Editor’s Note: Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minnesota, and the author of “Contemporary Criminal Law” (West, 2018). The opinions expressed in this commentary are his own.
With his sixth use of clemency, President Trump is pardoning Dinesh D’Souza, a conservative author and filmmaker. In 2014, D’Souza pleaded guilty to violating campaign finance laws and received a sentence of five years of probation, including eight months of supervised living in a halfway house. With this grant, this President’s use of clemency is becoming clear. Trump seems to be employing the pardon power as much for retribution as for mercy — to lash out at his critics and reward his friends who are under attack.
The constitutional pardon power is a rare and remarkable thing: It gives the president nearly unchecked power to relieve the burdens of a criminal conviction. It was meant to be a tool of mercy; Alexander Hamilton described it as such in Federalist 74.
It can play a unique and important role in sanding off the roughest edges of criminal justice. It has been abused by other presidents, of course; as a former federal prosecutor I still bristle when I think of the pardon Bill Clinton gave to Marc Rich, a fugitive who had been convicted of multiple counts of tax evasion.
Yet, while it is nothing new for a president to use clemency to reward friends and family, there is something unique and darker taking shape. Trump seems to be using the pardon power not only for the sodden purpose of helping buddies, but also to hurt those who have opposed him.
Take D’Souza, for example. In his tweet announcing the pardon, Trump said “Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!” While it might be unclear how a sentence of probation is “very unfair” to someone who pleaded guilty to a felony, it is clear who was dishing out that supposed unfairness: Preet Bharara, the former United States attorney who prosecuted D’Souza for his crime. Trump, of course, has had a running feud with Bharara: Trump fired Bharara as the United States attorney for the Southern District of New York, and Bharara then emerged as a consistent critic of Trump.
Some of Trump’s prior clemency grants fit the same pattern. For example, his pardon of Kristian Saucier, who was convicted of mishandling defense information, was seen by some as a swipe at Hillary Clinton and her email controversy. During the campaign, Trump had referred to the Saucier case in the course of upbraiding Clinton for her handling of email while serving as secretary of state.
Then, of course, there is the pardon he granted to Joe Arpaio, the former sheriff of Maricopa County, Arizona. Arpaio had been held in criminal contempt of court relating to racial profiling. It’s not hard to see the symbolism in that.
On Thursday, Trump also said he was considering pardoning Martha Stewart and commuting the sentence of former Illinois Gov. Rod Blagojevich. Trump’s lawyer Rudy Giuliani has invoked the prosecution of Stewart in discussing whether Trump should testify before special counsel Robert Mueller. James Comey, fired by Trump as FBI director, led the prosecution of Stewart, and Blagojevich was prosecuted by Comey’s friend, Patrick Fitzgerald.
There is a deeper tragedy, too. While Trump grants pardons to people like D’Souza without going through the office of the Pardon Attorney, thousands of others wait for a decision after they followed the rules. Many of them are well-deserving of consideration, having been over-sentenced for relatively minor narcotics crimes.
Here’s an idea: If President Trump really wants to make a point about the failings of his opponents, he should go big and grant commutations to the thousands of deserving petitioners who were denied or not ruled upon during the Obama administration.
Even better, he can get around to fixing an outdated and bureaucratic clemency process that Obama never repaired — a tortuous and unnecessarily redundant system where seven levels of review occur sequentially. It’s time to take that process out of the Department of Justice, too. It is President Trump’s right to make clemency decisions himself and ignore the existing process, but to do that fairly, he has to scrap what supposedly exists and create something better.
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On its own, no grievous harm is done by Dinesh D’Souza getting a pardon. Even as a cut at Preet Bharara, it isn’t much of a wound. The best outcome would be a thorough and worthwhile revising of how the process of clemency works. If the President is interested, many of us stand by ready to help.