Biden clemency blitz left DOJ scrambling as many commutations bypassed normal vetting, emails show

FIRST ON FOX: Justice Department (DOJ) officials scrambled after former President Joe Biden’s end-of-term clemency grants were announced, trying to determine what some decisions actually covered and correcting errors in others — part of a broader clemency process that drew criticism from former U.S. pardon attorneys, a federal judge and other officials, internal emails show.

The records were obtained through the Freedom of Information Act by Protect the Public’s Trust (PPT) and shared with Fox News Digital.

In one exchange, involving a career offender convicted in a series of crack-cocaine trafficking cases, prosecutors were left asking whether Biden had commuted a separate 235-month sentence for the man that was not explicitly listed. The question prompted a deputy pardon attorney to offer the “most sensible reading,” while acknowledging that “many” of Biden’s Jan. 17 commutations had bypassed the agency’s normal pardon-office vetting and did not undergo the typical level of review.

In another episode, the Justice Department’s Office of the Pardon Attorney (OPA) was caught off guard by Hunter Biden’s pardon and later had to correct a notice that incorrectly described him as receiving it “after completion of sentence” — even though he had not yet been sentenced, never would be, and the pardon was full and unconditional. Officials also spent days working through how to authenticate and transmit the pardon to the court.

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Separately, U.S. District Judge Daniel Hovland asked for an explanation after reviewing more than a dozen North Dakota commutations and saying that neither sentencing judges, prosecutors nor victims had been consulted — “not even” by telephone. He also questioned the validity of several pardons, noting they were out-of-step with his view of the second-chance rationale associated with clemency grants. 

“The process didn’t match the public sales pitch,” former Virginia Attorney General Jason Miyares told Fox News Digital. “There is a Grand Canyon gap between the public description and the internal reality.”

“This paints a troubling picture of a pardon process driven by politics and haste rather than the careful deliberation such extraordinary acts of executive clemency demand,” added PPT’s communications director Alexa Moutevelis. “The Justice Department pardon office’s own emails show the final Biden auto-pen blitz was so clumsy and rushed that the chaos extended even to the most high-profile and controversial of all: his own son, Hunter.”

The Biden administration had publicly sought to assure Americans that the president took clemency “very, very seriously,” with then-White House press secretary Karine Jean-Pierre saying cases were presented to the president by his team for a final decision. 

DOJ told Fox News Digital that clemency officials did not conduct an individualized review of the slate of roughly 1,500 people whose sentences Biden commuted Dec. 12. Instead, they were granted clemency as a group after being identified by the Bureau of Prisons (BOP) and DOJ as people serving sentences on home confinement during COVID under the CARES Act. BOP had previously assessed the recipients before placing them on home confinement, but clemency officials did not separately review most recipients’ individual offenses or case histories before the Dec. 12 grants.

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Meanwhile, concerns inside DOJ surfaced almost immediately after Biden’s Jan. 17 grants were announced. The Wall Street Journal reported roughly two weeks after they went out that then-U.S. Pardon Attorney Liz Oyer told U.S. attorneys in a Jan. 18 internal email that Biden’s clemency action “was not carried out in consultation with the Office of the Pardon Attorney and there was little coordination with the Department.”

Eleven days after Biden’s Jan. 17 mass commutations, on Jan. 28, First Assistant U.S. Attorney Maya Song of the Eastern District of Virginia contacted OPA after a court raised a question about a commutation Biden seemingly awarded to Christopher Damon Spencer. The clemency list identified him alongside the docket number for a 2003 case, but Spencer also had a separate 2011 case in which he had been sentenced to 235 months in prison. Song asked whether Biden’s commutation applied to that sentence as well.

Deputy Pardon Attorney Kira Gillespie responded hours later that applying the commutation to both docket numbers was the “most sensible reading” and apologized for the confusion.

“Many of the cases that were granted commutation on January 17 were not vetted through our office,” Gillespie wrote, “and so the data we had available was not reviewed as carefully as we would ordinarily hope it to be.”

The emails show a separate episode of confusion following Hunter Biden’s pardon. OPA formally told prosecutors that the Dec. 1 pardon “was not processed via application through our Office,” and Oyer later confirmed internally that the office had been caught off guard.

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OPA’s surprise was reported publicly at the time, but the newly obtained emails provide internal confirmation from Oyer herself. When a DOJ public-affairs official told her that Politico planned to report the office had been “taken by surprise” and asked whether that characterization was wrong, Oyer replied: “I’m curious about the sourcing on #1, but it’s accurate.”

