You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

The Problem With Trump’s Pardons

How the president is using his executive power to protect himself.

Win McNamee/Getty Images

President Donald Trump is in a forgiving mood these days. He kicked off his Thursday morning by issuing a full pardon to Dinesh D’Souza, a conservative pundit who pleaded guilty to federal campaign-finance crimes in 2014. In a statement, the White House said that D’Souza had been “a victim of selective prosecution for violations of campaign finance laws.” D’Souza took a victory lap on Twitter with a jab at Preet Bharara, the former federal prosecutor who oversaw his case:

Why did this case, out of the hundreds of thousands that churn through the federal criminal-justice system, merit the president’s personal intervention? Trump told reporters on Air Force One that he “always felt” D’Souza had been “very unfairly treated” by the system. “And a lot of people did, a lot of people did,” he explained. “What should have been a quick minor fine, like everybody else with the election stuff… What they did to him was horrible.”

Trump’s interest in prosecutorial overreach would be welcome if it were genuine. But the people he’s selected for mercy so far point toward a corrupt ulterior motive: signaling to aides and associates that he’ll pardon them as long as they don’t cooperate with the Russia investigation. Even those closest to him concede the optics. “If you’re looking at it that way, he already sent that message with Scooter Libby,” Rudy Giuliani, Trump’s latest loose-lipped lawyer, told the Huffington Post on Thursday.

Libby, who was once Vice President Dick Cheney’s chief of staff, received a pardon last month from Trump that wiped away his conviction for perjury and obstruction of justice. The conviction came about as part of the federal investigation into the Bush administration’s leak of CIA operative Valerie Plame’s identity to reporters. It was the last high-profile Justice Department probe to entangle the White House, making the symbolism of Trump’s act unmistakable.

It’s common to lament the politicization of the pardon under modern presidents, but that’s a poor framework to evaluate executive mercy. The problem isn’t that Trump is using pardons to benefit his political allies, but that he’s using them largely to benefit himself.

The Founding Fathers designed the pardon as a tool for presidents to resolve political issues and maintain order. George Washington used it to spare Whiskey Rebellion participants from further punishment. Andrew Johnson and Ulysses Grant forgave all but the uppermost ranks of Confederate traitors. Jimmy Carter issued an open-ended pardon to draft-dodgers who evaded service in the Vietnam War. Whether a pardon is politically controversial is not always a good measure of its justness.

Other pardons were far less noble in form or effect. Foremost among them is Gerald Ford’s pardon of Richard Nixon, which Ford cast as a necessary step to help the nation move past the Watergate crisis. It also crystallized the pardon as a tool for executive-branch officials to evade responsibility for crimes. George H. W. Bush pardoned former Secretary of Defense Caspar Weinberger and five other Reagan officials in 1993 before they could face trial for their roles in the Iran-Contra scandal. Harvard law professor Alan Dershowitz, a prominent critic of the Russia investigation, recently told me that Bush’s actions set a precedent for Trump to issue similar pardons related to the Russia inquiry without committing obstruction of justice.

Trump isn’t the first president who used pardons like this, though. Bill Clinton’s last-minute spree of executive clemency in 2001 erased his half-brother Roger Clinton’s cocaine-distribution conviction, spared fugitive hedge-fund manager Marc Rich from tax-evasion charges, and pardoned two men who paid Hillary Clinton’s brother $400,000 to represent them in seeking clemency. The Justice Department eventually tasked future FBI Director James Comey to investigate Clinton’s pardons for wrongdoing, though he declined to bring criminal charges.

Trump has used his power of mercy six times so far in his 16-month tenure. He began last August by pardoning Joe Arpaio, the former Arizona sheriff who had been convicted of contempt of court for ignoring a judge’s order to stop racially profiling Hispanic motorists. Then came a pardon for Kristian Saucier, a former Navy sailor who was convicted for taking photographs of classified sections of a submarine. Trump had used Saucier’s case as a political cudgel against Hillary Clinton during the campaign.

Only two of Trump’s acts of clemency lacked overt political symbolism so far: a sentence commutation for Iowa meatpacking executive Sholom Rubashkin that received bipartisan support, and a long-overdue posthumous pardon to clear the name of black heavyweight boxer Jack Johnson. As with the more partisan cases, Trump relied on personal appeals instead of following his modern predecessors in heeding recommendations from the Justice Department’s Office of the Pardon Attorney.

“He has established a pattern of granting clemency to people who have not had their applications sent through the usual review process offered by the Department of Justice,”  Jeffrey Crouch, an American University law professor who studies presidential pardons, told me. While this manner may be quicker, Crouch added, it “risks bearing the brunt of any blowback from a clemency recipient who reoffends, or from a mistake that a more detailed vetting would have caught.”

Trump’s unorthodox approach also means he’s been issuing pardons more quickly than other recent presidents. “Bill Clinton waited a year and ten months to use clemency, and George W. Bush and Barack Obama waited about two years each before acting,” Crouch noted.

All of this makes D’Souza a fitting choice for a president who has so far used pardons to grant political favors. In the 1980s and 1990s, Republicans touted D’Souza as a best-selling author and an emerging intellectual. Now he’s better known for producing intellectually lazy documentaries about Democrats, his habit of making racist remarks about Obama, and most recently for mocking school-shooting survivors for their political activism. These controversies aren’t necessarily disqualifying for a potential clemency recipient, but in Trump’s case they seem to have been qualifications.