JAKE BERNSTEIN
Donald Trump was, by all accounts, obsessed with the presidential
pardon. It matched his pre-election conception of the presidency, which he saw
through the prism of his business experience. At his private company, Trump
imposed his will on subcontractors, bankers, even local governments. At his
hotels, the control he exerted extended to the precise length of male
employees’facial hair (no more than a quarter-inch) and female
employees’fingernails (a maximum of three eighths of an inch). Once in office,
Trump found that Congress, the courts, and administrative rules constrained his
capacity to act. But the ability to grant pardons is the one area of executive
authority, other than launching nuclear weapons, where a US president's power
is nearly absolute.
As it is spelled out in Article II of the US Constitution, the president
has the “Power to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment.”The president can use his clemency
power to partially or completely reduce prison sentences by a commutation or
erase them with a pardon. A pardon can halt a prosecution underway or excuse
crimes either indicted or as yet uncharged, as with President Gerald Ford's
pardon of former president Richard Nixon, granted before a single indictment
dropped. No requirement exists that pardons be made public or even written
down. There are, however, a few caveats, hallowed by custom and jurisprudence,
built into those seventeen words. Presidential pardons cover only federal
charges. And the power is retroactive; a president cannot pardon future
offenses.
While establishing this vast
power, some delegates to the Constitutional Convention expressed unease about
the potential for a treasonous president to abuse it: “The President may himself
be guilty. The Traytors may be his own instruments.”The delegates therefore
explicitly banned a president from pardoning his way out of a congressional
impeachment. In the event—unlikely, the delegates appear to have assumed—that
the president's good character proved suspect, Congress would step in.
The Framers wanted pardons to alleviate injustice. Trump
demonstrated—and he wasn't the first president to do so—that, too often,
executive clemency is a miserly remedy for systemic injustice. We still do not
have a complete picture of how and why Trump exercised his pardon prerogative.
What has emerged publicly, however, shows how dangerous this nearly absolute
authority can be in the hands of someone governed by self-interest,
contemptuous of the rule of law, and emboldened by a divided and dysfunctional
Congress.
During the 2016 election, Trump seized on the pardon power as a campaign
rallying cry, getting the press to parrot his conspiracy theory that Hillary
Clinton would be pardoned by President Barack Obama for alleged crimes. After
the election, former Speaker Newt Gingrich was one of the first to articulate
publicly how Trump might himself abuse the pardon power when he encouraged the
president-elect to bypass federal ethics rules against nepotism by pardoning
family members. Trump needed little prompting to engage with his new power.
Barely six months into his first year in office, Trump was reportedly
contemplating pardons to undermine Special Counsel Robert Mueller's
investigations into his campaign.
Presidents Obama and Bill Clinton had waited almost two years to issue
their first pardons. President George W. Bush had started pardoning at the
start of his second year. President Trump tried out his new powers a little
more than six months into his term on behalf of a hero of the anti-immigrant
right, Joe Arpaio, the former sheriff of Maricopa County in Arizona. Arpaio had
been convicted of criminal contempt in July, the culmination of a yearslong
racial-profiling suit over traffic stops that targeted immigrants. Trump teased
his plan to pardon him on Fox News.
Back in 1924, former president William Howard Taft, the chief justice of
the Supreme Court, paved the way for the Arpaio pardon when he wrote an opinion
that the pardon power covered judicial contempt. “Our Constitution confers this
discretion on the highest officer in the nation in confidence that he will not
abuse it,”wrote Taft, rejecting any limitation on its reach.
Neither Taft nor the Founders appear to have envisioned a president as
shame-deficient and lacking in empathy as Donald Trump. In introducing the new
Constitution in 1788, Alexander Hamilton wrote in Federalist 74 that a
“reflection that the fate of a fellow-creature depended on his sole fiat, would
naturally inspire scrupulousness and caution”in a president's choice of
pardons, while “the dread of being accused of weakness or connivance, would
beget equal circumspection.”
The early champions of the presidential pardon power saw it as necessary
to balance the scales of justice, an antidote to a public's thirst for
vengeance. Hamilton worried that the severity of the criminal code might at
times prove too inflexible. Clemency would be more easily won in such
circumstances from a single man rather than a group of his fellows.