OPA then had to correct its own notification. On Dec. 2, Senior Deputy Pardon Attorney Rosalind Sargent-Burns told prosecutors that an earlier notice had incorrectly described Hunter Biden as receiving a full and unconditional pardon “after completion of sentence,” saying the phrase “was included in error” and apologizing for the confusion.

Days later, prosecutors turned to OPA after the federal court handling Hunter Biden’s California case said his defense-submitted pardon lacked authentication and had not been received from the appropriate executive agency. Internal emails show OPA officials then tracking down the court clerk and preparing a verification.

By the morning of Dec. 6, Oyer wrote that the matter appeared finished: “I think this is now resolved.”

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A DOJ official attributed the post-grant errors, which they characterized as minor and easily corrected, to the Biden White House failing to provide the department complete and timely information about the commutations, saying DOJ personnel were forced to identify affected individuals and provide notice on extremely short timelines.

Oyer, who led the OPA under Biden, which describes itself as the DOJ office responsible for receiving, reviewing and investigating clemency applications and providing recommendations to the president, noted in an email to a DOJ public affairs official that presidents have relied on the office for more than 130 years for “neutral advice and expertise.” In a statement to Fox News Digital, a representative for Oyer reiterated her public comments about not being consulted over “certain clemency grants at the end of the Biden administration, including the pardon of Hunter Biden, which she believes was a misuse of the pardon power.”   

Only 258 of the roughly 2,490 Jan. 17 clemency recipients had been recommended by DOJ, according to the Wall Street Journal, which reported that the White House included some individuals the department had specifically rejected, while leaving out hundreds whom the DOJ had recommended.

The internal DOJ records reviewed by Fox News Digital do not establish the full process used outside OPA — including how individual recipients were selected, what case information was reviewed, who conducted any case-by-case vetting and how final changes to the lists were made.

DOJ indicated that presidents of both parties have exercised their constitutional clemency authority without consulting the department, and its regulations do not require presidents to use the traditional pardon-office process.

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Former Pardon Attorney Margaret Love said the Jan. 17 emails nevertheless reflected a significant departure from that traditional system.

“The OPA email indicates that the names of the final clemency recipients did not come through the regular pardon process where they would have been vetted by Justice Department professionals,” Love told Fox News Digital. “That would be unprecedented in my experience — at least for any president other than President Trump, who also does not use the regular process.”

“While the clemency process is always somewhat opaque as far as the public is concerned, this process seems to have been secret even from the responsible staff at the Justice Department,” Love added. “Where did the cases come from, and how were they selected? I don’t know that and evidently neither did the staff in the pardon office.”

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District court judge Hovland’s objections to the Dec. 12 commutations were aired publicly at the time, according to the internal records reviewed by Fox News Digital. He copied numerous North Dakota news organizations on his Dec. 18 email, but the FOIA records reveal how his complaint was received inside OPA. 

When a senior deputy forwarded the email to Oyer the following morning and asked whether further action should be taken, Oyer responded: “SIGH. Thanks for letting me know.” DOJ told Fox News Digital it could find no record of the department responding to Hovland’s request for an explanation.

Hovland highlighted two recipients who had defrauded more than 60 farmers and agricultural businesses of $11.4 million and a bank of $28.5 million, saying neither had presented evidence supporting a commutation and warning that the grants eroded confidence in the justice system and respect for the rule of law. Hovland said his concerns extended beyond the two fraud cases to other drug-trafficking commutations he reviewed, none of which he described as involving “low-level, non-violent drug offenders.”

“None of the federal prosecutors, victims, or myself as the sentencing judge were ever contacted about these commutations beforehand — not even a telephone call,” Hovland wrote, asking OPA to explain how the cases had been investigated, why the sentences were commuted and why nobody with direct knowledge of the cases had been consulted.

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The records reviewed by Fox show that advance DOJ notification varied across Biden’s late-term clemency actions. Ahead of Biden’s Dec. 23 federal death-row commutations, officials made advance calls to the affected U.S. attorneys. On the morning of Dec. 22, Deputy Attorney General’s Office official Bradley Weinsheimer told Oyer he was “awaiting clearance to start making capital case USA notifications.” Minutes later, he wrote: “Starting notifications now.”

Shortly thereafter, within hours, Weinsheimer reported that: “All USAs now have been notified. Pushback by a couple, but all were appreciative of the call.”