Trump’s pardons harshly criticized by legal experts

Donald Trump’s final act in office was an eleventh-hour exercise of the pardon power, a presidential prerogative the founders built into the Constitution to let the nation’s top executive deliver mercy upon a select and deserving few.

The latest batch of clemency grants to more than 140 people came shortly after midnight Wednesday and included notable figures like Trump’s former chief strategist Stephen Bannon and rapper Lil Wayne, as well as some lesser-known cases spotlighted by criminal justice advocates.

According to legal experts, Trump’s final gesture in some ways parallels those of recent White House predecessors like George H.W. Bush and Bill Clinton, who also courted controversy by issuing pardons as they left office. Yet Trump’s overall track record on pardons is also emblematic of a norm-shattering approach to the presidency that critics often derided as unscrupulous and self-serving.

The beneficiaries of Trump’s pardon power frequently had a personal connection to the White House, were endorsed by celebrity backers or political allies, or received clemency only after refusing to cooperate with investigators looking into Trump’s potential criminal wrongdoing.

“Trump in many ways exemplified the worst of both worlds,” said Daniel Kobil, a law professor at Capital University. “He ignored most of the ordinary people who are deserving of clemency, yet granted pardons or commutations to those who were powerful, unrepentant, and proud of their criminal actions, such as Roger Stone, Paul Manafort, Michael Flynn and Steve Bannon.”

Bannon is alleged to have scammed hundreds of thousands of donors into contributing to a fundraising campaign purportedly to build a private U.S.-Mexico border wall. He faces charges but his case had not gone to trial when he received the pardon.

Stone, Manafort and Flynn were granted clemency after facing charges for their role in the Russia probe and refusing to fully cooperate with former special counsel Robert Mueller. By contrast, Trump’s former lawyer Michael Cohen and former campaign aide Rick Gates, both of whom cooperated with federal investigators, received no such intervention from Trump.

The Hill interviewed a half-dozen of the nation’s top experts on presidential pardon power about what kind of historical reckoning awaits Trump on this score. Although Trump did not take the unprecedented step of pardoning his children or himself, some experts say Trump’s record will likely be viewed harshly given his pattern of largely ignoring deserving individuals who paid their debt to society, while rewarding the undeserving out of an apparently self-interested motive.

“Trump will go down as the least principled of those who have used the pardon power,” said Mark Osler, a law professor at the University of St. Thomas. “He developed an evaluation process that relied on a small coterie of insiders — some of whom were also paid to promote cases by petitioners. It was a system that invited corruption.”

In terms of the sheer numbers, Trump issued fewer pardons (117) and sentence commutations (89) than some comparable predecessors, including Jimmy Carter, who granted 534 pardons and 29 commutations, according to Justice Department data. Trump is also hardly the only president to grant clemency last-minute.

“Presidential advisers have learned to fear the final days of a term, because departing presidents have often smeared their own legacy,” Harold H. Bruff, an emeritus University of Colorado law professor.

Bruff added that Trump may not go down in history as having pardoned the most infamous offenders, either. “Andrew Johnson’s many pardons of Confederates over his term may still hold the record for infamy by crashing Reconstruction,” he said.

Instead, Trump’s use of the pardon power may be remembered for its unique combination of self-interest and parsimony, and for his frequent bypassing of the lawyers who typically vet clemency petitions.

“In general, and even including today’s batch, Trump has been both notably stingy in his pardon grants and notably prone to using the power for crassly self-interested or political purposes,” said Frank Bowman III, a University of Missouri law professor. “The pardons of Manafort and Flynn are the most obvious examples, along with that of Sheriff Arpaio.”

Arpaio, the controversial former sheriff of Maricopa County, Arizona, received a pardon in August 2017 after being found guilty of racially profiling Latinos and ignoring a federal court order to stop detaining people he suspected of being undocumented immigrants. 

Robert Tsai, a law professor at Boston University, said Trump’s pardons of Arpaio as well as the Blackwater guards who killed civilians in Baghdad are likely to be among the clemency grants that are remembered with particular scorn.

“History will judge more harshly his earlier pardon of law enforcement and military figures who violated people’s human rights,” Tsai said. He added that historians will also not look kindly upon the pardon of Bannon and others who “swindled regular Americans who supported the president.”

The consensus among the legal scholars who spoke to The Hill was that Trump’s exercise of the pardon power was gross deviation from what the Founders intended: a constitutional mechanism to alleviate excessively harsh punishment and promote national unity.

“As with so many things, Trump didn’t much care about the Founders’ vision,” said Bowman, of the University of Missouri. “The pardon power was a personal perk to him. He used it that way until the very end.”