Sun Sentinel Broward Edition

Trump’s clemency: Unpardonab­ly scandalous

- Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O’Hara, Dan Sweeney, Steve Bousquet and Editor-in-Chief Julie Anderson.

On his way out the White House door, Donald Trump left a trail of pardons so redolent of cronyism, corruption and obstructio­n of justice that hard questions follow. Has the time come for Congress to attempt to curtail the clemency power, and if so, how?

The answers don’t come easily. Without a constituti­onal amendment, there may be nothing Congress can do. A reform that overreacts could prevent an honest president from correcting terrible miscarriag­es of justice. But Trump’s bad examples cannot be ignored.

Clemency is the ancient fail-safe for judicial errors and for restoring deserving people to full citizenshi­p. State governors have invoked it, when all else failed, to free the innocent and prevent wrongful executions, although it has been much too long since that has happened in Florida.

Writing in the Federalist essays, Alexander Hamilton explained why the proposed Constituti­on would allow presidents to pardon for everything except impeachmen­t.

“Humanity and good policy conspire to dictate that the benign prerogativ­e of pardoning should be as little as possible fettered or embarrasse­d,” he said. Otherwise, “justice would wear a countenanc­e too sanguinary and cruel.”

But because the clemency power is so nearly absolute, it is easy to abuse, as some other presidents did.

Trump’s fewer than 300 pardons and commutatio­ns over four years place him 29th among the presidents, 10 of whom granted thousands.

But Trump’s stand out for cronyism and other abuses.

He didn’t stop with whitewashi­ng the assorted white-collar crimes of flagrantly corrupt ex-Congressme­n, wealthy tax cheats, Ponzi schemers and Medicare racketeers.

He also came to the rescue of campaign supporters and, worse, personal henchmen like Steve Bannon, Michael Flynn, Roger Stone and Paul Manafort, who helped him blunt the Mueller investigat­ion and might still have evidence that he obstructed justice.

In themselves, such pardons might constitute obstructio­n of justice, especially if they were payoffs for protecting Trump from past or future investigat­ions.

Bannon, his former chief strategist, had yet to be tried on charges of siphoning off some $1 million from private contributi­ons solicited to extend the dubious Mexican border wall. Why were there no stay-out-of-jail-free cards for Bannon’s three co-defendants?

More than a few of the pardons appear to be a vendetta against the Justice Department for having investigat­ed Trump. Of the nearly 300 he granted during his four years, most applicatio­ns bypassed review by the department’s office of Pardon Attorney, which has had the duty since an executive order in 1893.

Flynn’s, Bannon’s and Manafort’s were a calculated insult to the career prosecutor­s who had convicted them.

While some on Trump’s final list went to ordinary people with plausible claims of questionab­le conviction­s or excessive sentences, many were conspicuou­s for string-pulling and favors repaid. During Trump’s final days there were credible reports of enormous retainers to lawyers and lobbyists who might have inside influence with him.

According to the Washington Post, at least 45 of the 144 people who received clemency in Trump ‘s last week were personally connected to him or to people close to him. They include a member of Trump’s golf club in Westcheste­r, N.Y., who had been convicted of health care fraud and had contribute­d to the personal Trump charity that he was forced to close. Others include a man convicted in an illegal sports gambling ring who owns six Trump Tower condos, and a tax evader who is the ex-husband of Jeanine Pirro, a Trump cheerleade­r on Fox News.

According to CNN, Pirro successful­ly lobbied Trump for the pardon after his name wasn’t on what was supposed to be the final list.

In commuting the 17-year sentence of Salomon Melgen, the North Palm Beach eye doctor who had served not quite four years for what the government called a $75 million Medicare fraud, Trump cited a plea on his behalf from Florida Rep. Mario Diaz-Balart, who had supported Trump’s baseless claims of a stolen election and voted against his impeachmen­t over the Jan. 6 riot at the Capitol.

Mary McCarty, the former Palm Beach County commission­er, received a full pardon for honest services fraud after lobbying by former Florida Attorney General Pam Bondi and Christophe­r Ruddy, the head of the pro-Trump Newsmax Media. Bondi shilled for Trump in his attempts to overturn the election.

Of the dozens of people charged and 29 convicted so far in the college admission scandal, Trump pardoned only Robert Zangrillo, a wealthy Miami real estate investor. Why?

Trump’s largesse to criminals with political or personal connection­s to him contrasted sharply with the 13 executions his administra­tion carried out in its final days.

The Supreme Court has never had to say explicitly whether the Constituti­on forbids Congress to enact any curbs on the pardon power. But there are reasons to try and then let the court decide. For good measure, a constituti­onal amendment should be considered. One has already been filed in the House.

It should be an explicit crime, treated as bribery, for anyone including the president to seek or accept money, legitimate legal fees excepted, for seeking a pardon or commutatio­n. It should be an explicit crime, treated as obstructio­n of justice, to grant a pardon to anyone who has figured or is a potential witness in an investigat­ion of the president or a Cabinet member. The law should require disclosure of any connection to the president, direct or indirect, including past campaign contributi­ons.

President Biden should adopt some of these reforms by executive order, although they would not be permanent.

He should also stipulate to issuing no pardon or commutatio­n without an independen­t review. But there are strong reasons to move that review outside the Justice Department, whose institutio­nal bias is to defend all federal conviction­s. Its website makes plain that in clemency cases, “the correctnes­s of the underlying conviction is assumed.” Prosecutor­s appear to have too much influence over who does deserve clemency and who does not, and its reviews are glacially slow.

Humans make mistakes. On their own, state prosecutor­s in Florida and elsewhere have establishe­d nearly 80 conviction integrity review units, which have begun to produce significan­t numbers of exoneratio­ns. The District of Columbia has one, but there are no others in the federal system. There should be; that ought to be part of the broad criminal justice reform that Congress still owes to the American people.

Hamilton’s warning that justice should not wear a cruel face is borne out by nearly 3,000 exoneratio­ns nationally since counting began in 1989.

No criminal justice system is complete or trustworth­y without a fair and effective clemency process. But its integrity should be above reasonable suspicion. What Trump left behind certainly was not.

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