Trump Pardon Spree Continues

Official White House Photo by Tia Dufour

Maggie Haberman and Michael S. Schmidt report for the NYT (“Trump Pardons Two Russia Inquiry Figures and Blackwater Guards”):

In an audacious pre-Christmas round of pardons, President Trump granted clemency on Tuesday to two people who pleaded guilty in the special counsel’s Russia inquiry, four Blackwater guards convicted in connection with the killing of Iraqi civilians and three corrupt former Republican members of Congress.

It was a remarkable assertion of pardon power by a president who continues to dispute his loss in the election and might well be followed by other pardons in the weeks before he leaves office on Jan. 20.

While pardoning convicted war criminals is outrageous, damaging our moral credibility and foreign relations, it is neither “audacious” not “a remarkable assertion” of power. The Constitution grants the President this plenary power to use as he sees fit.

Mr. Trump nullified more of the legal consequences of an investigation into his 2016 campaign that he long labeled a hoax. He granted clemency to contractors whose actions in Iraq set off an international uproar and helped turn public opinion further against the war there. And he pardoned three members of his party who had become high-profile examples of public corruption.

The 15 pardons and five commutations were made public by the White House in a statement on Tuesday evening. They appeared in many cases to have bypassed the traditional Justice Department review process — more than half of the cases did not meet the department’s standards for consideration — and reflected Mr. Trump’s long-held grudges about the Russia investigation, his instinct to side with members of the military accused of wrongdoing and his willingness to reward political allies.

While my strong preference is that Presidents pardon only those who merit it under DOJ standards, the Constitution vests the power in one individual. His sense of justice alone is enough.

But, of course, this goes beyond that: he’s also pardoning cronies here. Alas, that’s hardly unprecedented.

Hundreds if not thousands of clemency seekers have been looking for avenues of influence to Mr. Trump as he weighs pardons before leaving office. The statement highlighted a number of prominent Republicans and Trump allies who had weighed in on behalf of those granted clemency. Among them were Pam Bondi, a former Florida attorney general and lobbyist who helped defend Mr. Trump during his impeachment, and Pete Hegseth, a Fox News commentator who has pushed for previous pardons of service members.

It’s beyond weird that Trump is making pardon decisions based on input from crackpots. Alas, that’s his right.

One of the most notable pardons went to George Papadopoulos, who was a foreign policy adviser to Mr. Trump’s 2016 campaign and who pleaded guilty in 2017 to making false statements to federal officials as part of the investigation by the special counsel, Robert S. Mueller III.

Alex van der Zwaan, a lawyer who pleaded guilty to the same charge in 2018 in connection with the special counsel’s inquiry, was also pardoned. Both he and Mr. Papadopoulos served short prison sentences.

The Mueller-related pardons are a signal of more to come for people caught up in the investigation, according to people close to the president.

Mr. Trump has already pardoned his first national security adviser, Lt. Gen. Michael T. Flynn, who pleaded guilty twice to charges including lying to the F.B.I. in connection with the Russia inquiry. In July, the president commuted the sentence of Roger J. Stone Jr., his longtime adviser who was convicted on a series of charges related to the investigation. Both men have maintained their innocence.

Mr. Trump’s list of pardons on Tuesday included four former U.S. service members who were convicted on charges related to the killing of Iraqi civilians while working as contractors for Blackwater in 2007.

One of them, Nicholas Slatten, had been sentenced to life in prison after the Justice Department had gone to great lengths to prosecute him. Mr. Slatten had been a contractor for the private company Blackwater and was sentenced for his role in the killing of 17 Iraqi civilians in Nisour Square in Baghdad — a massacre that left one of the most lasting stains of the war on the United States. Among those dead were two boys, 8 and 11.

There were a handful of standard pardons mixed in, correcting perceived historical injustices, presumably for camoflague.

Rather clearly, it makes no sense to have the justice system—at least at the federal level—depend so heavily on the whims of one man. Even if we assume that Trump’s successors will be decent, rational actors, there ought to be some formal process for this.

But Article II, Section 2 of the Constitution seems clear on this point: “The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” There is no provision, as with other powers, for the advise and consent of the Senate.

In an ideal world, Congress would pass a law requiring that the President pardon only individuals who have been recommended for his consideration by some independent review board. Or, at least, have some check on the power. But it’s not at all clear to me that this would be Constitutional.

FILED UNDER: Donald Trump, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kylopod says:

    In an ideal world, Congress would pass a law requiring that the President pardon only individuals who have been recommended for his consideration by some independent review board.

    In an ideal world there would be no such thing as “pardon power.” It’s yet another holdover from British monarchy that the Founders stupidly decided to keep.

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  2. MarkedMan says:

    At the very least, a pardon should only be valid if it lists the crimes being pardoned. That should be do-able as a constitutional amendment, if necessary.

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  3. CSK says:

    Quote: “It’s beyond weird that Trump is making pardon decisions based on input from crack pots.”

    No, it isn’t. It’s typical Trump.