The drug war's unequal toll on minority communities demands sweeping
grants of clemency in the form of commutations to reduce excessive prison
sentences. As of 2020, more than 200,000 Americans were serving life sentences
(amounting to one out of every seven people in prison), many for nonviolent
drug crimes or three-strikes provisions. Yet efforts to use the clemency power
more broadly to fix failings in the criminal justice system have foundered on
structural conflicts of interest.
Traditionally, the Department of Justice reviews clemency petitions and
recommends them to the president. However, the department has an institutional
bias: it's top-heavy with career prosecutors whose mission is to lock away
lawbreakers rather than release them. Justice Department guidelines recommend
that pardons be reserved for those already free, with at least five years of
good conduct and a demonstrated acceptance of responsibility for their crimes.
In practice, these guidelines resulted in pardons rather than commutations,
since the former are less politically risky. Politicians are haunted by the
specter of a Willie Horton ad highlighting some terrible recidivism of a
convict liberated by a commutation.
Activists had hoped that Obama, America's first Black president, would
use his pardon power to tackle the racial disparities in federal drug crime
sentencing by releasing those facing harsh sentences. But Obama was cautious
and slow to make clemency a priority. He created an initiative focused on
commuting the sentences of incarcerated nonviolent drug offenders in 2014, but
Justice Department officials stood in the way, and his own pardon attorney,
Deborah Leff, quit two years later, citing the administration's lack of
resources for the program. By the end of his second term, Obama had commuted
the sentences of 1,715 people and pardoned 212; it was a significant
improvement over his immediate predecessors, but nowhere near equal to the
need.
Some thought that Trump, with his jaundiced view of the criminal justice
system and his disregard for custom, might be convinced to break these
institutional logjams, if a strong enough case was put before him. One of the
petitions that Obama had declined to act on concerned Alice Marie Johnson, a
Memphis woman serving a life sentence for nonviolent drug crimes. Johnson was a
single mother with five children when she lost her decade-long managerial
position at FedEx over a gambling addiction, a misfortune that was followed by
bankruptcy, the foreclosure of the family home, and the accidental death of a
child. She turned her logistics prowess to drug trafficking, working with a
gang that imported large quantities of cocaine into Tennessee. In 1993
prosecutors indicted fifteen members of the gang, including Johnson, on drug
and money-laundering charges. While Johnson never sold the drugs herself,
prosecutors persuaded ten of her co-conspirators to testify against her in
exchange for reduced sentences. A judge sentenced her to life in prison without
parole, plus twenty-five years.
When the reality TV star Kim Kar-dashian West saw a viral video of a
prison interview with Johnson, now a grandmother, in 2018, she was reportedly
moved to tears. She made contact with the president's son-in-law and senior
adviser, Jared Kushner, and received an invitation to the White House to plead
for clemency in Johnson's case. Kushner's experience with the imprisonment of
his father, Charles, who had served fourteen months for a variety of crimes,
including tax evasion and witness tampering, had converted the son to the cause
of criminal justice reform. Celebrity approval motivated his father-in-law.
After the meeting, the president tweeted a photo of himself seated behind the
Resolute desk in the Oval Office, grinning broadly, with Kardashian West
standing beside him.
In June 2018, over the opposition of the White House counsel, his chief
of staff, and the attorney general, Trump commuted Johnson's sentence to time
served. She had been incarcerated for twenty-two years. Trump quickly found
ways to benefit from the commutation. Audio of her tearful thanks to the
president over emotional footage of her reuniting with family was used in a
thirty-second TV campaign ad that cost $5.5 million to run during the Super
Bowl. Johnson was a special guest at the State of the Union address and
received a shout-out in the speech. At the end of 2018 Trump signed the First
Step Act, a criminal justice reform bill Democrats and Republicans had tried
unsuccessfully for years to pass, given new life by Kushner and Trump. Although
neither retroactive nor as sweeping as advocates had hoped, the new law
resulted in the release of 3,100 prisoners and reduced sentences for thousands
more. In the speech he gave upon signing the bill, Trump singled out Johnson
for praise.
