Among the many alarms being sounded about Trump’s hypothetical second administration is his potential abuse of the pardon power. Last week, The New York Times detailed the former president’s January 2021 commutation for Jonathan Braun, an offender who received clemency along with many other convicted felons on Trump’s last day in office.
Clemency encompasses both pardons, which amount to forgiveness for one’s crime, and commutations, or a reduction in the length of a sentence of imprisonment. Trump doled out plenty of both. The president alone has the power to grant pardons, a dramatic show of forgiveness in the interest of the public good. This solemn responsibility was absolutely not designed to reward allies or advance personal agendas. Abusing this power is an affront to the rule of law. Worse, it is an invitation to violence. In the hands of a Trump uninhibited by any possibility of running for re-election, the pardon power could create nightmare scenarios.
While other presidents have issued questionable pardons in the past, such as President Gerald Ford’s pardon of former President Richard Nixon and President Bill Clinton’s pardon of donor Marc Rich, none subverted the process like Trump. In contrast to Department of Justice norms, Trump sidestepped its Office of the Pardon Attorney and put the clemency portfolio into the hands of Jared Kushner, his son-in-law and senior adviser at the White House. One of Trump’s attorneys general, William Barr, acknowledged that “there were pardons being given without any vetting by the department.” Among those receiving pardons was Kushner’s father, Charles Kushner. The elder Kushner had been convicted for crimes that included extorting his own brother-in-law by hiring a prostitute to lure him into a sexual encounter, video recording the encounter and then sending the film to his wife, Charles Kushner’s own sister.
The Office of the Pardon Attorney ensures that clemency is applied with uniformity by applying certain guidelines, among them an expression of remorse and a consultation with the prosecutors who handled the case. Pardons require a waiting period of five years following completion of the offender’s sentence. For commutation of a sentence, the Office of the Pardon Attorney will consider “equitable factors,” such as a disparity or undue severity of the sentence, old age, critical illness, demonstrated rehabilitation while in custody or exigent circumstances unforeseen by the court at the time of sentencing.
Braun hardly fit the mold. He had fled the country while under investigation. Braun has a long history of violent threats, including telling a rabbi, “I am going to make you bleed.” After he was extradited and convicted, he served only two-and-a-half years of a 10-year sentence for drug trafficking before Trump forgave his crimes. And he has since allegedly returned to some of his old ways. The New York attorney general has alleged Braun “continues to commit usury.” (In response, Braun told the Times: “I never hurt anybody, never did anything wrong to anybody.”) In order to secure his pardon, Braun hired Alan Dershowitz, who served as an impeachment attorney for Trump, and made use of connections with Kushner to secure his release.
Braun’s award of clemency suggests a two-tiered system of justice, one for friends and family, and another for all the others.
When abuse of power is treated with leniency, it risks becoming normalized. Trump signaled that his use of the pardon power would be different from that of his predecessors when he issued his very first pardon, to Arizona Sheriff Joe Arpaio, in 2017. Arpaio was found in contempt of court after he violated an order to stop engaging in conduct that violated the Constitution. Arpaio had ordered his deputies to racially profile Latino drivers and detain undocumented persons who had committed no crimes. Arpaio’s pardon upended the U.S. district court’s order and flouted the constitutional provisions it was enforcing. But it thrilled immigration hard-liners in Trump’s base.
Over the next several years Trump continued to reward corrupt public officials. Among those receiving pardons or commutations were former Illinois Gov. Rod Blagojevich, former Detroit Mayor Kwame Kilpatrick and four members of Congress, a veritable who’s who of the corrupt and famous. For some offenders, such as Kilpatrick and ex-White House adviser Steve Bannon, Trump granted clemency to the former public officials without granting it to their co-defendants, even though they had been charged in the same schemes.
Also among Trump’s clemency grantees were his own political allies: Roger Stone, Michael Flynn, Paul Manafort and others convicted by special counsel Robert Mueller during the investigation into connections between Russia and the Trump campaign.
These past grants of clemency were concerning, but the consequences of his pardon abuse could get much worse. Trump has said if he returns to office, he will consider pardoning the defendants convicted for offenses relating to the Jan. 6 attack on the U.S. Capitol. Even hinting at pardons for the Capitol rioters undermines the rule of law that landed them in prison. Pardoning seditionists who were convicted of using violence to oppose the authority of the U.S. government would be a dangerous blow to our national security. Excusing their conduct would embolden other extremist supporters who might be inclined to engage in violence to achieve political ends.
The president’s pardon power is not quite absolute — it may not be used in cases of impeachment, and it remains unclear whether a president may pardon himself. But this authority is otherwise enormous, and presumes a president who will exercise it in harmony with his duty to “take care that the laws be faithfully executed.” If there is a second Trump administration, we may hear a discord never imagined by the founders.