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  4. Paine says:

    I imagine we will be hearing a lot about Marc Rich until this blows over.

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  5. mattbernius says:

    As someone working in the criminal legal system reform space, I find all this especially galling when you take into account:

    1. Trump to date has issued fewer pardons than previous Presidents.
    2. He also shut down the traditional pardons office which would make recommendations about people deserving of pardons, essentially using them as solely a political and patronage tool.
    3. He also does this as he restarted and accelerated Federal Executions (and has refused to commute any death sentence to life in prison).

    I’m also old enough to remember when Republicans, including the President, eviscerated Obama for pardoning and commuting countless low-level non-violent drug sentences.

    So yeah, add this to the “eff him” pile.

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  6. Kylopod says:

    @mattbernius:

    I’m also old enough to remember when Republicans, including the President, eviscerated Obama for pardoning and commuting countless low-level non-violent drug sentences.

    Without trying to get into whataboutism or charges of partisan hypocrisy, I will just say that pardoning has been rotten business for a long time–and I will indeed cite some of the Clinton pardons, the Iran-Contra pardons (crafted by a certain fellow named Bill Barr), and Ford’s pardon of Nixon as examples.

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  7. James Joyner says:

    @Kylopod:

    In an ideal world there would be no such thing as “pardon power.” It’s yet another holdover from British monarchy that the Founders stupidly decided to keep.

    Maybe. But there’s something to the Executive having the power to right wrongs. Once someone is convicted of a crime, appellate judges are pretty much geared toward having them serve out their sentence unless there was a shocking miscarriage. Even DNA evidence exhonerating them usually isn’t enough.

    Plus, there are whole categories of people being guilty of something that, in retrospect, shouldn’t even have been a crime. Or punishments that are, as we’ve evolved, too onerous. I would be happy to see something like a blanket pardon of those in prison for simple possession of narcotics, commutation of all federal death penalties to life without parole, or the like.

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  8. Maybe Reps would go along with an amendment to limit the power while a Dem was in office. I am not confident of this at all, but that would be the only time it might have a shot.

    Indeed, it is the only time any limitations on presidential power might have a shot–Reps are not going to limit a Rep president, some Dems might be willing to limit a Dem pres, however (although some will not).

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  9. @James Joyner: I agree as a general matter but would love to see the pardon power given to an appointed body of some kind.

    This is not a reform area that I have given a ton of thought to, but the current power, while it has its uses and justifications, is just too much in its current form.

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  10. mattbernius says:

    @Kylopod fair. And I definitely have mixed feelings about the US pardon structure as a whole — both at the state and federal level. As James and Steven suggest, a board would probably be a better option (though as we know with Parole Boards, they are also deeply political institutions).

    I should also note, that I fully supported (and will give Trump credit for) pardoning Alice Marie Johnson. What’s unfortunate is that there are many other people still in Federal Prison under similar conditions that are equally deserving.

    Also, it’s worth noting that while Trump just pardoned Duncan Hunter, Hunter’s wife received no such treatment. Classy to the last.

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  11. mattbernius says:

    @James Joyner:

    Once someone is convicted of a crime, appellate judges are pretty much geared toward having them serve out their sentence unless there was a shocking miscarriage. Even DNA evidence exonerating them usually isn’t enough.

    100% correct, especially when the case moves from State Appellate to Federal (this is in part due to what the courts are able to consider as part of their pervues).

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  12. Kylopod says:

    @James Joyner: Just because you can point to individual examples of times when this power has been put to good purpose doesn’t mean it’s a good power to keep around. For that matter, you could make a similar argument about monarchy itself: there are kings who have ruled in a wise and benevolent way, or have done good things that would be harder to achieve through the messy system of democracy. The pardon power is still fundamentally anti-democratic because it enables in effect a complete suspension of an (admittedly imperfect, but still functional) system of laws. And that’s without even getting into the great potential for corruption. I would certainly support a reform like the one you suggested over doing nothing at all, but I’m not convinced it would be such an effective check on corruption, especially when you consider how much Congress has enabled or rubber-stamped so many of Trump’s corrupt acts.

    I’m also skeptical of the way the power is used even at its best, because it can have the effect of distracting from a larger problem by focusing on individual cases. You commute the sentences of a thousand kids given 10 years for smoking a joint, that may be a good thing in itself, but it’s the proverbial band-aid on a gaping wound.

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  13. KM says:

    @Kylopod:

    The pardon power is still fundamentally anti-democratic because it enables in effect a complete suspension of an (admittedly imperfect, but still functional) system of laws.

    I would add to that sentence “at the whim of a single individual unchecked and without justification.” The suspension of the result of the system isn’t necessarily the problem as the idealized logic behind the pardon is the same as the veto – the *system* could be corrupted down to it’s bones but stopped by a single righteous person. It is supposed to be the last grasp of justice offered to the unfairly imprisoned or wrongly convicted. Democracy as a process can be easily used to hurt the minority as all it takes is a vote to remove rights or inflict punishment that is able to make it through the proper channels. What’s the old meme – Sorry Scarecrow, we all took a vote and now you’re kindling? Democracy, Liberty and Justice are interrelated concepts but not the same thing in the end.

