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Pardons, Self-Pardons and Impeachment (Part III)

The case against President Trump’s exercise of the pardon power to date may be summarized as follows. Trump’s statements and actions have demonstrated (1) a complete disinterest in the official pardon process; (2) a willingness to grant pardons based on a one-sided process in which no contrary information or view is solicited or considered; (3) the granting of pardons seemingly on the basis of partiality toward political allies and/or hostility toward prosecutors he deems to be adversaries; (4) repeated expressions of authority and/or inclination to grant pardons to individuals involved in investigations in which he is personally implicated, most particularly the inquiry by special counsel Robert Mueller into Russian activities in the 2016 election; and (5) open hostility toward the special counsel, DOJ and FBI with respect to such investigations, which further signals to witnesses and targets that he may use his pardon and other powers to stop inquiry and prevent detection of wrongdoing. In addition to the foregoing, which is largely based on the public record, there is evidence (albeit controverted) that Trump personally tried to shelter a former aide (General Michael Flynn) from investigation and that his legal team discussed possible pardons with lawyers for Flynn and former campaign manager Paul Manafort.

As I will explain in some detail, these facts are more than sufficient to justify the opening of an impeachment inquiry by the House of Representatives. Failure to do so is to invite further and more serious abuses of the pardon power in the future.

Today I will cover the president’s exercise of the pardon power to date.

The Perils of a One-Sided Process

The former pardon attorney, Margaret Colgate Love, has offered a qualified defense of President Trump’s pardons as a substantive matter, arguing that “[h]is grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.” However, she notes that Trump appears to be ignoring entirely the official process for receiving pardon applications and recommendations from the Office of the Pardon Attorney in DOJ. Instead, “Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.”

As noted in prior posts, there is no constitutional or legal obligation to follow the DOJ process, or any process at all. Moreover, some have argued that the official process has unwisely and inappropriately constricted the exercise of the pardon power. See Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 606 (2012) (“the advent of a pardon attorney has institutionalized the hostility of prosecutors to the exercise of the pardon power”).

Nevertheless, there are serious risks involved in circumventing the established process for considering clemency. It significantly increases the potential for favoritism and unfairness in the granting of pardons, as well as for public perception of the same. The last days of the Clinton administration, likened by one observer to a “Middle Eastern bazaar” of pardon lobbying by Clinton friends, family, and other well-connected individuals, are a good illustration of the problem. SeeAlbert W. Alschuler, Bill Clinton’s Parting Pardon Party, 100 J. Crim. L. & Criminology 1131, 1136 (2010). As former Clinton White House Counsel Beth Nolan testified, pardon requests “were coming from everywhere,” including from politicians and celebrities. See id. 

Viewed in the most charitable light, this deluge of pardon requests overwhelmed the system and prevented President Clinton from getting accurate information or objective advice about requests brought to him by various interested parties with access to the White House. See H.R. Rep. No. 107-454, vol. 3, at 3294-95 (2002) (Minority Views of Members of the House Comm. on Gov. Reform) (“Under these circumstances, and working against the clock, the White House and Justice Department officials responsible for assisting the President could not and did not conduct appropriate review of every petition.”). As a result, Clinton made a series of highly questionable grants of clemency in the final hours of his presidency, most notoriously the pardons of wealthy fugitives Marc Rich and Pincus Green. See id. at 3295 (“The Marc Rich pardon was .  . . the product of a rushed and one-sided process, and it reflected deeply flawed judgment by the President.”). Note that these are the views of Clinton’s political allies in Congress.

Viewed more skeptically, the one-sided nature of the Clinton pardon process was a feature, not a bug, designed to enable Clinton to grant clemency as favors to family members, political cronies and wealthy donors. See H.R. Rep. No. 107-454, vol. 1, at 28-29 (2002) (House Comm. on Gov. Reform) (“In his rush to grant pardons and commutations in the waning hours of his presidency, Bill Clinton ignored almost every applicable standard governing the exercise of the clemency power.”). This resulted in pardon grants that were at best motivated by blatant favoritism and at worst actually corrupt. See id. at 27 (noting that pardons of Rich and Green “raised substantial questions of direct corruption,” while other cases “involved indirect corruption, where close relatives of the President—namely Roger Clinton, Hugh Rodham, and Tony Rodham—apparently traded on their relationships with the President to lobby for pardons and commutations.”); see also Alschuler, 100 J. Crim. L & Criminology at 1137-60, 1168 (reviewing Clinton’s most controversial pardons).

