By way of background, regular readers know that this author has talking about the legality of many executive actions, especially pardons, issued during the Autopen Administration Biden Administration, with a particular focus on two issues:

1. Did Joe Biden approve of every alleged executive action using the autopen?

2. Was Joe Biden competent to approve of any such actions?

Focusing purely on the issue of pardons, we first began to raise these issues after the Hunter Biden pardon, wondering if the elder Biden was competent to issue the pardon at the time. Then as time went on, Trump argued that people Biden Administration was using the autopen to sign pardons essentially behind President Biden’s back. We wrote a VIP piece where we made these points about the law:

1. Only the President can issue a pardon. This power cannot be delegated to someone else.

2. People other than the President can write the pardon and sign it using the autopen or any other means, but only with the consent of the President.

3. If a purported pardon was signed without the consent of the President, then no pardon was issued.

That last point is very important. Trump cannot rescind any pardon actually, properly issued by any prior president. But if the pardon was not properly issued—such as if it was issued without a prior president’s knowledge and consent—then no pardon was actually issued.

Since then, we have also seen the New York Times try to do damage control on the topic of pardons, only for the meat of their reporting to cast even more doubt on the validity of these pardons, while Neera Tanden bizarrely claimed that every time the autopen was used to the best of her knowledge, President Biden authorized it in writing with his signature. Seriously, if that was the case, why was he using the autopen in the first place? Her story makes zero sense.

And now we have the latest bombshell to drop, through documents provided by Ed Martin. As you know, in addition to full pardons, the Biden Administration purported to commute the sentences of many people in the waning days of his presidency.

(Side note: A clemency or a commutation, in Constitutional terms, part of the pardon power. Thus whether we are talking about a full pardon, a clemency or a commutation, the issues are the same. For this reason, we will occasionally refer to a clemency or commutation as a pardon.)

In this piece, we are focusing on a mass clemency purportedly issued on January 17, 2025, because apparently there might be a serious problem with the clemency. An account called ‘Oversight Project’ provides the details in a thread, but we are going to take the thread out of order, because we think it is easier to see the problem this way:

If you want to read that pardon beyond looking at a picture, you can do so here:

This document has multiple clemencies in it, but just as an example of the problem we saw repeated throughout the document, we will highlight just one of many:

I HEREBY COMMUTE to a term of 10 months’ imprisonment the sentence of imprisonment, for the offenses described to the Department of Justice, imposed upon HERBERT SMALL, Reg. No. 99102-038. If applicable, I also remit up to $10,000 of the unpaid balance of the fine or restitution amount imposed by the court that remains at the end of the grantee’s sentence. If the grantee has a term of supervised release or other components of the sentence, I leave intact and in effect the term of supervised release imposed by the court with all its conditions and all other components of the sentence.

So what's the problem? Well, the thing is, a pardon has to be clear about at least two things or else the courts might have trouble enforcing it.

First, who is getting the pardon? One way or the other, the pardon has to state who gets the pardon in clear terms. It can describe broad categories of people. For instance, we noted here, when Jimmy Carter pardoned many draft dodgers from the Vietnam war, he didn’t name every possible draft dodger. Rather he described them categorically, using language like this:

I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.

So, Presidents can and have issued pardons for a group of people that are described with sufficient clarity. But the bottom line is that a court has to be able to figure out who the pardon is going do. But Mr. Small's commutation, if there turns out to be another Herbert Smalls, we expect that the registration number of clear up any confusion.

But the second thing the pardon must also do is specify what that person was pardoned for. It doesn’t have to list all of the person’s charges for which they were convicted. But it does have to explain what they are in sufficiently clear language that if there is a dispute later, any judge who looks at it will know whether or not the pardon applies.

And that is where Mr. Smalls and the hundreds of other people covered by this commutation might have a problem. Let’s quote the commutation again, only this time we will highlight the same phrase ‘Oversight Project’ highlighted:

I HEREBY COMMUTE to a term of 10 months’ imprisonment the sentence of imprisonment, for the offenses described to the Department of Justice, imposed upon HERBERT SMALL, Reg. No. 99102-038. If applicable, I also remit up to $10,000 of the unpaid balance of the fine or restitution amount imposed by the court that remains at the end of the grantee’s sentence. If the grantee has a term of supervised release or other components of the sentence, I leave intact and in effect the term of supervised release imposed by the court with all its conditions and all other components of the sentence.