    The true problem is it’s omnipotence as there’s no requirement to even *have* a reason, let alone provide it or details. Instead of being democracy’s last rope to those the system has failed, it instead is a personal favor from Those On High to escape the law’s consequences. I’m fine with it being a subversion of small-d democracy as long as there are rules and requirements attached to limit abuse and provide clarity. As @MarkedMan noted, it should come with a documented list of *what* is being pardoned as well as the official justification of *why* and the history of it’s granting. Did it take 20 years, multiple POTUS and several grass-root campaigns to get a sentence commuted for selling a bag of weed….. or did it take 10 mins and $20million for a “financial irregularities” to the tune of billions pardon to happen?

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  14. Just nutha ignint cracker says:

    @Paine: Certainly, but all that shows is that whenever a President grants a pardon, someone, somewhere, will find it objectionable. And significant numbers of the objectors will probably have a point in their favor. It’s ultimately just part of the game that we keep playing in the dotage of our governmental system. Eventually, enough good people will decide that they’re fed up and design new systems, but that will take good people. We seem to be short of that commodity at the moment.

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  15. Kylopod says:

    @KM:

    I would add to that sentence “at the whim of a single individual unchecked and without justification.”

    I was thinking of saying that, but I was responding to James who had already proposed a reform in which a president couldn’t do a pardon unilaterally, instead being required to work with a board that would provide oversight. And for the record, I think such a reform would be a step in the right direction. But if I had it my way, I’d just get rid of the pardon power altogether.

    I’m under no illusions that either abolition or serious reform is going to happen anytime soon. But it’s still worth putting into the national conversation so that it may ultimately have an effect somewhere down the line. (In the 1980s gay marriage and pot legalization were almost unthinkable.) We may even get some states to implement a version of it for their governors.

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  16. Barry says:

    @Kylopod: “And that’s without even getting into the great actuality of corruption. ”

    FIFY

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  17. OzarkHillbilly says:

    @Just nutha ignint cracker: but that will take good people. We seem to be short of that commodity at the moment.

    Hey now, I’m sitting right here. And at least I rise to the level of mediocrity from time to time.

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  18. JDM says:

    I think Biden should continue the pardon spree. In his first week he should pardon his son, Hunter, and Hillary Clinton, just to fuck with the Trumpsters. Then pardon all low level federal drug offenders. I’m sure other commenters here will have more interesting ideas about who Biden should immediately pardon.

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  19. Moosebreath says:

    Meanwhile, Trump pardons another 26 people, including Roger Stone, Paul Manafort, and Jared Kushner’s dad:

    “The pardons extend Trump’s streak of wielding his clemency powers for criminals who are loyalists, well-connected or adjacent to his family. While all presidents issue controversial pardons at the end of their terms, Trump appears to be moving at a faster pace than his predecessors, demonstrating little inhibition at rewarding his friends and allies using one of the most unrestricted powers of his office.”

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  20. Kathy says:

    Actually, I think we’re getting off easy.

    On several occasions in the past four years, there were reports of government officials, up to cabinet secretaries, who refused orders or requests from Trump on the grounds that these were illegal. Trump then would say he’d pardon anyone who got in trouble.

    Now, I’m sure the fear in these officials was about civil suits, not criminal penalties. Civil matters are not covered by a pardon. But what if Trump had taken it in his head to order protesters shot? Or had ordered the DoJ to prosecute or arrest anyone he fancied for any reason or no reason? Pardons for all if there are any consequences.

    BTW, executive clemency, which I believe exists in some states as well and is dispensed by governors, is kind of a lottery. That is, it remains a long shot, and is dependent on political expediency.

    Anyway, short of amending the Constitution, little can be done about it. Presidents are not known for issuing EOs that limit their powers. We’re back to eroding norms and their consequences.

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  21. Teve says:

    @JDM: similar thoughts occurred to me, but Hillary Clinton shouldn’t accept a pardon because accepting a pardon is an admission of guilt.

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  22. Gustopher says:

    @JDM: Biden could pardon various Republican officials for their part in helping him steal the election.

    For instance Amy Coney Barrett.

    Now, granted, Biden didn’t steal the election, and Barrett did nothing other than not magically overturn the results, but it would stir up so much on the right, especially among the people who believe that Justice Barrett is Joe Biden’s dead daughter who faked her death at 6 months old to fight the global pedophile ring, because Biden’s daughter was nicknamed Amy and you don’t get stronger evidence than that.

    Also, he could pardon Bill Clinton for any and all federal crimes pertaining to the pardon of Marc Rich.

    Just throw down the gauntlet and dare the Republicans to limit the pardon power and also argue in circles that President Trump can pardon anyone but Biden’s pardon of Clinton for pardoning Rich is invalid and a crime.

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