President Biden might pardon others before leaving office. How does that work?

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WASHINGTON – Despite being the stingiest president so far in more than a century in doling out individual pardons, Joe Biden is making a late run at granting additional clemencies before his term ends on January 20.

So how does a defendant or a prisoner ask the American chief executive for help?

Having a relationship with the incumbent president or a close friend is one gambit. Hiring a well-connected lawyer to contact a top White House aide is another strategy. Sometimes politicians or advocacy groups lobby the president directly, as was the case before the lame-duck Biden's move Monday to commute the sentences of nearly every inmate on death row.

The only person who holds the power is Biden, who set off a firestorm this month when he pardoned his son Hunter Biden. And with just weeks left in the 82-year-old Democrat's term, legal experts who have been through the process in the past say it can become more haphazard as President-elect Donald Trump's inauguration approaches.

“There aren’t thousands of people who have the political throw-weight or the gravitas to get those,” said Ty Cobb, a former Justice Department official and later special counsel at the White House during Trump’s first term.

“If you are a heavy-hitter lawyer and you get a request from somebody, typically what you need in an applicant is someone connected and wealthy at this late stage of the game, because there’s not much time left."

Pardons can be done by category of crime or for individual cases

Presidents can grant pardons in several ways, including by proclamation for a category of offense or by signing a pardon warrant for an individual.

Biden issued proclamations in October 2022 and December 2023 to pardon people for marijuana possession, even if they hadn’t been charged or prosecuted for the offenses yet. In June 2024, Biden also granted pardons to military veterans convicted of offenses based on their sexual orientation from 1951 to 2021.

Neil Eggleston, who was White House counsel in President Barack Obama’s second term but is not part of Biden’s review, said clemency for categories of defendants is a policy decision typically driven by advocacy groups rather than people trying to rectify their own situations.

"This was essentially a policy decision," Eggleston said of Biden shortening sentences for people in home detention in the biggest single-day grant of clemencies in history. "I suspect that advocates were urging the Department of Justice and the White House to do this."

Pardons aren't always to get someone out of prison but to wipe clean a record from years earlier.

Ronald Reagan gave his final pardon to New York Yankees owner George Steinbrenner two days before he left office in 1989. Steinbrenner had been convicted of making illegal contributions to President Richard Nixon's 1972 campaign and fined $15,000 but not jailed.

Biden has granted fewest individual pardons since 1900

Biden is on pace to grant the fewest individual pardons since at least President William McKinley, who served from 1897 until his death by assassination in 1901, according to Justice Department statistics.

Biden’s 65 individual pardons so far falls below the 74 by President George H.W. Bush granted during his term from 1989 to 1993. President Jimmy Carter set a high-water mark for one-term presidents in the past 50 years with 534 individual pardons, plus an unspecified number of Vietnam draft dodgers from 1964 to 1973. President Franklin Delano Roosevelt, who died during his fourth term in 1945, pardoned 2,819.

But more are possible.

"In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations," the White House said Monday as Biden commuted the sentences for nearly all of the inmates on federal death row.

Earlier this month, Biden also commuted the sentences of 1,500 people who had been placed in home confinement during the COVID-19 pandemic and pardoned 39 others convicted of nonviolent crimes.

How do defendants or convicts ask for pardons?

Cobb, the special counsel in the Trump White House, said simply knowing the White House counsel isn't enough to score a pardon or a shorter sentence through a commutation. But knowing a Biden relative or someone who was in business with a relative or who is friends with a former Senate colleague might get an audience, he said.

Formal requests for a presidential reprieve are processed through the Justice Department’s office of pardon attorney. Government lawyers review applications and make recommendations to the president based on factors such as the nature of the crime and the person's rehabilitation.

Eggleston said high-profile defendants would retain lawyers and nonetheless sometimes contact him for pardons when he worked in the White House. But Obama insisted on having the Justice Department review each application and make a recommendation, he said.

“Every once in a while somebody would call me and say, ‘I saw President Obama at a fundraiser and I raised this clemency with him and he said I should call you,’” Eggleston said. “They’d come in with all sorts of different supporters, which is politicians pushing for a constituent or business associates maybe pushing on behalf of a particular person.”

After the initial contact, Eggleston would typically receive a packet with letters from acquaintances and other information to substantiate their arguments for the Justice Department review. A simple lawyer’s assurance would not have been enough, he said.

“I didn’t want to short-circuit the process," Eggleston said.

Lanny Davis, who was a senior counsel in Bill Clinton’s White House, said his friendship with first lady Hillary Clinton from their days at Yale Law School would have allowed him to walk into the Oval Office and ask for a pardon for somebody he knew.

“I was asked to by many, many people – friends and uncles, political friends and everybody else − in the last couple of weeks that I was still there," Davis said.

The calls keep pouring in. A personal friend’s son called Davis recently to ask if he could get a pardon from Biden. "It’s a bit late in the day, which I told him," Davis said.