Now, this author thinks that a pardon can be properly issued that references another document. For instance we believe Trump could properly issue a pardon that says ‘I, President Trump, hereby issue a pardon to the starting lineup of the Dallas Cowboys in the 2006-2007 season, as listed in the Dallas Morning News article entitled ‘Here Are Your Cowboys Starters’ published on August 5, 2006.’ That would be a proper, if unorthodox, pardon in this author’s mind, because if a court is not sure who is covered by it, they have a way to find out. It would satisfy the requirement of clarity.

The same can be said when talking about how to describe the crime. We think a valid pardon could say something like this: ‘I, Donald Trump, hereby pardon Bill Clinton for any and all crimes he committed by engaging in the conduct described in the Starr Report.’ Of course, Trump is not frakking likely to issue such a pardon, but let’s play pretend. Even without using its formal title or the date it was issued, we all know which report he is referring to. And, more importantly, a court could figure it out if there was a dispute.

But what are ‘the offenses described to the Department of Justice?’ Described by whom? When? After all, this person’s offenses might have been ‘described’ to the Department of Justice more than once and by more than one person. If we include court filings as among those descriptions, there might be dozens of documents that might arguably have 'described' his offenses to the DOJ. And that's a problem because if there is a dispute, the courts won't know how to resolve it.

And this author and Oversight Project are not the only ones noticing that this is a problem:

That’s right, a lawyer for the Department of Justice under Biden had a significant and well-reasoned objection to it before the final commutation was issued, and they apparently ignored him. And to jump ahead, the final post in this thread let’s you read this email directly:

So, let’s quote the meat of that email from Mr. Weinsheimer for full effect (with boldface added). That quote will include many things that don't go to the legality of the document because almost all of it is gold:

I think the language ‘offenses described to the Department of Justice’ in the warrant is highly problematic…

To break in, here the term ‘warrant’ is referring to the proposed commutation language.

…and in order to resolve its meaning appropriately, and consistent with the President’s intent, we will need a statement or direction from the President as to how to interpret the language. I can think of four possibilities, only the last of which is satisfying:

1. The commutation applies to all federal offenses for which the inmate is under sentence. It is our practice not to look beyond the four corners of the warrant, … 

To break in here again, when a lawyer talks about the ‘four corners’ of a document, it means that you are only supposed to look at the document for guidance on how words are supposed to be interpreted. That excludes almost everything else, unless it is specifically and clearly referenced in the document. So, if Biden made remarks that day telling us which offenses Mr. Smalls was being pardoned for, the courts ordinarily wouldn’t look at that because it is not in the four corners of the commutation.

…and there is nothing in the warrant to give meaning to that language. I understand BOP is likely to use this interpretation absent some other direction, and is doing do now as they work to process the commutations. This is unsatisfying because it renders the language superfluous, which couldn’t be the intent. It also likely will result in commutations in circumstances, including for crimes of violence, that was not intended.

2. The offenses described to the Department refers to the U.S. Sentencing Commission spreadsheets. I have not seen the spreadsheets so I do not know if this is a reasonable interpretation, nor do I know if it is a limiting factor (did the spreadsheets only include drug offenses, for example?). A significant problem with this interpretation is that it is a guess as to what is meant by the warrant language, and goes beyond the four corners of the warrant, something we do not normally do.

3. Because no offenses have been described to the Department from the President, the commutations do not take effect. In essence, describing offenses to the Department is a condition precedent to the commutations being effective, and without a description, they do not take effect. I have no idea what interpretation the incoming Administration will give to the warrant, but they may find this interpretation attractive, …

To break in a third time, basically he is saying that the Trump administration might push this interpretation—that this commutation is a nullity. And this highlights an important point: Mr. Weinsheimer is trying to give the Autopen Administration advice in order to improve the proposed clemency. He’s not saying this as an argument against it. He is trying to tell them that if they don’t fix this, then someone might come along later and say all or part of it is a nullity.

And of course he was ignored.

…as it gives effect to the language but does not go beyond the four corners of the warrant.

4. There is yet to come clear direction from the President giving meaning to the language ‘for the offenses described to the Department of Justice.’ Ideally, this would be a list as to each inmate listing the offenses that are covered by the commutation. By far, this is the clearest and least problematic alternative.

Given the above, I think it best that we receive a statement or direction from the President as to the meaning of the warrant language. That will allow us to give full effect to the commutation warrant in the manner intended by the President. In the absence of such a statement or direction, I am concerned option 3 above will be the interpretation that is given to the warrant. While that is a logical construction legally, it can’t possibly be what the President intended. So I would like to avoid that outcome.