In either event, the Clinton pardons illustrate the perils of granting clemency based on a one-sided process and/or without adequate (or any) deliberation. Trump’s reliance on “random, unofficial sources of information” (including celebrities like Kim Kardashian and Sylvester Stallone) poses similar risks.

These risks may be even greater because Trump has built his pardon “back door” so early in his presidency. Clinton and other presidents issued their most controversial pardons at the very end of their administrations. While this is bad from the standpoint of electoral accountability, it also limits the damage because, once out of office, the (former) president can issue no more pardons. If, on the other hand, potential pardon seekers believe the current president is willing to use his power to reward friends and allies, they have an incentive to seek his favor in the hope of receiving clemency. This is a particular issue for those who have reason to believe (as will be discussed later) the president may be willing to shelter them from justice.

Trump’s Controversial Pardons

Notwithstanding Love’s benign take, several of Trump’s pardons have been controversial on the merits. Here we must be careful because there are no constitutional standards for granting pardons, and therefore no pardon is “wrong” or improper as a constitutional matter. Criticism, however well-founded, of the merits of a particular pardon is in itself simply a political or policy disagreement, not a legitimate basis for impeachment.

Nonetheless, the merits of a pardon decision may still be relevant to whether there has been an impeachable abuse of the pardon power. A dramatic departure from traditional norms and standards, including the Justice Department’s criteria for evaluating pardon decisions, may suggest that a pardon was motivated by something other than the president’s sincere view of the merits. See generally H.R. Rep. 107-454, vol. 1, at 29-31 (describing DOJ standards for pardons). A pattern of questionable pardons given to friends or allies may suggest favoritism, corruption or some other improper motive. The granting of pardons without serious consideration of countervailing factors, such as their potential to undermine the administration of justice, may suggest recklessness and a breach of the duty to take care the laws be faithfully executed. Cf. id. at 35-37 (criticizing Clinton’s pardons as establishing “two standards of justice” and undermining “efforts of law enforcement officers everywhere”).

Of the five pardons and two commutations granted by President Trump to date, three stand out as problematic. The very first pardon, that of Joe Arpaio, was particularly controversial. Arpaio, an Arizona sheriff and close Trump ally, had been found guilty of contempt for defying a court order that prohibited him from arresting aliens not suspected of criminal activity. Trump pardoned Arpaio before the court had even imposed a sentence.

We put aside here policy and political disagreements over immigration and Arpaio’s treatment of and attitude toward immigrants. The Arpaio pardon is still troublesome for several reasons. First, contempt of court is a serious offense that impacts the functioning of an independent branch of government. Indeed, there was once a conflict of authority on whether criminal contempt could be pardoned at all, and in Ex Parte Grossman, 267 U.S. 87, 119 (1925), it was “urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary, and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers.” The Court, in an opinion by Chief Justice Taft, rejected that argument but noted that the hypothetical abuse of the pardon power to interfere with a court’s authority “would suggest a resort to impeachment.” Id. at 121.

Second, the Arpaio pardon was clearly inconsistent with Justice Department guidelines on making pardon recommendations. Among other things, those guidelines place a strong emphasis on acceptance of responsibility, remorse and post-conviction conduct evidencing rehabilitation. See H.R. Rep. No. 107-454, vol. 1, at 29. None of these was applicable in Arpaio’s case.

The guidelines also emphasize that for very serious offenses, such as those involving breach of public trust, “a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction.” Id. Moreover, “[i]n the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account.” Id. All  of these factors counsel against the pardon, prior to sentencing, of a prominent public official who openly flouted court orders. As Andrew McCarthy, who is often sympathetic to the president, observed at the time, the pardon put “Trump in the position of endorsing Arpaio’s misconduct—a law officer’s arrogant defiance of lawful court orders, which themselves were issued as a result of judicial findings that Arpaio discriminated against Latinos in conducting unlawful arrests.”

Furthermore, the timing of the pardon was not only contrary to DOJ guidelines, it was unnecessary and imprudent because Arpaio had more than one avenue of judicial relief still available. Noting “[t]here was no sensible reason to pardon Arpaio at this time,” McCarthy criticized the “decidedly unpresidential impulsiveness of the pardon.”

