Another Unfulfilled Promise

The United States Court of Appeals for the Fourth Circuit affirmed a district court determination that a certain former President had not commuted the life sentence of a federal prisoner.

A high profile supporter

After exhausting other avenues of relief, Rosemond began pursuing a presidential commutation in 2015 and he continued to seek that relief once President Trump took office in January 2017. Several high-profile individuals supported Rosemond’s petition for clemency, including former Cleveland Browns running back Jim Brown and his wife, Monique Brown.

There is no written pardon; the claim is based on a telephone call between the Browns and the former President on December 18, 2020.

They claim that they next heard President Trump speaking to individuals in the room as he asked, “How soon can we get this done? I want this expedited right away,” to which an unknown person responded, “Right away.” J.A. 24, 26. And the Browns represent that they heard Trump reply, “Good. I want this done. I want him home for Christmas,” telling the people in the room with him, “Let’s get this guy home for Christmas.” J.A. 24, 26

The court notes that written pardons were issued to 193 individuals between that conversation and January 20, 2021.

The court

although the historical and more recent practice may allow one reasonably to expect a writing to accompany or follow the exercise of the presidential clemency authority, the absence of a writing does not equate to proof that a commutation did not occur. Applied here, the district court erred in concluding that a writing is a necessary requirement to the exercise of the Executive’s constitutional clemency power. Put another way, Rosemond’s inability to come forward with a commutation warrant or equivalent writing from President Trump does not dictate the outcome of his § 2241 petition.

The problem for Rosemond, then, is not just the lack of a clemency warrant per se; it is his failure to allege the existence of evidence that President Trump in fact commuted his sentence. His argument rests entirely on the assertions set forth in the Browns’ declarations, but those declarations do not prove what he claims they do.

At the outset, the portions of the Browns’ declarations asserting that President Trump allegedly commuted Rosemond’s sentence are only the Browns’ characterizations of and “belief[s]” about the substance of the December 18 telephone call. J.A. 23–24, 26– 27. But the Browns do not possess the clemency power, nor are they authorized to speak on President Trump’s behalf. Therefore, it is President Trump’s words—not the Browns’ takeaways from them—that would be the sole basis for determining that Rosemond’s sentence had been commuted.

Even assuming the factual accuracy and eventual admissibility of the information recited in the Browns’ declarations regarding President Trump’s purported statements, none of those statements during the December 18 telephone call reflect a declaratory statement that President Trump had previously or was in that moment commuting Rosemond’s sentence. Instead, his statements are forward-looking, anticipating what he wanted to have happen at some point in the future. Specifically, he is alleged to have said, “I want to do this”; “I’m gonna do it”; “How soon can we get this done? I want this expedited right away”; “I want this done.” J.A. 23–24, 26 (emphases added). The words “want” and “going to” express a desire about the future rather than declaring a fait accompli.

Thus

although President Trump may have intended to exercise his clemency power to commute Rosemond’s sentence at some future point in time, the words he is alleged to have used during the telephone call with the Browns did not do so. Nor is there any other evidence alleged to show that President Trump did so at some point after December 18 and while he still held the constitutional powers of the President. In fact, Rosemond’s petition was proceeding along the process typically used to channel such requests, and that channel—when successful—would have typically ended with the President signing a commutation warrant. Instead, Rosemond’s petition is still designated as pending on the Pardon Office website tracking all petitions submitted to it.

(Mike Frisch)