They have names like Jason Brown, Kendrick Akins and Hilario Avila. Few will know them by their low-level crimes.
Two have made headlines: Chelsea Manning, the former army intelligence analyst turned convicted leaker of state secrets, and James E. Cartwright, the member of the White House’s national security team who pleaded guilty to lying to the FBI about leaks regarding Iran’s nuclear program.
Either way, none of the more than 230 convicted felons to have received pardons or commuted sentences from U.S. President Barack Obama this month will lose their newfound clemency.
There’s nothing the incoming administration can do to reverse Obama’s executive decisions.
“Unlike executive orders, proclamations and memoranda, pardons are not subject to congressional or judicial review,” says William Howell, an expert on presidential powers who lectures at the University of Chicago’s Harris School of Public Policy.
“Indeed, they’re not subject to any review whatsoever. They’re one of the few unilateral powers that are absolute.”
President-elect Donald Trump has already committed to repealing the Affordable Care Act and undoing Obama’s executive actions. But the pardons, many of them issued for people who received long sentences for non-violent crimes, such as cocaine possession, won’t be touched.
What else could come?
With the sun setting on Obama’s second term, the president last month issued 78 pardons and granted reduced sentences for 153 people. This week, he added Manning and Cartwright’s names to the list of people to get clemency.
The pardon came in good time for Cartwright, who was due to be sentenced to a possible two years this month. He will not serve any prison time.
Manning, a transgender woman known as Bradley Manning during the bulk of her army career, will have a dramatically shortened sentence. She was sentenced to 35 years in 2013 for leaking nearly 750,000 sensitive documents that disclosed American military and diplomatic communications. At the time, the longest previous conviction for leaking classified information was two years, according to the Brennan Center for Justice.
Obama, whose administration has cracked down on leaks of government secrets, told reporters Wednesday that Manning has already served “a tough prison sentence” over the last seven years. She will now be released on May 17, instead of in 2045.
“It has been my view that given she went on trial, that due process was carried out, that she took responsibility for her crime, that the sentence that she received was very disproportionate relative to what other leakers had received,” Obama said.
While prominent Republican lawmakers, like Senator Tom Cotton, slammed the commutation, calling Manning a “traitor,” their complaints won’t go far. Once granted, the U.S. Federal Bureau of Prisons is required to comply with the president’s orders.
For his part, Dan Franklin, author of Pitiful Giants: Presidents in Their Final Terms, expects more pardons to come from Obama.
“I think he’s on a roll. I think he thinks there are too many people in jail,” the Georgia State University political professor says.
Declaring sites as national monuments is one other last thing Obama can still do, following the examples of Bill Clinton, who designated large swaths of southern Utah as protected lands, and George W. Bush, who established marine and territorial national monuments days before Obama was sworn in.
‘It’s that absolute’
As far as any future president revoking his pardons and commutations, that’s not likely. There’s only one scenario in which an incoming president might succeed in seeing a pardoned person put back behind bars.
“The only way to keep Manning or any of these people in jail longer would be to re-arrest them for something else,” says John Hudak, a senior fellow with the Brookings Institution who studies presidential powers.
“So if there were crimes committed in jail, or if there were existing crimes for which they were not initially charged that the Department of Justice believes there’s now a case.”
Such acts would not be covered by double jeopardy, the legal principle that prevents a person from being tried multiple times for the same offence, so it would just be a normal criminal prosecution.
In a grand sense, Hudak says, there’s no check on the presidential pardon power — not even against the president issuing a self-pardon.
“It’s that absolute,” he says. “If Trump is sworn in and it turns out he committed some federal crime, he could pardon himself.”
But that would not remove the power of Congress to impeach the president, should that happen.
With less than 48 hours left in his presidency, there isn’t much left that lame-duck Obama can accomplish, beyond issuing pardons and commutations or declaring sites as national monuments.
Barring some crisis situation requiring his executive sign-off on military action, Hudak says, “the Obama presidency is over.”