Davis said the only legal and ethical way to get an individual pardon is after a Justice Department review.

“The precedent of going around the Justice Department is asking for corruption," Davis said.

What arguments do people make while seeking a pardon?

Pardon-seekers typically promote how they have rehabilitated themselves rather than denying their guilt, legal experts said.

“The better argument is: ‘Yes, I’ve messed up but I’ve turned my life around,'" Eggleston said, such as by sitting on the board of charitable organizations or working in soup kitchens.

Obama wanted to know about consequences of a conviction, such as a person’s inability to get a license to pursue their profession, Eggleston said. But one argument that didn't work was if a person couldn't own a gun because of a conviction.

“The biggest category is 'I turned my life around,'” Eggleston said.

Cobb said the applicant should be conciliatory about the offense and then promote their good acts since the crime. Rich people will talk about their philanthropy, others about how they stopped drinking or doing drugs.

"What you want to do is just make a more compelling personal argument than the next guy," Cobb said.

Biden considering preemptive pardons for Trump targets

Biden is considering offering pardons for unspecified crimes to protect people Trump has threatened to investigate.

Trump, who was indicted twice on federal charges in cases that were dropped after he won the election, has threatened to throw Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco and special counsel Jack Smith in jail. Trump couldn't summarily jail his targets, but his choices to lead the Justice Department and FBI have talked about investigating his political rivals, which carried the threat of indictment and prosecution.

Trump has proposed to indict members of the committee that investigated the Capitol attack on Jan. 6, 2021, such as Sen. Adam Schiff, D-Calif., and former Rep. Liz Cheney, R-Wyo., whom he said “could be in a lot of trouble.”

Schiff said he would recommend against a blanket pardon. Cheney said “no reputable lawyer, legislator or judge would take this seriously.”

But when former President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger for activities in the Iran-Contra affair, Bush said it wasn’t just about avoiding legal charges but also the “torment of lengthy and costly legal proceedings.”

Biden commutes most death sentences to life in prison

Advocates for death-row inmates were also pushing Biden for blanket pardons after he campaigned in 2020 on eliminating the death penalty.Biden's commutations on Monday reduced the sentences of 37 of 40 death row prisoners to life in prison without parole. The move was in line with a moratorium his administration imposed on executions but excluded people convicted of terrorism and hate-motivated mass murder.

Jamila Hodge, CEO of Equal Justice USA, said the commutations addressed the "racism that infects the death penalty and the criminal legal system."

"It is one flaw of many that have hollowed out the principles of justice in America and exposed the death penalty for its many failures," Hodge said.

But Biden's list of commutations didn't cover the death sentences for Dzhokhar Tsarnaev, who was convicted in the 2013 Boston Marathon bombing that killed three people and injured more than 260 people; Dylann Roof, who killed nine people in a church in Charleston, South Carolina, in 2015; and Robert Bowers, who killed 11 people at the Tree of Life Synagogue in Pittsburgh in 2018.

Controversial pardons sometimes come at last minute

Biden’s pardon of his son Hunter illustrated how controversial a single act of clemency can be. The president wiped out gun and tax convictions against his son, along with unspecified violations he might have committed since 2014.

Cobb blasted the decision for politicizing the pardon power in a way that "will be used in the future for cronyism and paternalism."

"The founders definitely didn't contemplate that their president for his own selfish purposes would be pardoning family members," Cobb said.

But Eggleston said he understood the president’s decision and would have recommended it as White House counsel.

“He loves his son, and here was a guy who committed all these crimes when he was a heavy drug user and he has turned his life around, and he falls within the classic concept of people who would be considered for this,” Eggleston said. “I know people are complaining about it, but I think they’re off base.”

A smattering of controversial pardons has become common near the end of a term.

Bill Clinton pardoned fugitive financier Marc Rich, whose ex-wife Denise had given $200,000 to the Democratic Party in 2000, on his last day in office in 2001. Rich had fled to Switzerland in 1983 after he was indicted on more than 50 counts of fraud and evading more than $48 million in taxes. The Republican-led House Government Reform Committee investigated the pardon after Clinton left office in January 2001.

“With the wisdom of hindsight, the Marc Rich pardon was not meritorious," said Davis, who added the caveat that he agreed with Clinton the prosecutor was unscrupulous. "What I said kindly to my client and old friend President Clinton was, ‘In what universe is a billionaire white man not going to get a fair trial?'"

Trump pardoned his former campaign chairman, Paul Manafort, and the father of his son-in-law, Charles Kushner, a month before he left office after his first term. Trump has chosen Kushner as his ambassador to France in the second term.

Trump might open the term with contentious pardons of Jan. 6 defendants, whom he has called political prisoners.

In March 2023, he posted an all-caps message on social media: "LET THE JANUARY 6 PRISONERS GO."

"I am inclined to pardon many of them," Trump told CNN in May 2023. "I can't say for every single one because a couple of them, probably, they got out of control."