Still, by the end of his term, President Trump had granted clemency to
only 2 percent of the 12,078 people who petitioned him for it. Obama achieved 5
percent of 36,544 petitioners over two terms.
In the year leading up to the 2020 election, Trump tested his pardon
power in a limited way on certain high-profile categories of miscreant—the
politically corrupt, white-collar criminals, perpetrators of war crimes, and
those caught up in the investigation into Trump's 2016 campaign. After the
election, when Trump was no longer encumbered by the judgment of voters, the
number of people pardoned ballooned; more than 84 percent of Trump's acts of
clemency occurred in his final three months in office, according to the Pew
Research Center.
In February 2020 Trump commuted the fourteen-year corruption sentence of
Rod Blagojevich. The former Illinois governor, a Democrat, had served eight
years for, among other crimes, trying to sell President Obama's vacated Senate
seat. Trump didn't see what the big deal was. “That was a tremendously
powerful, ridiculous sentence in my opinion and in the opinion of many
others,”Trump told reporters. The same day, Trump pardoned Michael Milken. The
face of Wall Street sleaze in the 1980s, Milken had pleaded guilty in 1990 to
securities violations stemming from an insider-trading scheme. Two decades
after paying a $600 million fine and serving twenty-two months in prison,
Milken had his record wiped clean.
Then Trump waded into military affairs. He gave full pardons to several
men accused of war crimes who had become right-wing causes célèbres. One had
executed an unarmed suspected Taliban bomb maker, and another had fired on
Afghan civilians, two of whom died. Trump also reversed the demotion of a Navy
Seal who was accused of knifing a teenage prisoner; surrounded by fellow troops,
he posed with the dead boy as if the body were a hunting trophy.
In the first act of clemency that directly touched on investigations
into his own activities, Trump commuted the sentence of Roger Stone late on a
Friday in July 2020. Stone had been sentenced to forty months in prison for
obstructing a congressional investigation into Russia's aid to Trump's 2016
campaign. Prosecutors told the court that Stone had lied under oath, withheld
documents, and threatened an associate with the theft of his service dog if he
testified. It was yet another provocation in Stone's long history of dirty
politics, dating to the Nixon campaign and including the so-called Brooks
Brothers riot at the Miami-Dade Government Center on November 22, 2000, during
which campaign operatives demonstrated to stop
the recounting of votes in order to throw the presidential election to
George W. Bush. Stone knew his man. He had been advising Trump since the 1980s
and had long urged him to run for president. Less than four months before the
election was not ideal timing for the pardon, but federal authorities may have
forced Trump's hand by denying Stone's request for a delay in reporting to
prison. Through the media, Stone lobbied Trump hard: he'd kept his mouth shut,
he said, even though cooperation would likely have helped his case. Now,
claiming poor health, he said he might die in prison and demanded a pardon.
The commutation was accompanied by an unusually long and combative
statement that read as if Trump wrote it himself. “Roger Stone is a victim of
the Russia Hoax that the Left and its allies in the media perpetuated for years
in an attempt to undermine the Trump Presidency,”it began. After paragraphs of
attacks on the Mueller investigation, prosecutors in Trump's own Justice
Department, and the media, the statement concluded on a triumphant note: “Roger
Stone has already suffered greatly. He was treated very unfairly, as were many
others in this case. Roger Stone is now a free man!”
Trump pardoned his former national security adviser Michael Flynn the
day before Thanksgiving, and two days after the General Services
Administration's tardy certification of the incoming Biden administration. Like
Stone, Flynn had been pursued by prosecutors for his attempts to obscure
Russian involvement in the 2016 Trump campaign. After Flynn reneged on a deal
to testify, Trump and his right-wing media allies came to his aid, painting him
as a victim of a “deep state”bent on thwarting the president's every move.
Flynn's pardon provided an opportunity to give this alternative reality an
official imprimatur. “Multiple investigations have produced evidence
establishing that General Flynn was the victim of partisan government officials
engaged in a coordinated attempt to subvert the election of 2016,”the White
House statement falsely claimed.
The following month, Trump pardoned almost everyone else caught up in
the Mueller investigation, from those who had simply lied to investigators to
those at the heart of the allegations of Russian collusion. The fears of the
delegates to the Constitutional Convention had come to pass. Trump appeared to
be pardoning the “instruments”of his treason.
