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October 12, 2021

Does Prez Trump's statement to clemency advocates to "get this guy home" constitute an enforceable commutation?

The question in the title of this post is the question explored in this recent lengthy Washington Post article discussing a notable new filing by lawyers representing James Rosemond.  The article is headlined "Trump granted hip-hop manager clemency but left him in prison, lawyers claim," and here are excerpts (with links to key filings):

The waning days of Donald Trump’s presidency saw a carnival of celebrities and those with personal connections to him jostling for clemency. Trump obliged many of them, granting pardons to rappers Kodak Black and Lil Wayne and longtime allies Stephen K. Bannon and Roger Stone.

And then there was James Rosemond, known as “Jimmy Henchman,” a once-major player in the hip-hop industry who represented artists such as Salt-N-Pepa, the Game, Akon and Brandy before he was condemned to nine life terms for drug trafficking and murder for hire.

For years, Rosemond’s attorneys and a cadre of celebrity advocates — including retired National Football League great Jim Brown and the actor Michael K. Williams, who died last month — had argued that Rosemond was unjustly convicted, campaigning for President Barack Obama and then Trump to grant him clemency.  Late last year, it appeared to Rosemond’s advocates that they had succeeded. 

On Dec. 18, Trump called Brown and his wife, Monique, according to legal affidavits signed by the Browns. “Let’s get this guy home for Christmas,” Trump told the staff in his office during that call, the Browns said.

By the end of the conversation, the Browns said, they had no doubt that Trump meant he was commuting Rosemond’s sentence. Rosemond’s representatives say that they were told his family should go pick him up the following week and that loved ones traveled to West Virginia to be there when he walked out of prison after a decade inside.  But he never emerged, they say.  The family returned home devastated, and Trump left office two months later.

The Browns’ affidavits are now central to a novel legal argument being advanced by Rosemond’s attorneys that speaks to the mad dash at the end of the Trump administration, when celebrity and influence injected even more uncertainty than usual into the unsettled, high-stakes law of presidential clemency.

In a petition filed Thursday afternoon in federal court in West Virginia, Rosemond’s attorneys claim that Trump’s conversation with Jim and Monique Brown constituted a public communication that he was commuting Rosemond’s sentence, which they said is all that is required to make the decision binding and irreversible.

“Rosemond is serving a sentence that no longer exists,” his attorneys write.  Though the 20-page petition cites obscure examples of informal presidential clemency decrees dating to President Abraham Lincoln’s handling of Civil War deserters, Rosemond’s attorneys acknowledge in the document that “this exact situation is unprecedented — it does not appear to have happened in the history of the United States.”

In a statement to The Washington Post, Rosemond attorney Michael Rayfield said that despite the lack of precedent, “it’s clear to me that Jimmy doesn’t belong in prison for another day.”...

Scholars of presidential clemency interviewed by The Post were split on whether Rosemond’s legal argument has merit.

Mark Osler, a professor of law at the University of St. Thomas in Minnesota who has argued for changes to the presidential clemency process, said that the argument “presents a fascinating question that hasn’t been addressed in modern times.”

“They’ve got a good point, which is that the Constitution does not set out a method to the granting of clemency,” Osler said.  While in other cases, presidents, including Trump, signed pardon warrants, “there’s no statute or constitutional provision that requires that.”

Margaret Love, who served as U.S. pardon attorney from 1990 through 1997, said that the petition, as described to her by a reporter, touches on “really interesting” questions about the legitimacy of a pardon or commutation only uttered by a president.  “I believe there’s no reason in principle that a president should have to write something down,” Love said.

But she said she believed Trump’s language, as she gleaned from the Browns’ affidavits, did not amount to a clear declaration that he was commuting Rosemond’s sentence.  “While the president indicated an intention to do the grant, it does not sound to me like he actually did the grant,” Love said.

October 12, 2021 at 09:09 AM | Permalink


I would say that these statements, even as ambiguous as they are, would have been enough if said to someone in the BOP chain. But not when simply uttered to non-governmental parties.

Posted by: Soronel Haetir | Oct 12, 2021 12:25:38 PM

This one doesn't look very promising (no pun!) at all.

I agree with Love that TP's language was quite equivocal. Moreover, I'm skeptical that a phone call—not even to the convict himself, but to others who happen to be "representing" the convict and who also aren't lawyers—can be considered to happen in "public" regardless of some staff being present with the president. AFAIK, presidential phone calls aren't ordinarily public records.

