.jpg) |
| Marc Levin |
 |
| Khalil Cumberbatch |
But pardons were always meant to be the last resort for defendants to obtain relief. With people on both ends of the political spectrum now more cynical about the pardon power, it's even more imperative that the system gets it right the first time. This requires enhancing protections for defendants before they are convicted.
Biden's preemptive pardons of his family,[2] and members and staff of the U.S. House of Representatives Select Committee on the Jan. 6, 2021, Attack, should prompt reforms to disincentivize the frivolous and vindictive prosecutions he feared.
Trump's May 2024 conviction in the hush money case, New York v. Trump, before he could challenge flawed jury instructions[3] should lead to changes as well, especially those allowing defendants to appeal, prior to trial, weighty legal issues, such as whether the instructions required jurors to agree on each element of a crime.
More broadly, the reason to better protect the rights of defendants is not simply to improve the system's accuracy so that the truly guilty are held accountable, while the innocent go free or, better yet, are never charged, but to earn the confidence of more Americans in the justice system.
Deterring dubious prosecutions is one way to do this, and there are three actions that could help accomplish this.
First, we can significantly raise the bar for a federal indictment. This problem was summed up by Sol Wachtler, the former chief judge of the New York Court of Appeals, who famously maintained that "a grand jury would indict a ham sandwich." For example, while a federal indictment requires only a bare majority of grand jurors,[4] Texas requires three-quarters of the panel to sign off.
In such a polarized environment, a higher threshold would provide greater protection against politicized prosecutions, or, much more commonly, help derail those that simply lack adequate legal or factual support.
More significantly, federal law does not require prosecutors to share exculpatory information with a grand jury. Nearly all prosecutors are both honorable and overworked, but there's always a temptation to take shortcuts and measure success simply by convictions.
While U.S. Department of Justice internal policy guides prosecutors to share information with a grand jury that "directly negates" the investigatory subject's guilt, this direction is not binding — and it does not cover information that simply tends to undermine the case.[5]
One reason this protection is so important to ensure a just process is that an investigatory subject's attorney may not be present in the federal grand jury room. Moreover, the subject's attorney can only obtain a transcript of a federal grand jury proceeding if the court allows it after determining the lawyer's need for it outweighs the goal of secrecy.
Without being present in the room, and without access to the transcript, a defense attorney cannot provide zealous representation to ensure there were no prejudicial comments and that the proposed requirement to disclose exculpatory evidence was enforced.
Accordingly, transcripts should be provided confidentially to defense counsel — with appropriate redactions, such as a victim's address — unless there is a specific reason to believe the defense attorney would release the transcript. Such misconduct is an unlikely scenario given the prospect of court sanctions and bar discipline.
Finally, we can further guard against wrongful and harmful prosecutions by broadening the federal law allowing a judicial award of fees and costs in a case found to be frivolous, vexatious or brought in bad faith.[6] This statute should be expanded to cover not just acquittal, but also a "no bill" by a grand jury.
It also should be clarified to specify that prosecutorial misconduct in and of itself is sufficient to justify recovery, contrary to current jurisprudence.
In addition to deterring prosecutions of little or no merit, we can also protect and enhance fairness for defendants by giving them more recourse against legal errors later in the process.
Trump's experience in the New York hush money case provides an example. There, the mechanism through which prosecutors were able to turn the misdemeanor of falsifying business records into a felony, and thereby extend the statute of limitations, was by predicating it upon another offense.
Prosecutors gave the jury many options for this predicate offense: federal campaign finance law violations; state campaign finance law violations; and federal, state and local tax law violations.
Yet the "choose your own adventure" jury instructions did not require the jury to reach agreement on the same underlying offense. While neither the U.S. Supreme Court nor any New York court has ruled on this question in precisely this context, the weight of authority[7] in both federal and state courts is that, in analogous scenarios, jurors must unanimously agree on the specific underlying offense to satisfy the constitutional requirement of unanimity on each and every element.
At a minimum, procedural rules in New York and other jurisdictions should be modified to permit the defendant to immediately go to a higher court on this fundamental question in an interlocutory appeal. This would ensure that the defendant is tried under the correct law, preventing both erroneous convictions and the waste of prosecutorial and defense resources associated with a reversal and retrial.
Avoiding further politicization of the pardon power is highly important, but there are few, if any, mechanisms for achieving that. There are, however, many ways to make the procedures that occur before conviction more evenhanded. We should disincentivize dubious prosecutions by strengthening grand juries and defendants' ability to recover fees, while also expediting a defendant's recourse to challenge jury instructions that misstate the law.
Taking these steps can help ensure a fairer justice system that earns the trust of all Americans.
Marc A. Levin is chief policy counsel and co-leader of the Centering Justice Initiative at the Council on Criminal Justice.
Khalil Cumberbatch is director of engagement and partnerships, and co-leader of the Centering Justice Initiative at the organization.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Biden's preemptive pardons of six family members on his final day in office were unique in that they exceeded the total number of presidential family members pardoned in American history and, unlike those issued to his son Hunter, Charles Kushner, and Roger Clinton, were broad preemptive grants of relief not limited to specific conduct that had resulted in convictions. President Trump's order pardoning all of the approximately 1,500 individuals convicted of offenses related to January 6th insurrection, including many who have serious prior offenses and have vowed to continue militia activity, and all of whom are unnamed in the order — except for 14 organizers whose sentenced he commuted — was unprecedented due to its breadth and to the President's own role in instigating the riot. While Biden granted clemency to more drug offenders in one day, this relief, like that issued by President Obama, was based on specific criteria such as whether the individual would have received a shorter sentence under current law that narrowed the disparity between crack and powder offenses. Moreover, Trump's order obliterated the informal rule that the President should not direct the Department of Justice to bring or dismiss a case, as it ordered the dismissal of all pending cases against January 6th defendants.
[2] https://edition.cnn.com/2025/01/20/politics/joe-biden-preemptive-pardons/index.html.
[3] https://www.justsecurity.org/96654/trump-unanimous-verdict/.
[4] https://crsreports.congress.gov/product/pdf/RL/95-1135/10.
[5] https://www.justice.gov/jm/jm-9-11000-grand-jury.
[6] https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022/index.php#/p/48.
[7] https://www.justsecurity.org/96654/trump-unanimous-verdict/.