Trump, Justice, and (What Used to Be) the American Way

The post-impeachment president’s pardon spree and his interference with the judiciary.
by Kim Wehle
February 19, 2020
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Goodbye to all that (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

Since his acquittal on two articles of impeachment by a Republican-controlled Senate, President Donald Trump has plainly realized that there are no meaningful checks on his actions anymore. One political party is entirely in his thrall. The other has failed to take him down. There are no longer any figures of stature in his Cabinet or on his White House staff who might challenge his thinking, let alone his actions. He possesses immense national, international, and personal power. The fact that he intends to use it continues—surprisingly—to surprise people.

On this week’s menu of norm-smashing? The politicization of the Constitution’s pardon power and an attack on the independence and integrity of the federal judge tasked with sentencing Roger Stone. Recall that, last week, Stone was blessed with an unprecedented intervention by the Department of Justice in the government’s sentencing recommendation, prompting four career prosecutors to resign from the case (which—let’s not forget—was brought by Special Counsel Robert Mueller because of perceived conflicts of interest on the part of main Justice).

This is all to be expected. Trump has never made any secret of his predilections for rule-breaking, irrationality, and revenge. The difference now is that he knows for certain that the constitutional system of separated powers will not function to slow him down—let alone stop him.

Trump on Tuesday pardoned or commuted the sentences of eleven people, including:

  • corrupt former Illinois governor Rod Blagojevich, who, like Trump, was impeached after a phone call—he was caught on audio tape attempting to sell Barack Obama’s former Senate seat—and appeared on Trump’s show The Apprentice during the window between his federal indictment and the start of the trial that sent him to prison;
  • former New York City police commissioner Bernie Kerik, who lied to the FBI and cheated on his taxes;
  • a pro-Trump Fox News pundit who was in prison for luxury-car theft;
  • Eddie DeBartolo Jr., a former owner of the San Francisco 49ers;
  • 1980s junk-bonds king Michael Milken, who bilked millions from law-abiding citizens in an insider-trading scheme, and whose pardon was recommended to Trump, according to the New York Times, by “Nelson Peltz, a billionaire investor who hosted a $10 million fund-raiser for the president’s 2020 campaign on Saturday”; and
  • Paul Pogue, a construction company owner who stiffed the IRS of nearly a half million in taxes but, as the Daily Beast reports, was granted a full pardon by the president after over $200,000 in contributions began flowing from his family into the Trump Victory Committee in August 2019.

Prior to the Senate acquittal, there were rumblings that Trump might one day pardon his convicted buddies in the twilight of his presidency—not unlike presidents before him, who used such controversial maneuvers sparingly and saved them for when they were almost out the White House door. After yesterday, though, the pardon power will operate as an openly political tool for presidents to dangle and use during their terms for purposes of shaping and motivating political loyalty.

Keep in mind that the pardon power was meant to function as a mechanism for mercy and justice—a check on the potential excesses of a federal judiciary whose judges serve for life. Alexander Hamilton explained in Federalist No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

To be sure, the Constitution gives presidents “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” But in 1974, the Supreme Court in Schick v. Reed underscored that “considerations of public policy and humanitarian impulses support an interpretation of that power . . . which does not otherwise offend the Constitution.” Like all parts of the Constitution, the power of elected officials is meant to be checked by the other branches of government and by other provisions of the Constitution itself—not to mention the norms and values that gave rise to the American republic in the first place. Now that Trump has normalized the use of pardons as political power, we can expect him to use them more often—and in unprecedented ways.

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Item two on Tuesday’s menu of constitutional offenses was Trump’s attempt to intimidate the federal judge who is poised to impose a sentence on Roger Stone, Trump’s pal convicted by a jury on seven counts for crimes committed in connection with Trump’s 2016 campaign for president. After the prosecutors withdrew from the case last week, the jury’s foreperson wrote on Facebook: “It pains me to see the DOJ now interfere with the hard work of the prosecutors [who] acted with the utmost intelligence, integrity, and respect for our system of justice.”

Stone’s lawyers reacted with a request for a new trial due to alleged juror bias. Trump then tweeted:

Any judge in the country would shudder at the notion that the president of the United States would weigh in publicly on the exercise of the judiciary’s independent discretion to impose a sentence on a convicted criminal—particularly one who is in jail as a result of his relationship with the president. Indeed, a group of over 1,000 federal judges whose mission is to promote a fair and impartial judiciary announced on Tuesday an emergency meeting of its officers to address the crisis prompted by main Justice’s interference in the Stone case. Trump tweeted a retort to that effort as well:

Ugh.

It is no exaggeration to say that we are in a dark and dangerous phase of American democracy—one that challenges our system of justice and many of the norms and protections we have long taken for granted. Like a troubled alcoholic, America may need to hit rock bottom before we can begin the long process of becoming a nation of integrity again. Then again, not every alcoholic is so lucky.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is currently a visiting professor and fellow in law and government at American University’s Washington College of Law. She is also a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins).