Trump’s clemency: Unpardonably scandalous
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.