Finally, it hardly seems controversial to note that Arpaio’s pardon was “for the benefit of a political crony” and was not even ostensibly based on an impartial consideration of the merits. If there is any evidence to suggest Trump considered arguments against the grant of the pardon, such as its effects on the administration of justice, I am not aware of it. There is every reason to believe that Trump’s process was as one-sided as Clinton’s, if not more so.

Of course, Trump is not the first president to pardon a political ally or supporter. It is instructive, however, to compare how President George W. Bush approached an analogous situation. Bush faced enormous pressure from his own vice president, Richard Cheney, to grant a pardon to Scooter Libby, Cheney’s former chief of staff. Libby (who ironically made a cameo appearance in the Clinton pardon saga as one of Marc Rich’s lawyers) had been convicted of perjury and obstruction of a special counsel’s investigation into alleged misconduct by the Bush administration in the aftermath of the 2003 invasion of Iraq.

Like Arpaio, Libby was convicted of an offense against the administration of justice in connection with an investigation that his defenders, who were also the president’s allies, viewed as politicized and unfair. Bush, however, declined to pardon Libby, accepting the advice of White House counsel that Libby “hadn’t met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse.” As one participant in the process explained: “Pardons tend to be for the repentant, not for those who think the system was politicized or they were unfairly targeted.”

Bush did agree to commute Libby’s sentence, but the statement he issued carefully weighed both sides of the controversy. It did not excuse Libby’s conduct or endorse claims that he had been targeted for political reasons. Bush was careful to express respect for the special counsel, his investigation and the jury verdict in Libby’s trial.

Bush’s commutation decision contrasts not only with the Arpaio pardon, but with another controversial pardon granted by Trump: that of Libby himself. On April 13, 2018, Trump granted Libby a full pardon, saying in an official statement: “I don’t know Mr. Libby, but for years I have heard he has been treated unfairly.”

Trump’s reference to unfairness contrasts with Bush’s approach and certainly can be construed as an aspersion on the special counsel investigation at issue. It may not be entirely coincidental that the special counsel who prosecuted Libby was appointed by then-deputy attorney general James Comey. And, as in Arpaio’s case, there is reason to question whether Trump gave consideration to both sides of the issue, or whether he listened only to those who thought Libby had been treated “unfairly.”

Trump’s third controversial pardon presents similar problems. On May 31, 2018, he pardoned Dinesh D’Souza, a well-known conservative commentator and author, who had pleaded guilty to straw donor campaign finance violations in 2014. According to a White House press release, the president believed D’Souza to be “a victim of selective prosecution,” and Trump himself tweeted that D’Souza “was treated very unfairly by our government!”

D’Souza’s defenders (who include McCarthy) argue that his offenses were minor and ordinarily would be treated as a civil matter; they ascribe his prosecution by the prior administration as retaliation for his strident criticism of President Obama. Perhaps this is true, but anyone seeking to make a fair evaluation of that claim would need to hear the perspective of the prosecution as well. Compare H.R. Rep. No. 107-454, vol. 1, at 32 (Rich and Green “maintained that they were ‘singled out’ and unfairly prosecuted”) with id. at 104 (“The White House never consulted with the prosecutors in the Southern District of New York regarding the Rich case.”). In the absence of evidence President Trump consulted prosecutors or anyone other than D’Souza’s supporters, there is at least a prima facie case that this pardon was also motivated by favoritism and/or hostility toward prosecutors in the Obama administration, particularly the then-U.S. attorney for the Southern District of New York, Preet Bharara, now an outspoken Trump critic.

Taken together, these three pardons (Arpaio, Libby and D’Souza) suggest a one-sided process, blatant favoritism, and an “unpresidential impulsiveness” inconsistent with the president’s duty of care. (There is no reason to believe that Trump intends to change his practices in this regard; to the contrary, he has publicly mused about additional clemency actions for Martha Stewart and former Illinois governor Rod Blagojevich.) Those concerns would serious enough, but they are dramatically heightened when one considers the president’s posture toward the investigation of Russia’s efforts to interfere in the 2016 presidential election. I will turn to that subject in my next post.

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