How Trump Has Already Abused His Presidential Pardon Power
WASHINGTON—President Trump interrupted Thursday’s “executive time” – his ritual morning Twitter kvetch – to make some actual news:
Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!
— Donald J. Trump (@realDonaldTrump) May 31, 2018
Dinesh D’Souza is a long-standing member of the conservative movement’s trigger-the-libs faction. He began as something of a right-wing wunderkind with his critiques of academia and liberal campus culture, but over time has evolved into one of the far right’s most beloved trolls with books like The Roots of Obama’s Rage and the films 2016: Obama’s America and America: Imagine a World Without Her. In 2014, D’Souza pled guilty to using a straw donor scheme to donate $20,000 to a Republican Senate candidate in New York. A judge spared him jail time, sentencing him to five years of probation.
Sen. Ted Cruz (R-Texas) and members of the pro-Trump conservative media have singled out D’Souza’s case as an example of the federal government punishing a Barack Obama critic. Trump, in his tweet announcing the pardon, echoed this view when he wrote that D’Souza “was treated very unfairly by our government!” And apparently D’Souza wasn’t alone in his supposed mistreatment: In a briefing with reporters on Thursday, Trump said he was considering a pardon for Martha Stewart and commuting the sentence of ex-Illinois Gov. Rod Blagojevich.
As with so many things about Trump’s presidency, this is not normal. “I think we are in uncharted territory,” says Lisa Kern Griffin, a professor at Duke Law School.
Just a year and a half into his term, President Trump has plowed ahead with a series of pardons that can only be described as politically – and personally – motivated. Last year, he pardoned former Arizona sheriff Joe Arpaio, who was convicted of criminal contempt of court for ignoring an order to stop detaining suspected undocumented immigrants. And in April he said he would pardon Scooter Libby, a former aide to Dick Cheney convicted of perjury in a CIA leak case.
Typically, someone seeking a pardon applies for one and the application is heavily vetted by lawyers at the Department of Justice. Trump just went ahead and did it. “Nobody asked me to do it,” the president said of his D’Souza announcement. “I read the papers. I see him on television.” The same applied for the Arpaio and Libby pardons as well.
“None of these pardons has gone through the vetting process and gone through the pardoning attorneys at the Department of Justice,” Griffin says. “These have all been cases in which the White House has circumvented the conventional procedures and norms about pardons.”
Each of these three pardons is red meat for the base. They’ve got the fingerprints of Trump’s vindictive streak all over them. But above all, these pardons signal a growing willingness by Trump and his White House to use the power of the pardon in troubling new ways and for the benefit of political allies in legal trouble.
If Trump was indeed looking for a way to spite his enemies in law enforcement, pardons in these cases were one way to do it. Ex-FBI Director James Comey, Comey’s lawyer and former federal prosecutor Patrick Fitzgerald and former Southern District of New York prosecutor turned Trump critic Preet Bharara notched victories in these cases – victories that Trump has now wiped out.
The D’Souza, Arpaio and Libby pardons each stem from different violations of the law – but they all bring into relief Trump’s outright hostility to basic tenets of governance and the law. “If you think of these three pardons as slaps in the face of the rule of law, national security, and fair elections, that’s the democracy trifecta,” says Peter Shane, a professor at Ohio State’s Moritz College of Law.
The three pardons can also be viewed as Trump signaling to aides and associates who are or could be targeted by Special Counsel Robert Mueller’s Russia investigation. Each of the three issues at play in the cases of D’Souza, Arpaio and Libby are also issues that fall under Mueller’s purview.
Think about it this way: Trump saying he plans to pardon D’Souza for campaign finance violations could indicate a willingness to pardon, say, Michael Cohen, the president’s embattled personal lawyer, if Cohen’s payments to Stormy Daniels were found to trigger campaign finance violations:
Today’s pardon yet another signal to Michael Cohen and others about the possibility of a Trump pardon—-and this one, like potentially Cohen’s case—involves campaign finance violations https://t.co/XUPUORB2EZ
— Rick Hasen (@rickhasen) May 31, 2018
“If you look at the trio of pardons together – the Arpaio, Libby, and D’Souza pardons – you have a trio of pardons for contempt of court, national security breaches, and campaign finance violations,” Griffin says. “Those are all precisely the sorts of things the president and his associates are exposed to.”
Because a president can’t pardon someone for a state-level conviction, the investigations underway in various states potentially involving Trumpworld figures become that much more important, says Shane, the Ohio State law professor.
By all indications, Trump’s pardon spree is far from over. We’re going to see in the upcoming months just how broad and deep the president’s pardon power is. “It is quite a expansive power,” says Duke’s Lisa Kern Griffin, “and he seems quite intent on demonstrating that.”