Actomey General Wiliam Bare US. Deparement of Justice 950 Penasyivania Avenue, NW Washington, DC 20530-0001 Dear Attorney General Batt For the past year, Ihave publily supported the effort to secure a presidential pardon for former Array First Lieutenant Michael Behenna, an Oklahoma native. Behenna was released fiom prison in 2014 ater serving five years in pison for shooting a suspected terror in Irq while atempting to trac, down those responsible for an IED that killed two of his men. In a letter to President Trump sent last, year, Texplined why Behenna’s case deserved, a minimum, careful consideration for a pardon, That letters tached, along with follow-up lecer Iam sending to President Tramp toda | am writing you because I am concemed that the Department of Justice (DO) procedures for handing pardon requests unduly inhibi che Presidents constitutional pardon power. As you know, Anticle II, Section 2 of the Constitution gives the President nearly absolute authority to “grant Reptieves and Pardons for Offences agnnst che United States.” Despite this extremely broad bestowal ‘of power, DO} regulations severely restit those who can offically apply for pardons. Pethaps most significantly, the tegulaions state that “alo petition for pardon should be fled until the expiration of «waiting period of atleast five years afer the date of release ofthe petitioner from confinement” and that “no petition should be submited by a person who ison probation, parole, or supervised release: 28CFR § 1.2. This prevents a large segment of eligible persons from offical applying for a pazdon All of the nearly 200,000 inmates curently incarcerated are excluded, for example, as are numerous ‘released individuals. And persons serving ife sentences, though unlikely candidates for pardon, appear to be completely bared from applying, ever. The more fortunate still must wait years to apply, even if they are out of prison and behaving in an exemplary fashion, Me. Behenna, for example, was informed by the DOJ thathe cannot apply until 2024—even though he was released in 2014 because he ie still on parole, ‘These limitations have no basis in the txt or history of the Constitution. The Frames didnot restrict the pardon power this drastically; indeed, chey barely restsicted it at all The President has wide discretion on how to exercise his pardon power, of course. But enshrining these significant limitations SISNE dio Ser» Onan Cry OK 73105» 40) 521.301 +a 09) $4046 Go ceo pourinto the Code of Federal Regulations goes beyond that, in that offically closes the avenue by which the vast majority of those who would otherwise be pardon-cligble can even apply, and it facially binds all future administrations. Presidential pracice has not aequiszed to these restitions, either. Rather, presidents have repeatedly pardoned those outside the current egulations eligibility requirements ‘To be sure, the DOJ website emphasizes sha the regulations “are advisory onl.” But in sea. itis virtually beyond dispute that: (1) the regulations do bind the DOJ, interaly; and (2) the DO) is the ‘only place where official applications for pardon ean be submited" Moreover, the DO] website states that “(correspondence sent directly to the White House ... concerning the President's executive clemency power is forwarded to [the DO] for an offical response.” So even if applicants want to petition the President dzectly to exercise his authosty, ita nor clear how they are supposed to do so- given that their mail will (7pparent) be immediately shuffled back to the DOJ. Thus, agin, these regulations and DO} practice effectively bar hundseds of thousands of eligible persons from seeking 1 pardon. That the President may of his own personal effort—ithout the assistance of his administration —identfy candidates does not change the rather obvious fact that these segulaions ‘unduly interfere with the Pesident’s pardon power. The reguhtions act asa peactical impediment t- his constituional prerogative by unzeasonably and asbiteaiy refusing to even consider legitimate spplicants lke Mr. Behenna, shutting them out before they ever teach the White House gates” Pur differendy, dhe current regulations encourage ditorder, rather than otder, by sequiting most spring appicants—at leas, those who don't just give up—t ignore the DO) and attempt to find a creative way to getto the President dzectly. This cn lead to the undeniable impression that only those with elite politcal contacts and influence are able to obtain a pardon. Nor is this barier to access based on the merits of the applicant, bu rather based on arbizary time restrictions that in lage part "Federal courts have indicated thatthe DO) sgulations do indeed corer (and rete) ll potential applicants foc pardon Se Uniad Stats x Vee No. 408-CR-224(1), 2010 WL 1163663, at *2 (ED, Te, Jan 6, 2010) ({Alecording to federal zegslatons governing petitions fr executive clemency, Vogel doesnot appeat lige to sek s presidental prdon [pre tril" Grand Jay Subpana, 179 F Supp. 24.270, 269, (SDNY. 2001) (1F [Mare] Rich’ intespetaon were comet, every pardon applicant could cccumvent the Depaztmeat of Jasice by submitting the pardon petion ‘dzecy’ tothe White Howe. T]he language of 511 suggests it apples w al pardon pesons Tt contains no imtaons. . It makes vese [fo argue that indivduns who seek a pardon before the ae convicted ae fre to fllow whatever praceduces they wish’). # Its also of no aval hat dhe DO) appazeniy grants “wives” to thetesestctions, given thatthe waivers are “infrequently granted” (0 quote the DOY's response to Mr. Behenns) the waivers are not expresly contemplated bythe regulations nd the waver ze not explained in any deta, eve in the FAQ section of| the DO} website. Arbitasnes i ats sign of «healthy sem 2 5 eg, In» Grand J Subpras, 179 F.Supp, 2d a 273 The pardon of Mate Rich and Pincut Green] ‘were highly controversial and geneeated much puble outer .. the pardon petition was submited dicey to the White Hous, with no tice to the prosecitor whe had brought the charges o tothe Pardon Attorney se the Deparment of Justice”).frustrate che purpose of the pardon power to extend mercy and correct the cate but unfortunately Injustices in our system. I would strongly encourage you to withdiaw or amend the current regulations to Detter reflect the Presidents broad pardon power under the Constitution. Some regulations, ‘obviously, ate going to be necessary, But regulations that effectively eliminate the ability of many of those eligible to even apply for a pardon through official channels ate contaty o the Constitution's Aesign and wrongly restrict the Presidents ability to be mercif Sincerely, Racist Mike Hunter [Attorney General