Two days before Christmas, Trump
pardoned his former campaign manager Paul Manafort, whom a jury had convicted
of tax and bank fraud in one court and who had pleaded guilty to tax fraud and
witness tampering in another. Although Manafort had agreed to cooperate with
prosecutors, a judge found that he had acted in bad faith. “It is hard to
overstate the number of lies and the amount of fraud and the extraordinary
amount of money involved,”said US District Judge Amy Berman Jackson, before
sentencing him to more than seven years in prison. Manafort had the deepest
Russian connections of any member of Trump's campaign leadership. He had built
a lucrative practice advising politicians and oligarchs in Eastern Europe. He
was the one taking notes at the infamous 2016 Trump Tower meeting with Donald
Trump Jr., Kushner, and a Kremlin-connected Russian attorney peddling dirt on
Hillary Clinton. As Trump's campaign manager,
Manafort fed internal polling data from electoral battleground states to
his longtime business associate Konstantin Kilimnik, identified in a Senate
Republican report as a “Russian intelligence officer.”Kilimnik then passed the
data on to Russian authorities, who likely used them to target American voters
with propaganda. Manafort was, the report concluded, a “grave
counterintelligence threat.”
Manafort, like Stone, had understood Trump's transactional approach to
pardons. In January 2018 he advised his business partner Rick Gates not to
cooperate with prosecutors, saying that he had talked to the president's
personal counsel and they were “going to take care of us.”Gates pleaded guilty
anyway and signed a cooperation agreement.
After Manafort's conviction, Trump
said the quiet part aloud. “You know this flipping stuff is
terrible,”complained the president of the United States. “You flip and you lie
and you get—the prosecutors will tell you 99 percent of the time they can get
people to flip.”
Neither Gates nor the president's former lawyer Michael Cohen, both of
whom had cooperated with prosecutors, received pardons. They had “flipped.”It
was as if a mob boss had obtained the power of the pardon.
The pre–Christmas 2020 clemency grants included other notables. Trump
bumped Stone's commutation up to a pardon. Three Republican congressmen who had
been prosecuted for various crimes received pardons or commutations, as did
several other compromised former government officials. Jared Kushner's father
joined the ranks of the newly pardoned. Trump also pardoned the perpetrators of
one of the most infamous massacres of civilians in the Iraq War, in which
private military contractors from Blackwater killed at least fourteen Iraqis,
including a nine-year-old boy, and wounded more than seventeen at Baghdad's
Nisour Square in 2007.
After the November 2020 election, a free-for-all of lobbyists and the
politically connected jockeyed to win clemency for their clients. Access often
came at a price. Petitioners paid attorneys with connections hundreds of
thousands of dollars. The process was more akin to The Apprentice than the
Department of Justice protocols that had been the norm in previous presidential
administrations. DOJ pardon attorneys had avoided lawyers and lobbyists. They
received the applications and relevant documents and did their own
investigation. Now, without a link to the White House and its most important
occupant, there was little hope a clemency petition would be heard.
With so much money marshaled to win clemency, an obvious question is
whether the famously transactional president demanded his own cut. As of this
writing, no evidence has emerged that Trump sold pardons. However, the
characteristics that made a petition for clemency appealing to Trump weren't hard
to discern: allegations that the petitioner suffered prosecutorial misconduct
helped, as did demonstrated loyalty and the possibility of future utility.
Elliott Broidy and Steve Bannon were two former campaigners for the
president who received pardons. Broidy, one of Trump's earliest fundraisers and
vice-chairman of his inaugural committee, had feasted on his access to the
administration, charging millions for lobbying, without registering as a
foreign agent, on behalf of the United Arab Emirates, Angola, and a fugitive
Malaysian financier. Those around Trump had tried to discourage the president
from pardoning Bannon, his former campaign adviser. Bannon had been charged
with wire fraud and conspiracy to commit money laundering over allegations that
to pay for personal expenses he stole more than $1 million from an online
fundraiser for Trump's border wall. By way of explanation for the pardon, the
accompanying statement described Bannon as “an important leader in the
conservative movement…known for his political acumen.”
