Pardoning Your Pals

The President’s plenary power to pardon is an essential part of his authority as head of the executive branch.  The Framers recognized that, sometimes, the reach of criminal law is too wide and too harsh, even if correct under its black letter.  Hence the power to grant clemency.

This week, however, and today in particular, President Trump pardoned a number of people, not because the system had treated them unfairly, but  —  we have no realistic alternative to believing  —  because they were his buddies or political allies.

There is no way to look at this other than as an abuse of office.  Using your power (and your trust) as an officer of the government simply to shower benefits on your friends must be high on the list of what it means to be corrupt.  I was honored to be one of President Trump’s nominees for the Sentencing Commission, but his actions today were wrong.  In a later post, I will examine what if anything can be done to rein in abuses of this sort (which, I might add, are anything but exclusive to Donald Trump).

11 Responses

  1. Douglas Berman says:

    Assuming Trump sincerely viewed the Robert Mueller’s investigation into Russian interference in the 2016 election to be entirely unjustified and unjust, would you consider all the pardons to persons subject to prosecution because of that investigation to be abusive?

    Put slightly differently, Bill, I am eager to hear your accounting of what constitutes abuses of the pardon power. Were the Blackwater pardons abuses? Margaret Hunter? Weldon Angelos? In a show of transparency, the statements from the White House regularly mention the his Trump buddies or political allies who supported clemency for particular individuals. Were these all abusive?

    • Many years ago, I wrote a proposed amendment to the California Constitution to limit the Governor to reprieves, not pardons or commutations, during the lame duck period. If a chief executive wants to issue a pardon, let it be done before the election so that the propriety of the pardon can be part of the election debate.

      My proposal was killed in committee, as most good crime bills are in the California Legislature and have been for as long as I have been doing this work. One of the objections was that there was no demonstrated need for it, as the last several governors had not misused the pardon power in the lame duck period.

      Saying we don’t need to lock the barn door because no horses have been stolen lately is obviously fallacious. Sure enough, some years later Gov. Schwarzenegger pardoned the son of a political pal at the end of his tenure.

  2. Bill Otis says:

    Your comment, though short, opens a lot of very important issues at the heart of what the rule of law means. Even if it were not Christmas Eve, I’d have trouble analyzing even a majority of them. So my remarks will be briefer than the subject warrants.

    If “the rule of law” is to mean anything, officers of the government must be governed by objectively reasonable beliefs, not merely sincere ones. People sincerely believe all sorts of things — that they’ve been abducted by aliens, that the world was created 7000 years ago, and that the Rapture is coming next Tuesday. But a society governed by anything we would recognize as law cannot rest its approval/disapproval of the acts of it officials merely on the officials’ sincerity. Down that road lies solipsism, not law.

    Trump could (and apparently does) have an objectively reasonable belief that some on Mueller’s staff allowed their quite pronounced political inclinations to affect their discretionary decisions. He may also have a sincere belief that the whole Mueller investigation was, as you put it, “entirely unjustified and unjust,” but such a belief cannot in my view be seen as objectively reasonable. There was enough there to begin an INVESTIGATION, but that is a low, low, low standard.* As Mueller himself concluded, nothing like adequate proof of Russian rigging of the election was there.

    It follows that it would be improper, without more than mere personal “sincerity,” to pardon everyone Mueller’s people convicted. It depends on the objective facts, which differ markedly from case to case. For reasons it would take too long for me to elaborate right now, the pardon in Flynn’s case was justified, while Manafort’s and Stone’s weren’t. Indeed, in the many years I’ve been in or near the prosecution business, I have seldom seen more unabashed criminality than those two showed.

    I’m going to pass on your second paragraph, because I have not (and very likely will not) review each of the 20 pardons issued yesterday, or the 12 the day before. As a general matter, my view is that executive clemency is permissible where, in the individual case under scrutiny, the judicial process has produce a clear and manifest injustice. It is impermissible where the President is just trying to exercise a power the Constitution does not give him, to wit, a retroactive veto of a whole swath of statutory law (for example, federal drug statutes). And it is certainly impermissible where the President is, solely by virtue of his public trust and power, just handing out goodies to his pals, which is (as you surely know (I get it when you’re pulling my leg)) what happened with Manafort and Stone.

    *The federal grand jury enjoys sweeping authority. It may begin its examination even in the absence of probable cause or any other level of suspicion that a crime has been committed within its reach. In the exercise of its jurisdiction, the grand jury may “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not,” and its inquiries “may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.” Unrestrained “by questions of propriety or forecasts of the probable result of the investigation or by doubts whether any particular individual will be found properly subject to an accusation,” its “investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.”

  3. Douglas Berman says:

    Thanks for this thoughtful reply, though history suggests that nearly every Prez has seen the need to use the clemency power for a lot more than just to remedy when “the judicial process has produce a clear and manifest injustice.” Indeed, I would think we would want to have court remedies for when “the judicial process has produce a clear and manifest injustice,” and in various ways Congress has created those remedies (e.g., 2255, the expanded compassionate release authority).

    I will not belabor these points, but rather will just eagerly await any coming proposal to “rein in abuses.” But I will wonder how many “political” uses of the power (by Prez Washington, Johnson, FDR, Truman, Ford and Carter, among others) will fare under your proposal to restrict this power.