Another big problem is the total lack of other evidence showing that a commutation was made. The petition spends a lot of time emphasizing that the supposed commutation was never "disavowed" afterwards. But that begs the question of whether anything to disavow existed in the first place. And you have to look at the numerous clemency awards made after 12/18/20. In all those cases TP's staff somehow managed to carry out the formal process and create a record. *Even on the very last day of his term* they got word out publicly. For example, in the case of Jeanine Pirro's ex-husband, TP's spokesman did release a public statement. In contrast, nothing like that happened for Rosemond, despite a full month of lead time to get it done. (Finally, the Wikipedia page about TP's clemency actions contains no mention of Rosemond, so IMO that's pretty conclusive! :>)


I also get a little vibe of promissory estoppel from this narrative. It has some echoes of Cosby's supposed "agreement" with the Montgomery County DA. But promissory estoppel really doesn't work in this case. For example, where was the reasonable reliance? Yeah, his fam did go to WV expecting to welcome Rosemond home, but what prompted them to do that? The WP article says an unidentified "WH official" supposedly told the fam's lobbyist, who in turn relayed that to the fam. So even if it really did happen, it was (1) secondhand, and (2) apparently not directly from TP, but conveniently just from some anonymous person, and (3) seeming to lack any reliable documentation. And then what did the fam do once they got stood up at WV? Nothing it seems in the immediate aftermath. If they really thought it was true, they could have followed up on many different occasions to get something formal in writing. And it's not like they were lacking for resources or sophistication. They had all these people going to bat for them—including a retired NFL star!—and plenty of money ($40k!) to lavish on A-list lobbyists. (I find that whole part of the story quite sordid and nauseating.) You can debate Cosby's situation, but at least in that case they could point to the DA's press release. Here, they really have no leg to stand on. At most I think if Rosemond had counsel involved he could make out some kind of malpractice claim for not getting a solid record of the commutation.

All that said, seeing as Rosemond is serving life, there's clearly no downside for him to file a petition like this. He's literally got nothing better to do right now.

Posted by: kotodama | Oct 12, 2021 12:45:28 PM

My current thought would be to agree with kotodama.

The Constitution doesn't provide some specific procedure here, but using history and general legal principles, there has to be some sort of clarity of process. This doesn't sound like it.

Trump could have just said "this guy is completely pardoned" or something. I don't think it has to be in writing or something. But, "get him home by Christmas" is a tad bit vague.

The best approach is to have a formal process in place -- I suppose it can be by presidential order though Congress can also provide a boilerplate (necessary and proper power to carry out any part of the Constitution). I realize people liked the idea Trump didn't follow the rules ... just let him do his thing! ... there is some good procedural reasons to have them.

This is but a piece of Trump's crude pardon approach, which as I have noted in the past, just makes it harder to have a better approach.

Some are (with merit) upset at the slow nature of President Biden's use of his pardon power. But, Trump's mixture of troll, special favorites, and in general slipshod approach makes it easier to defend a real slow and steady, through the bureaucracy so to speak approach.

Again, I SUPPORT a much more broader and reformed process. But, Trump's behavior just makes it harder. It does show the need for reform.

Finally, the best approach in many of these cases is just find a way to deal with it to avoid a drawn out legal process. Unless there is some reason not to do so, President Biden should just clearly finish the deal. As a matter of discretion, there is some reason for doubt here. It is not like this is totally frivolous. And, it's the fault of the former resident of the executive office.

Best to have the current executive just clean up the mess.

Posted by: Joe | Oct 12, 2021 2:10:08 PM

The "reason of doubt" -- to move to specifics -- is the specific details that can make someone wary.

"he was condemned to nine life terms for drug trafficking and murder for hire"

The argument is that it was a wrongful prosecution. The article notes the person has some notable advocates.

OTOH, even if the term of years is too long, it is a lot different than having the person out "by Christmas" (even 2021).

So, given the stakes, this is a clear case of the importance of clarity, procedural and otherwise. And, if President Biden and/or whoever is assigned the role of making these calls, disagrees, it would probably not be a violation of due process.

Or, wrong, probably. But, I will leave that to others to decide.

Posted by: Joe | Oct 12, 2021 3:28:49 PM

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