One other important note – in communication about the commutations, the White House has described those who received commutations as people convicted of non-violent drug offenses. I think you should stop saying that because it is untrue or at least misleading. As you know, even with the exceedingly limited review we were permitted to do of the individuals we believed you might be considering for commutation action, we initially identified 19 that were highly problematic. That was based only upon running your initial priority list against the list of those who had submitted clemency petitions (a small percentage of the overall total). Even in that number, we identified violent offenders, including those who committed acts of violence during the offense of conviction, or who otherwise have a history of violence such that it is misleading to suggest that they are nonviolent drug offenders. 16 of those 19 received grants of clemency from the President. Pardon separately highlighted for you dozens more highly problematic candidates; despite the flags raised, most of these individuals also received grants of clemency. There are likely many more problematic cases in the ones we have not yet been able to review. Unfortunately and despite repeated requests and warnings, we were not afforded a reasonable opportunity to vet and provide input on those you were considering. And as you know, we only were provided the actual warrants and information on those for whom the President was granting clemency minutes before you posted the list online.

We also note that there was no consideration given to victim input in these cases involving violent crimes. In the cases of Terrence Richardson and Ferrone Claiborne, who were included in the clemency grants, the Department has received voluminous objections to clemency from the family of the victim, public officials, and local and national law enforcement organizations. Richardson and Claiborne were sentenced to life imprisonment for drug trafficking offenses during which a police officer was killed.

Among those who received commutations that we previously highlighted as problematic are Russell McIntosh, who has a history of violent crimes, including having shot to death a woman who had threatened to expose his drug business to the authorities and her two-year-old child. McIntosh pleaded guilty to state charges related to murder. It also includes Calvin Odom and Terance Young, who were denied clemency in 2016 because trial testimony revealed that on one occasion during the course of the conspiracy, a defendant responded to a female participant’s desire to leave the conspiracy by putting a gun in her mouth and ordering her to keep working for him. Evidence also revealed that in December 1994, while conducting drug business in Shreveport, a defendant accidentally shot a child who was present when he struggled with another drug trafficker during an attempted robbery. Also receiving commutation, and previously highlighted as problematic, is Robert Gillins who from 1989 to 1994 led a cocaine and crack distribution organization that operated in multiple cities. The organization used violence to accomplish its aims. For example, in August 1991, petitioner and others assaulted and beat a coconspirator and held him at gunpoint for the loss of $180,000 of the drug organization’s money. In April 1992, Gillins shot an informant who provided information on a member of the drug organization.

And there is Steven Fowler who received a commutation despite that his petition was denied in 2023 as a result of violent conduct. He ordered his employee to commit several violent attacks, and ultimately received a sentence within the guideline range likely applicable today. Fowler employed an enforcer who admitted to shooting at least five people who owed Fowler money and firing guns at many more. In one incident, the enforcer burned the face and forearms of a suspected informant with a butane torch while petitioner and others looked on. Jason Best was denied clemency in 2023, but now received a commutation, despite that he recently received a reduction from the district court to a term within his current guideline range, has a criminal history that includes his recklessly causing the death of a minor child, and showed poor prison adjustment. Best and his codefendant were involved in a shooting in which they caused the death of a young child asleep in his home. Plaze Anderson, for whom we had recommended denial of clemency, received a commutation. Anderson was a high-ranking member of the Gangster Disciples gang and was personally involved in two murders, and an attempted murder and kidnapping, and threatened his girlfriend with a weapon. He also obstructed justice by contacting codefendants to influence their decision-making. He has a criminal history involving statutory rape of a 17-year-old and participating in a shooting that struck an occupied vehicle. Not to mention numerous inmates who have engaged in brutal acts of violence while incarcerated.

We also have started to hear from the U.S. Attorney community about concerns relating to some of the clemency grants. For example, the Acting U.S. Attorney in Connecticut informed us that Adrian Peeler, who had no pending clemency application, was sentenced many years ago to 35 years of imprisonment for a federal drug offense, but that term was imposed to run consecutively to a 25-year state sentence for conspiracy to commit murder (which resulted in the murder of an 8-year-old witness and his mother). The family of those victims has been very involved in opposing Mr. Peeler’s motion for compassionate release and other relief over the years and will be extremely upset to learn of this development. Had we been provided a reasonable opportunity to vet the list and to engage in a process to flag problematic cases, we could have brought this to your attention prior to the President granting clemency.

I have no idea if the President was aware of these backgrounds when making clemency decisions, the Department was largely excluded from the process, which we otherwise opposed. The President of course has the constitutional power to use his clemency power as he chooses. But I do not think it is close to accurate to describe all the clemency recipients as those convicted of non-violent drug offenses. At minimum, such a statement is highly misleading, based on the history and backgrounds of the few we know about and have highlighted previously and above. For those reasons, I don’t think characterizing clemency grants as relating to non-violent drug offenses should be repeated.

