President Donald Trump’s pardons to date have added up to little more than unconscionable releases and unwarranted restorations. He has pardoned civil rights and human rights violators, including law enforcement officers who grossly abused their power and the murderers of innocent Iraqi children. He has pardoned fraudsters like former media mogul Conrad Black, whose reprieve came after he wrote a book titled "Donald J. Trump: A President Like No Other."
In the hands of a responsible president, the power to pardon allows for justice. But Trump treats the power as though it exists for his personal benefit.
From former Maricopa County, Arizona, Sheriff Joe Arpaio, who ran an outdoor "tent city" jail where summer temperatures reached 120 degrees, to Republican former Rep. Duncan Hunter, who used campaign funds to indulge in extramarital affairs, many of Trump's pardons seem animated by anything but a desire to do justice. And that is before we get to members of his inner circle.
Trump has issued a number of pardons that are transparent efforts to help friends. That's not unheard of, but what differentiates Trump from other presidents are the recent pardons of people involved in the investigation of his campaign during the 2016 election. If he continues to pardon those close to him and in his inner political circle, particularly in light of his reported dangling of pardons to potential witnesses during the Mueller investigation, legitimate questions about whether the pardons are legal deserve full consideration.
The pardons themselves, no matter how odious, fall within the president's broad plenary power. The Constitution restricts the pardon power only by explicitly refusing the president the ability to pardon impeachments and arguably by not allowing self-pardons. Once granted, Trump's pardons, like those of other presidents, will remain in force and can't be revoked by a future president, the courts or any other mechanism.
The pardon power is important. It allows for mercy when the criminal justice system doesn't provide it. In the hands of a responsible president, the power to pardon allows for justice.
Many of Trump's pardons seem animated by anything but a desire to do justice
But Trump treats the power as though it exists for his personal benefit. He of course, pardoned Charles Kushner, his daughter Ivanka’s father-in-law. He has used the pardon to curry favor with celebrities. He commuted former Illinois governor (and former contestant on Trump's reality show The Celebrity Apprentice) Rod Blagojevich’s sentence. Trump had characterized Blagojevich’s sentence as unfair, despite the former governor’s involvement in a bribery scandal over naming a successor to President Barack Obama’s Senate seat, as if to say that corruption by elected officials shouldn’t be punished too harshly.
Given reports that Trump’s team dangled pardons like candy in front of witnesses who had drawn the scrutiny of the Mueller investigation, it’s impossible to avoid questioning whether Trump is delivering pardons as recompense for continued loyalty.
Paul Manafort and Roger Stone received pardons, as did lower-level figures in the investigation into whether Trump's campaign illegally accepted help from Russia during the 2016 election. George Papadopoulos, whom Trump once characterized as a "coffee boy," and Alex van der Zwaan, the son-in-law of a Russian billionaire, now have pardons. Only Michael Cohen, the president's former lawyer, and Rick Gates, Manafort's deputy, both of whom cooperated with investigators, remain pardonless.
While the pardons can't be undone, there are other possibilities if they resulted from conduct that crosses the line from poor judgment to abuse of presidential authority. Granting a pardon as part of a corrupt deal could implicate the federal bribery statute, 18 USC 201.
Our criminal justice system isn't a system of mob rule. We don't lock people up just because they're unpopular or because they've done things we don't like — even really bad things. The point of having a rule-of-law system is that criminal prosecutions are based upon statutes that establish crimes. Every crime has a set of elements that the government must prove to establish that the crime has been committed. Those elements include specific acts a defendant must engage in to commit the crime, a state of mind or intent and surrounding circumstances (for instance, that a defendant occupied a certain elected position or tried to bribe someone who was in one).
We don't lock people up just because they're unpopular or because they've done things we don't like — even really bad things.
Prosecutors must have enough admissible evidence to prove each element, to the satisfaction of a jury, beyond a reasonable doubt. We don't convict people in the court of public opinion. If Trump's rallies, with their chants of "lock her up," have taught us anything, it's how important adherence to our rule-of-law system is if we are to avoid diminishing a criminal justice system that people in power could wield as a tool against their enemies.
So we shouldn't prejudge cases without knowledge of the evidence. This is what's at stake when we discuss the theoretical prosecution of a former president or those associated with him. Still, it's valuable to understand the law that is a barometer for determining whether there could be legal consequences for corruptly granting pardons.
The bribery statute is a complicated, multi-option tool for prosecutors. The crime can be committed in a number of different ways. Most important for this purpose, it occurs when a person, "directly or indirectly, corruptly gives, offers or promises anything of value" to a public official with the intent to "influence any official act." Bribery is also committed when an elected official, "directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for ... being influenced in the performance of any official act."
So if a public official procured the silence of an associate asked to testify about the official's misconduct in exchange for the promise of a future pardon, both could have violated the bribery statute. And as with other crimes, people who are accomplices or co-conspirators of people offering or seeking bribes could also be liable.
A number of technical legal issues are involved, and as ever with the Trump administration, they may prove to be novel because Trump so often acts in an unprecedented manner. But based on both this bribery part of the statute and a subsequent section carrying lesser penalties, referred to as the gratuity provision, if evidence surfaces that pardons were granted to people who followed through on promises to refuse cooperation with the Mueller investigation, there should be a full-blown investigation.
In short, if a pardon resulted from a corrupt deal, the participants should find themselves subject to serious scrutiny.
Bribes, especially involving a sitting president, are a serious matter. Presidents must not be able to insulate themselves from accountability for criminal conduct with the promise of a pardon. The legal terrain is straightforward. If prosecutors develop evidence that establishes that a pardon, like those granted to Manafort or Stone, was an exchange, in essence a reward, for silence, prosecution would be warranted. The same would hold true for any pardon that was procured with a bribe.
Federal prosecutors are required to consider not only whether they can prosecute a case but also whether they should. The principles of federal prosecution explicitly require prosecutors to review criteria to determine whether a substantial federal interest is served by prosecution. After the excesses of the Nixon administration and the authorization of torture during George W. Bush's tenure, subsequent administrations decided to forgo prosecutions in favor of moving the country forward.
That's one of the reasons President-elect Joe Biden's pick for attorney general is so critical. The end of the Trump presidency will require accountability for personal and official misconduct by the president and those around him. Accountability can take many forms. Criminal investigations are one of them.
The next attorney general will need the expertise and judgment to evaluate the evidence and make the call in close cases (which matters like this tend to be) but will also need the integrity and standing to make subjective determinations about whether cases should be prosecuted.
Trump, in pursuing his own interests, has done enormous damage to the public's confidence in the rule of law. It will be up to the next attorney general to restore it. Evaluating Trump's self-interested pardons will be an important place to start.