This Steaming Pile of Filthy Pardons Stinks Just Like Trump
Almond Ngan / Getty
Donald Trump's wave of pardons from his friends, accomplices and soon his relatives stinks of putrefaction. It is not just the stench of a lame duck administration - after all, the presidents abused the power of pardon beforehand - but of a long-dead duck teeming with maggots, entrails that stain the carpet of the Oval Office, parasites that devour the corpse.
In other words, Trump found his perfect match.
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From his first pardon on vicious, racist, fascist criminal Joe Arpaio, to the one he handed out Wednesday to Paul Manafort, Roger Stone and Charles Kushner, to his last, which is believed to be a preventive one from Donald J. Trump himself, he has shown a total disregard for the original constitutional purpose of the pardon power (so much for "originalism") and a perverse pleasure in wielding one of the rare unlimited powers of the presidency while owning the libraries.
Trump apologizes to Charles Kushner, former campaign manager Paul Manafort, Roger Stone
Originally, the power of pardons rested with the kings and queens of Europe, who were seen as the sovereign and ultimate source of national law. As Trump has portrayed himself over these long four years, the monarch is not accountable to the rule of law because the monarch is the basis of the law itself.
After all, Trump has found a presidential power that matches his authoritarian preferences: unreserved, unaccountable, descended from kings.
The pardon also had a legal purpose, which is why the authors retained it when creating our constitution. As Portia Shylock cynically observed in The Merchant of Venice, the law is incomplete without mercy. Or in Alexander Hamilton's words: "Without easy access to exceptions in favor of unfortunate guilt, justice would look too bloody and cruel." While pardons were, in part, exercises of quasi-monarchical power, they were also used to correct the inevitable injustices caused by a system of crime and punishment.
Because of this, the presidents have in the past commuted criminal convictions that followed the letter of the law but did not take into account the extenuating circumstances. For this reason, as stated on the editorial page of the New York Times, President-elect Biden would do well to undo some of the mass imprisonment he helped shape in the 1990s. Kim Kardashian West, of all people, has emerged as the leading lawyer for those wrongly convicted or wrongly convicted.
But that's not how Trump's pardons worked. He has issued the fewest presidential pardons in the last century. And according to Harvard Law Professor Jack Goldsmith, over 90 percent of them went to people with personal or political ties to Trump. President Obama pardoned over 1,900 people, mostly low-level drug criminals, who were trapped in an overly rigid judicial system. President Trump pardoned or commuted 97, mostly his friends.
In other words, Trump has managed to over-authorize one of the most authoritarian constitutional powers in America. He managed to pollute that himself. Truly amazing.
Oh but it gets better Generally, pardons are reviewed by the Department of Justice, which weighs various factors such as fairness, equity, deterrence, etc. However, according to Professor Goldsmith, most of Trump's pardons were not even recommended by the DOJ. It's just Trump.
Like so much else - the balance of power between the branches, the executive branch's responsibility to provide reasons for its actions, even the rule of law - Trump has managed to turn the pardon power into a bare vehicle of patronage and power. Right now he's just a mob boss in an oversized suit.
By way of comparison, it should be remembered that other presidents have already issued dubious pardons. Firstly, President Ford's blanket pardon for Richard Nixon. President George H.W. Bush's selfish pardon of Caspar Weinberger and others who may have exposed his involvement in Iran-Contra. President Clinton's pardon for his brother Roger, financier Marc Rich, and many others on his very last day in office.
But nothing compares to Trump. Political allies convicted of lying or participating in Russia's meddling in the 2016 elections: Paul Manafort, Michael Flynn, Roger Stone, George Papadopoulos and Alex van der Zwaan. Right-wing Republicans convicted of corruption: Duncan Hunter, Chris Collins and Steve Stockman. Relatives of Trump's inner circle: Charles Kushner and four Blackwater contractors who murdered Iraqi civilians (Blackwater was led by Erik Prince, brother of Education Secretary Betsy DeVos). Right-wing ideologues: Joe Arpaio (who defied a court order to end the detention of people) on suspicion that they might be "illegals" (i.e. Latino), Dinesh D'Souza (campaign fraud), Bernard Kerik (top Policeman who became a perjurer and tax fraud), employee of the Bundy family. Personal friends: Michael Milken, Conrad Black and several medium-sized campaign donors. Seven convicted war criminals.
And, of course, it seems inevitable that Trump would preventively issue general, blanket pardons for his entire family, as is permissible in an 1866 case of pardoning a former Confederate senator and ultimately himself.
Not much can be changed about that. Of course, the right-wing media, from Fox News to the Daily Stormer, are already spinning these selfish pardons as legitimate protection against a supposed left-wing lynch mob, so it is unlikely that the outrage over the pardons will influence the opinion of others.
But let me leave you with a few small breadcrumbs of hope.
First, it is unclear whether a president can forgive himself, and while legal scholars are divided, there are strong reasons to believe that a conservative, originalist Supreme Court would rule that it cannot. Article II, Section 2 of the Constitution states that the President "shall have the power to grant reparations and pardons for crimes against the United States, except in cases of impeachment." According to an analysis by law professor Frank Bowman III, there is no precedent in legal history for someone who pardons himself. The notion contradicts the Framer's desire not to have an American king. It is the foundation of tyranny. These are legally conservative reasons not to allow Trump's unprecedented self-forgiveness.
Second, pardons only affect federal law. In some ways, this whole scam could be a great gift for New York Attorney General Letitia James, who has persecuted the Trump family's many misdeeds under New York State law.
And most enticingly, one of the “catches” of a presidential pardon is removing the protection of the fifth amendment as there is no longer any risk of self-blame. So when a federal or state grand jury summons one of Trump's many pardons, they must speak under oath or risk prosecution for contempt or obstruction.
In other words, there is a slim chance - very slim, but make an expert dream - that Trump is on the wrong side of a criminal investigation, and the very pals he shamelessly released will be forced to either to turn against him or go back to jail. That would be a sweet justice indeed.
Until then, however, there is nothing left but to endure the stench.
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