  4. Sean O'Brien says:

    Putting aside the Kushner pardon, of which I know little, but it doesn’t look good, I am fully in favor of undoing all of Robert Mueller’s lawlessness. The prosecution of Michael Flynn stained the entire enterprise, from using 302s that we edited by someone who was not present at the interview, to withholding, contrary to court order, Brady material.

    The whole Mueller investigation was designed to undercut our democracy (it cannot be that preferred people like Hillary Clinton get to be “exonerated”) while those disfavored by the permanent bureaucracy get US intel resources sicced on them, and when that fails, using the resources of the criminal justice system to hamstring a presidency.

    Manafort is clearly a shady character, but is he any less shady than Mr. Podesta, a person who, IIRC, was granted immunity by the Special Counsel? The fact is that FARA had really never been enforced, until Trump came to town. That’s a problem.

    And let’s compare and contrast Roger Stone (who, by the by, was unconstitutionally gagged by Judge Amy Berman Jackson) with the crimes of Kevin Clinesmith. Or let’s evaluate the veracity of Brandon Van Grack’s statement regarding Flynn’s agreement to plead guilty—clearly, there was a quid pro quo–Flynn’s son would be left alone (from a threatened FARA prosecution, ridiculous of course, but the process can be the punishment,)–but Van Grack stated in open court that there was none. Trump, rightly, in my opinion, can look at this whole thing as a disgusting sham and an attack on democracy.

    Quite bluntly, after the Epstein fiasco and the Flynn prosecution (and the non-prosecution of McCabe et al.), I don’t see how DOJ has any integrity. And I think we need to be more worried about the abuse of process rather than Roger Stone (who really never should have been hauled in front of Congress in the first place–just think if Congress had hauled Clinton people into Congress to talk about the Steele Dossier) getting off.

    • Douglas Berman says:

      Is Sean eager to start a new campaign: #defundDOJ? Joke aside, seems like Sean would agree that a “decency defender” should always focus first on whether there is an abuse of the government’s police power rather than worrying about the potential wrong-doing of a potential defendant.

      • Bill Otis says:

        Sean is amply able to speak for himself. I’ll just say briefly that what you propose is no different from the not-so-decent-defender system we have right now, in which defense counsel beats the bushes for someone else — anyone else — to blame, lest his client wind up taking responsibility for his own behavior. I proposed changing things so that defense counsel becomes less a beat-the-rap-at-any-price hired gun and more reflective — in other words, someone more interested than we see under current standards in encouraging full candor, responsibility and improved behavior in his client and maybe — dare I say it? — in the defense bar itself. Do you support that sort of change, or are you content with the degree of reflectiveness, candor and responsibility we see now and think that’s “good enough for defense work”?

        • Douglas Berman says:

          I read Sean’s comment as a statement that our first priority should always be to demand “full candor, responsibility and improved behavior” from government actors, particularly those seeking to condemn and punish individuals through our criminal justice systems. I am always pleased to see defense attorneys (as well as Govs and Prez using clemency powers) do what is permissible within the bounds of the law and ethical responsbilities to demand “full candor, responsibility and improved behavior” from government actors. And given some of the claims being made these days by some civil lawyers in court and on twitter, I think defense lawyers are right now the least of our problems.

          I do mean to speak for Sean, but I do mean to agree with his suggestion that generally “we need to be more worried about the abuse of process” by government officials than about any particular criminal defendant inappropriately getting off.

          • Bill Otis says:

            “I am always pleased to see… Govs and Prez using clemency powers….[to] do what is permissible within the bounds of the law and ethical responsbilities to demand “full candor, responsibility and improved behavior” from government actors.”

            Does that mean that you approve of the pardons for Stone and Manafort? And no, I’m not asking if that was a decision the President gets to make; we all agree that it was. The question is whether it was the right decision. Under neutral principles of general applicability, were those two pardons specifically the right thing to do?

  5. Bill Otis says:

    Hi Sean — Very good to see you commenting again. I hope you will be a regular. People who pay attention to specifics and then do analysis rather than narrative are a rare find these days. Later, I hope to put up a substantive response to your remarks.

  6. Douglas Berman says:

    Bill, I do not approve of the pardons for Stone and Manafort, largely because I do not think either have done anything virtuous to “earn” relief from seemingly valid convictions and because these grants reinforce perceptions that rich and connected individuals receive their own special form of “justice” in our system. But I do not view these wrongful pardon grants as providing a strong basis for seeking a constitutional amendment to restrict the federal clemency powers, especially because I can see the basis for a reasonable claim (as Sean seems to make) that an abuse of government law enforcement powers led to these convictions in problematic ways. Just as some ugly examples of ugly wrongful convictions do not call for constitutional reform of executive authority in response, I do not think Prez Trump’s sometimes ugly wrongful pardons call for constitutional reform of executive authority.

    That all said, I am always open to considering proposals for all sorts of clemency reforms, and so I remain eager to hear your accounting of what constitutes abuses of the pardon power and what should be done in response. Also, as Margaret Love usefully highlights, we could take pressure off the clemency power with some needed federal statutory reforms providing a law-based way to expunge past convictions and their collateral consequences:

    Whenever you set forthe a proposal for clemency reform, I would encourage a new post, as this comment thread is already clumsy for these purposes.