For a Defeated President, Pardons as an Expression of Grievance

President Donald Trump and first lady Melania Trump depart Air Force One after arriving in West Palm Beach, Fla., Dec. 23, 2020. (Erin Scott/The New York Times)

The statement announcing the latest raft of presidential pardons was officially attributed to the White House press secretary, but it bristled with President Donald Trump’s own deep-seated grievances.

His friend and longtime adviser Roger Stone, the statement said, “was treated very unfairly” by prosecutors. His former campaign chairman Paul Manafort “is one of the most prominent victims of what has been revealed to be perhaps the greatest witch hunt in American history.”

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In complaining about “prosecutorial misconduct,” though, Trump seemed to be talking as much about himself as his allies. In the flurry of 49 pardons and commutations issued this week, he granted clemency to a host of convicted liars, crooked politicians and child-killing war criminals, but the throughline was a president who considers himself a victim of law enforcement and was using his power to strike back.

Never mind that Trump presents himself as a champion of “law and order.” He has been at war with the criminal justice system, at least when it has come to himself and his friends. And so in these final days in office, he is using the one all-but-absolute power vested in the presidency to rewrite the reality of his tenure by trying to discredit investigations into him and his compatriots and even absolving others he seems to identify with because of his own encounters with authorities.

In some ways, of course, this is the concession that Trump has otherwise refused to issue, an unspoken acknowledgment that he really did lose the Nov. 3 election. These are the kinds of clemency actions a president would take only shortly before leaving office.

But it also represents a final, angry exertion of power by a president who is losing his ability to shape events with each passing day, a statement of relevance even as Trump confronts the end of his dominance over the nation’s capital.

In the seven weeks since the election, he has screamed over and over that he actually won only to be dismissed by essentially every court and election authority that has considered his false assertions, which were also rejected by his own attorney general.

He demanded that Congress rewrite the annual military spending bill to preserve the names of bases honoring Confederate generals only to have both parties ignore him and pass the measure overwhelmingly, setting up the first veto override of his presidency.

He likewise is trying to belatedly make himself a player in the coronavirus relief package he all but ignored until after it had already passed both houses on large bipartisan votes with the support of his own administration and Republican leaders. In doing so, he demonstrated that he could still cause chaos in the last stretch of his tenure at the expense of Americans who may now go without aid this Christmas season, even if it was unclear that he would be able to impose his will on the final outcome.

As power inexorably slips from his grasp, the defeated president finds his pardon authority to be the one weapon he can deploy without any checks. It is the most kingly of powers conferred on a president by the Constitution, one that is entirely up to his discretion, requires no confirmation by Congress or the courts, and cannot be overturned.

Other presidents have been criticized for using it for political allies, particularly George Bush, who spared a half-dozen colleagues in the Iran-Contra investigation, and Bill Clinton, who granted clemency to his own half brother, a former business partner and the former husband of a major donor.

But few if any have used their pardon power to attack the system in quite the way that Trump has.

Under Justice Department guidelines, pardons are normally not even considered until five years after an applicant completes a sentence and are “granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct.”

But a president does not have to follow those guidelines, and Trump, famously dismissive or ignorant of norms, has largely dispensed with the Justice Department process for vetting clemency requests, treating them in many cases not as acts of forgiveness but assertions of vindication.

In addition to Stone and Manafort, the president this week pardoned three other figures convicted of lying in the Russia investigation led by special counsel Robert Mueller. They came on top of a similar pardon last month for Michael Flynn, Trump’s national security adviser, and were all part of a broader effort to erase what he has called a “hoax” inquiry.

Critics accused Trump of using his power to obstruct justice by rewarding allies who impeded the investigation against him.

“The pardons from this President are what you would expect to get if you gave the pardon power to a mob boss,” Andrew Weissmann, a top lieutenant to Mueller, wrote on Twitter.

Some framers of the Constitution worried about just such a scenario. George Mason argued that a president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

Trump’s critics have suggested his pardons could be tantamount to obstruction of justice, noting that Trump regularly dangled the prospect of pardons at the same time Manafort, for example, was being pressured to cooperate with investigators.

At the confirmation hearing in 2019 for William Barr, whose last day as attorney general was Wednesday, Sen. Patrick J. Leahy, D-Vt., quizzed him about that.

“Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” Leahy asked.

“No,” Barr replied. “That would be a crime.”

Some Democrats have sought to restrain Trump’s pardon power. Rep. Steve Cohen of Tennessee introduced legislation last year to prohibit the president from pardoning himself, his family, members of his administration or campaign employees. Sen. Christopher S. Murphy of Connecticut even called for removing the pardon power from the Constitution.

In a new book, Robert F. Bauer, a former White House counsel to President Barack Obama and a top adviser to President-elect Joe Biden, and Jack L. Goldsmith, a former senior Justice Department lawyer in President George W. Bush’s administration, proposed amending the bribery statute to make it illegal to use pardons to bribe witnesses or obstruct justice.

Manafort and Stone were not the only beneficiaries of Trump’s presidential forgiveness to have personal ties to him or his friends. He pardoned Charles Kushner, the father of Jared Kushner, Trump’s son-in-law, wiping away a conviction that had long gnawed at the family. Charles Kushner pleaded guilty to tax evasion, illegal campaign donations and witness tampering and spent more than a year in prison.

The elder Kushner set up his brother-in-law, who was cooperating with the investigation, by hiring a prostitute to seduce him and then sending a tape of the act to his wife, Charles Kushner’s own sister. He was prosecuted by Chris Christie, a U.S. attorney at the time and later the governor of New Jersey. Christie, a friend of Trump’s, has previously called Kushner’s actions “loathsome” and “disgusting” but declined to comment on the pardon this week.

Trump, who promised in his 2016 campaign to “drain the swamp,” also pardoned four former Republican congressmen convicted of corruption, including the first House member to endorse him for president, Chris Collins, who called his son with an insider trading stock tip from the White House lawn.

The president pardoned a former campaign manager and nephew by marriage of Sen. Rand Paul, R-Ky., a key ally. He pardoned four security contractors from Blackwater, the firm founded by Erik Prince, the brother of his education secretary, Betsy DeVos.

Trump makes little effort to hide the fact that his pardons go to people with connections, even listing in his announcements who recommended them. A man pardoned for cybercrimes Wednesday was supported by Isaac Perlmutter, the Marvel Entertainment chairman and a friend of Trump’s from his Mar-a-Lago club in Florida.

Seven drug convicts receiving clemency this week were recommended by Alice Marie Johnson, a previous pardon recipient originally brought to Trump’s attention by Kim Kardashian West. Five clemency recipients had the support of Pam Bondi, who served as a lawyer for Trump during his Senate impeachment trial this year.

Two were associates of Conrad M. Black, the former media baron and friend of Trump’s who himself received a pardon for fraud and obstruction of justice convictions in 2019, a year after writing a flattering book about the president.

Aside from the Cabinet connection, the four Blackwater contractors were championed by Pete Hegseth, a Fox News host and outspoken Trump supporter who has been influential with the president in the past.

The four contractors were convicted after what investigators determined was an unprovoked attack that killed 17 Iraqi civilians in 2007, including unarmed women and children. The White House version of what happened glossed over the grisly events.

“When the convoy attempted to establish a blockade outside the ‘Green Zone,’ the situation turned violent, which resulted in the unfortunate deaths and injuries of Iraqi civilians,” the pardon statement said.

Paul R. Dickinson Jr., a lawyer who represented five Iraqi families in a lawsuit, offered a more gruesome description in a series of outraged Twitter messages after the pardons, describing among other things how Ali Kinani, a 9-year-old boy, was shot in the head while traveling in a car.

“His father opened the door after seeing blood on the window — and Ali’s brain fell out onto the pavement between his father’s feet,” Dickinson wrote.

In the history of pardons, it would be hard to find parallels for that. Presidents typically avoid pardoning unrecalcitrant child killers, if for no other reason than it would normally be seen as politically radioactive.

But Trump has made a policy of defying conventional wisdom and redefining what he considers to be justice. He has argued that he is righting the wrongs of a law enforcement system that he believes has wronged him, too. And he has even discussed pardoning members of his family or himself.

With less than four weeks left in office, he may yet have more to say on the matter.

This article originally appeared in The New York Times.

© 2020 The New York Times Company

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