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President Trump Issues a Series of Controversial Pardons

President Trump Issues a Series of Controversial Pardons

In the past few days, President Trump issued four controversial pardons. The first was to former Illinois Gov. and “Celebrity Apprentice” contestant Rod Blagojevich, who was convicted of attempting to sell Barack Obama’s Senate seat after the 2008 election, among other acts of corruption.[1]

Trump also pardoned junk bond king – turned- cancer research philanthropist Michael Milken, who pleaded guilty to six felony charges, and former New York police commissioner Bernie Kerik, a Giuliani associate, who was convicted of tax fraud and lying to White House officials.[2]

On January 18, 2020, the White House announced that President Trump intends to pardon Eddie DeBartolo Jr., the former owner of the San Francisco 49ers who pleaded guilty to failing to report a felony after former Louisiana governor Edwin Edwards extorted $400,000 from him in exchange for a riverboat casino license.[3]

On February 20, 2020, news broke that President Trump was considering issuing a pardon for Roger Stone, currently scheduled to be sentenced for lying to Congress and witness tampering.[4]

These actions have been controversial. One op-ed in the Washington Post declared: “As one of the lead prosecutors on the Milken case, I am outraged — not at the specific result here but at what the pardon process says about the way justice is served in our country.”[5]

Let’s try to evaluate this from a Constitutional perspective.

Article 2, Section 2 of the United States Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”[6] Presidents have traditionally granted pardons in two situations: near the end of each year as a show of goodwill and forgiveness,[7] and in the final days of an administration, when the President no longer needs political capital and loses little by such pardoning.[8]

Technically, the President’s constitutional power to exercise leniency toward persons who have committed federal crimes can not only be expressed through pardons, but also through executive clemency in the form of commutation of a sentence. According to the Department of Justice, “A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction … To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts.”[9]

The Department of Justice explains that “a pardon” “is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction.”[10] Generally, these technical terms are used interchangeably today.

It is important to emphasize that, due to our structure of Federalism, the President may pardon someone who is accused or convicted of a federal crime, but the President does not have the power to pardon someone convicted of a state offense. Only the chief executive of a state – the Governor – can pardon someone convicted of a state crime.

As early as 1867, in a case involving the pardon of a former Confederate senator, the Supreme Court held that, except in cases of impeachment, “the [President’s pardoning] power is unlimited [and] … extends to every offense known to the law.””[11]

There has only been one Supreme Court case in our nation’s history that dealt with a presidential pardon of a criminal contempt of court offense. In that 1925 case, Ex Parte Grossman, Philip Grossman was ordered to stop selling liquor during prohibition. He ignored the order and was sentenced to one year in prison for violating the National Prohibition Act. Soon afterwards, President Calvin Coolidge pardoned Grossman, reducing his sentence to the payment of a fine. The Court held unanimously that the President did have the power to pardon Grossman for a criminal contempt of court.[12] Chief Justice Taft did caution, “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”[13] Still, the result of the case and its decision placed no limitations on the pardon power.

According to Snopes.com, President Obama commuted the sentences of over 1,700 prisoners — more than any other president in history, and “the clemency grants announced on Obama’s last full day in office set a one-day record.”[14]

President Trump’s first pardon was issued to former Maricopa County Sheriff Joe Arpaio, who had been found guilty of disobeying a court order by continuing to make immigration arrests after he was ordered to stop. U.S. District Judge Susan Ritchie Bolton, who had found Sheriff Joe guilty of criminal contempt, noted after the President’s pardon that although the pardon “does not erase a judgment of conviction, or its underlying legal and factual findings,” it does “release[] the wrongdoer from punishment and restores the offender's civil rights without qualification.”[15]

Putting the political and policy aspects aside, it seems from the traditions of past Presidential pardons and the judicial branch’s acceptance of the practice, that the President has virtually unlimited power to issue federal clemency.  

[2] Id.

[6] U.S. Const. art. II, § 2, cl. 1.

[7] Jack Beermann, “Presidential Power in Transitions,” 83 B.U.L. Rev. 947, (2003).

[10] Id.

[11] Ex parte Garland, 71 U.S. 333, (1867).

[12] Ex parte Grossman, 267 U.S. 87, (1925).

[13] Id.