And if you keep going through the document, you see an email from Elysa Q. Wan saying: 

The attached warrant states, ‘I hereby commute to a term of [X] months’ imprisonment the sentence of imprisonment, for the offenses described to the Department of Justice, imposed upon XX.’ We do not know how to interpret ‘offenses described to the Department of Justice.’ Could you please clarify?

We never heard of Ms. Wan ourselves before we started writing this, but a little Googling lists a LinkedIn account that says she is an attorney. So that would be two attorneys highlighting the fact that no one knew what that term means, and both of them being apparently ignored.

Now, we would be remiss if we didn’t note that if you went to the page linking to the commutation…

(We had to scroll backwards to reach January 17, 2025)

…you will see an asterisk for the clemencies we have been discussing where it says 

*Explanatory note: Warrant 2 states that commutation is ‘for offenses described to the Department of Justice.’

That explanatory note includes a link to a spreadsheet that is allegedly what is being 'described to the Department of Justice.' But if we were a judge looking at this, we would be forced to ask ‘how do we know that this is what President Biden meant when he wrote this phrase?’ And, so far, we don’t see any answer.

Now, one way a judge might try to resolve this is by calling Joe Biden to the stand and ask him directly what he meant. That’s what we would do if we were the judge in a dispute over the meaning of this pardon. And that is where the issue of competency comes in. 

While we have long banged the drum on whether or not Biden was competent to issue these pardons, so far this discussion has nothing directly to do with his competency. But what if Biden is no longer competent to testify before this gets to court? After all, by that time Biden might have reached the ultimate level of incompetency: He might have passed away. And while that might allow him to continue to vote, he won’t be able to testify in court. Or he might be alive but still incompetent to testify, or he might not even remember any more (and a wise prosecutor will guard against the possibility of Biden lying and pretending to remember to save face).

And, if for whatever reason, Biden can’t testify or his testimony won’t resolve it, we will tell you what we would be inclined to do, if this author was the judge hearing the case—assuming everything else about this commutation is on the up and up. Not to pick on Mr. Small (we never heard of the guy until we started writing this and we bear him no ill will), but he is the first on the list, so let’s look at what it says about him again:

I HEREBY COMMUTE to a term of 10 months’ imprisonment the sentence of imprisonment, for the offenses described to the Department of Justice, imposed upon HERBERT SMALL, Reg. No. 99102-038. 

Looking at that language, we would tend to say something like this:

The President intended to commute Mr. Small’s sentence for something. Indeed, the use of the plural term ‘offenses’ suggests the President intended to commute at least two offenses. But I can’t figure out how many more offenses than two were commuted. So, I will treat this as a commutation for the two offenses where he had the least amount of time left in his sentence, if any, on the date this commutation was issued.’

We don't know about what crimes Mr. Smalls has been convicted of or sentenced to prison time for, so we are discussing his record hypothetically. Thus if Small had three sentences, one where he had six months remaining, a second where he had nine months remaining, and a third where he had six years remaining, this author would treat it as only a pardon for those lesser charges and leave him in for the remaining six years. It’s harsh but we see pardons as a deviation from the strict rule of law, so we think the best policy is to read them narrowly.

But that’s just how this author would approach it. An actual judge might do something else.

In any case, it is also fair to say that this is a completely unnecessary mess. Trump became the once and future president won his second term in November. If we recall correctly, it didn’t take long for it to be clear he won. So, they had about two months to write any and all pardons, clemencies and commutations. There was no excuse for them to be running around three days before the end of Biden’s term, rushing these pardons through and to do what can only be described as a sloppy job of it.

As for Oversight Project, here’s the parts of the thread we didn’t share earlier:

That second post is including excerpts from that prior New York Times article which caused more harm than good for Biden legacy. Once again, you can read our coverage of it, here.

We will note that we never heard of the Oversight Project before today and they do not appear to be affiliated with any official government organization. They seem to be a private organization that does 'oversight' as private citizens, with donations from the public (which are not tax deductible, according to their website). We encourage every person to thoroughly investigate any organization for yourself before you consider donating to them and this is no exception. We don't say this to throw any shade at them, only to recommend that you exercise the level of caution we always do.

And for the record, other news outlets have reported on this issue, but we felt this thread is the most informative and we thank them for bringing this issue to the public’s attention.

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Editor’s Note: Just about every day we hear another revelation from the Autopen Administration making us wonder who was really in charge from during the Biden Adminstration.

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