offenses.

The Smarter Sentencing Act, introduced in two prior Congresses, would lower mandatory minimum sentences for some nonviolent drug crimes set out in 21 USC 841(b)(1)(A) and (B)

Over half of all federal inmates are serving sentences for drug offenses, and many were convicted of an offense carrying a mandatory minimum penalty. By lowering mandatory sentences for certain nonviolent drug offenses, the bill would provide federal judges more flexibility to determine when the harshest penalties should apply on a case-by-case basis.

Durbin and Lee first introduced the Smarter Sentencing Act in 2013. The current bill is cosponsored by eight Democratic senators and supported by the National Association of Criminal Defense Lawyers, Due Process Institute, Federal Public and Community Defenders, Dream.org, and Association of Prosecuting Attorneys.

Federal Newswire, Durbin and Lee Introduce Bipartisan Bills Targeting Federal Drug Sentencing Reform (Feb 26, 2026)

S.____, Smarter Sentencing Act

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