In addition to Bannon's pardon for the charges against him, he also was
pardoned for “offenses that might arise, or be charged, in connection with the
offenses alleged”in the indictment. Such preemptive pardons have generally been
used sparingly, as in the case of Nixon, or to achieve more sweeping clemency
goals. President Jimmy Carter preemptively pardoned those who had dodged the
Vietnam War draft. President George Washington did the same for participants in
the Whiskey Rebellion, in the interest of national unity. President Trump
employed the preemptive pardon more widely than his predecessors, not for broad
categories in the interest of national reconciliation, but for those with
access and a wish to evade the criminal justice system.
Trump dedicated his final hours in office to deciding whom to pardon.
According to The Washington Post , he called aides, friends, and associates to
inquire whether they wanted a pardon or knew of someone who did. One responded
that they did not need a pardon, since they had committed no crime. Trump is
said to have replied, “Yeah, well, but you never know. They're going to come
after us all. Maybe it's not a bad idea. Just let me know.”
Anonymously sourced press accounts made much of a struggle between Trump
and his aides as to whether he would issue preemptive pardons for his family
members or himself. In the end, he reportedly decided against it. However, it
would have been easy to create a sweeping preemptive pardon document for his
children or himself, either written or by video, witnessed, time-stamped, and
then not released publicly. This so-called pocket pardon would never be seen
unless a federal indictment dropped, at which point the pardon would be
unveiled to quash the prosecution.
Whether a president can pardon himself has yet to be tested in court.
The Justice Department's Office of Legal Counsel advised an increasingly
nervous President Nixon in 1974 that it was not permissible, since no official
can be a judge in his own case. Trump was adamant from early in his presidency
that he did have the power. In 2018 he tweeted, “As has been stated by numerous
legal scholars, I have the absolute right to PARDON myself, but why would I do
that when I have done nothing wrong?”
Less than twelve hours before his term expired, Trump announced 143
pardons and commutations, bringing his total to 237. In the end, Trump's choice
of whom to pardon proved bolder than the number of pardons he granted. Only two
other presidents since 1900—George W. and George H.W. Bush—granted fewer,
according to Pew.
There is little opportunity for
accountability when it comes to Trump's pardons. Last August, Cyrus Vance Jr.,
then the Manhattan district attorney, pursued one avenue for recourse when he
charged Ken Kurson with cyber-stalking. Jared Kushner had in 2013, as the owner
of The New York Observer , hired Kurson as the newspaper's editor. Five years
later, Kushner was senior adviser to the president, and Trump nominated Kurson
to a seat on the board of the National Endowment for the Humanities. As part of
the nomination process, the FBI investigated Kurson, resulting in a federal
indictment that accused him of cyberstalking three people, including his
ex-wife. Trump pardoned him of these federal charges. Announcing new, similar
charges months later, Vance said, “We will not accept presidential pardons as
get-out-of-jail-free cards for the well-connected in New York.”
Vance, who had previously been criticized for his failure to prosecute
the former president and his children, did not charge Bannon, as it was rumored
he might. The Supreme Court has upheld the doctrine of “dual sovereignty”that
allows states to act against those pardoned on federal crimes, but New York had
a rule in place until October 2019 that prevented such prosecutions on double
jeopardy grounds. In response to Trump, the law was changed—but not in time to
prevent a court from dismissing Vance's charges against Manafort.
Barring state and local prosecutions, the only possible check on abuse
of the pardon power is Congress. In December House Democrats, in a largely
party-line vote, passed a sweeping governmental reform bill aimed at preventing
the kinds of abuses that occurred during Trump's presidency. A prominent
section of the bill focuses on the pardon power. It states that “the
President's grant of a pardon to himself or herself is void and of no
effect.”The bill also adds to the bribery statutes of the federal criminal code
the act of granting pardons in return for anything of value, and it requires
the White House to turn over to Congress all information concerning pardons
issued to a president's family members or business and campaign associates.
With the Senate gridlocked, it seems doubtful that the bill will become law.
Even if it did, how those provisions would fare in court against this power of
kings etched into the Constitution remains an open question.
NEW YORK REVIEW OF BOOKS
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