In the aftermath of last-minute pardons President Donald J. Trump issued to allies and well-connected applicants, a Democratic senator is proposing legislation to require more transparency around the process of presidential pardons and more disclosure from people lobbying on behalf of those seeking clemency.
Senator Richard Blumenthal, Democrat of Connecticut and a former prosecutor, plans to introduce a measure seeking to bring greater public awareness to the often opaque circumstances surrounding presidential pardons. It would also require more notification to the Justice Department and consultation on the potential effect any pardon would have “on the success of any ongoing investigation or prosecution.”
His legislation follows reporting by The New York Times on the intervention by Mr. Trump in the case of Jonathan Braun of New York, whose drug smuggling sentence Mr. Trump cut short on his last day in office. The commutation caught the Justice Department by surprise and eliminated leverage federal prosecutors had over Mr. Braun as they sought to enlist him as an informant in an investigation into predatory lending, a field where Mr. Braun was active.
“Right now the process is so open to corruption that a lot can just happen totally under the radar without anyone knowing about it,” Mr. Blumenthal said.
“Here we require not only disclosure,” he said, “but an impact statement so it gives the investigative agencies, the career guys and the Department of Justice, a chance to say, wait a minute, we’ve got this guy under investigation, or he is providing us with information and we’ll lose it all and he won’t be a witness.”
William P. Barr, an attorney general under Mr. Trump who had left by the time of the Braun commutation, previously told The Times that when he took over the Justice Department, he discovered that “there were pardons being given without any vetting by the department.”
The legislation would require administration officials who learn of a potential pardon to immediately notify the Office of the Pardon Attorney in the Justice Department. That office would then begin producing an impact statement on the possible pardon to gather the views of prosecutors and any victims.
Under Mr. Trump, the White House often bypassed the pardon lawyer’s office, which historically has consulted with the White House and provided expertise on requests for pardons.
Mr. Blumenthal’s measure also seeks to eliminate what he termed a “loophole” that allows those being paid to lobby for pardons to escape public registration if the effort does not exceed 20 percent of their time spent on behalf of a client. His measure would require lobbying registration “regardless of the percent of the services provided by the individual to that client that consist of lobbying activities.”
In the past, it has been shown to be difficult to pinpoint who is approaching the White House on pardons and how much they are being paid in what can be a lucrative enterprise. Associates of Mr. Trump sought six-figure sums for interceding on behalf of those seeking pardons.
In the case of Mr. Braun, he told The Times that he had no idea how the commutation of his sentence came about. But he and his family had enlisted help from 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.
Mr. Blumenthal faces a steep climb 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 enable more public scrutiny into how pardons are handed out. Republicans are likely to see it as an attack aimed at a potential Trump administration even though some have proposed similar ideas in the past.
The bill is also likely to attract legal challenges since the Constitution grants the president broad pardon authority.
“It’s not the way I would have written the Constitution, but that’s what it says, so we have to respect it,” Mr. Blumenthal said. “He can do whatever he wants.”
But he and others who have studied the pardon process said that Congress does have the ability to put some controls in place as long as the legislation does not impinge on the president’s pardon authority. They say greater public reporting and new lobbying rules would not appear to directly effect the ability to pardon.
“My own judgment is that a carefully crafted legislative package that doesn’t limit the president’s power in any way but simply imposes transparency requirements upon it, paired with greater transparency for lobbying for pardons, would stand a fighting chance in the courts,” said Norm Eisen, a former White House ethics counsel now at the Brookings Institution.
He noted that some restrictions on presidential pardons had withstood legal scrutiny, including that they can only be granted in federal cases, not state, 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 drawn criticism for their pardons, notably Bill Clinton’s last-minute pardon of Marc Rich, an oil trader who had been indicted on tax evasion charges. That pardon became the subject of heated political debate and a federal investigation that ultimately ended with no charges.
Mr. Blumenthal’s legislation would also require the White House to publish a rationale for any pardon in the Federal Register and on the official presidential website on the day one is granted.
