The Memo: Trump flexes power of pardon

President Trump’s use of the presidential power of the pardon is under scrutiny once again, after he announced on Thursday he would erase the conviction of conservative commentator Dinesh D’Souza.

The decision for D’Souza came on top of recent pardons for the late heavyweight boxing champion Jack Johnson as well as Lewis “Scooter” Libby, a former chief of staff to Vice President Dick Cheney during the George W. Bush administration. 

D’Souza had pleaded guilty to making illegal campaign contributions, though he claimed that he had been the victim of a politically-motivated prosecution by the Obama-era Department of Justice (DOJ). The judge at his September 2014 sentencing hearing memorably described his claims as “all hat, no cattle.”

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In addition to the D’Souza and Libby pardons, Trump pardoned another staunch conservative, Joe Arpaio, the former sheriff of Maricopa County, Ariz., in August 2017. 

Arpaio, known for his extremely hard line on immigration issues, had been convicted of criminal contempt of court for ignoring a judge’s orders to stop detaining migrants who were not suspected of a crime.

The political nature of some of Trump’s pardons disquiets his critics — especially when set against the backdrop of his jabs at the Department of Justice (DOJ), FBI and special counsel Robert Mueller.

“It makes us increasingly worried,” said Lisa Gilbert of Public Citizen, a not-for-profit watchdog group. “Trump’s feeling that people who say the right things or show some kind of loyalty or play on his team should be pardoned is completely antithetical to how our justice system works.”

Grant Reeher, a professor of political science at Syracuse University, also asserted that, compared to other recent presidents, Trump’s pardons appear “more politically oriented. He is focusing on people whose political actions are consistent with his own, in that they have been advancing points of view that he shares, or working toward his goals.”

Defenders of the president argue that he is not unusual in this regard. One of the most controversial pardons issued by President Clinton benefited Marc Rich, a fugitive financier whose ex-wife, Denise Rich, was a major fundraiser for the Democratic Party.

Trump backers also note that, when asked about the pardon of D’Souza by reporters on Thursday, the president indicated he had also been mulling pardons for businesswoman Martha Stewart and Rod Blagojevich, the former governor of Illinois.

Stewart is not overtly political and Blagojevich is a Democrat.

“I think he is trying to use the pardon power to right wrongs that he sees,” said Matt Mackowiak, a Republican strategist. “The fact that he is seriously looking at Blagojevich and Martha Stewart is a sign that he is not focused exclusively on partisan background.”

The other question that has dogged Trump’s pardons is whether he is seeking to send a signal to erstwhile aides who are now feeling the heat from Mueller’s investigation into allegations of collusion with Russia.

One theory commonplace in liberal circles is that Trump is displaying his willingness to issue pardons so that people who might otherwise feel pressure to cut a deal and cooperate with Mueller might be less inclined to do so.

There is, however, no hard evidence to support that theory.

Observers across the political spectrum, however, did raise the issue of whether Trump might have a bias in favor of celebrities, or celebrity-backed causes, over more anonymous figures.

The Jack Johnson pardon was prominently backed by actor and director Sylvester Stallone.

Trump told reporters on Thursday that he did not know D’Souza personally but “I read the papers, I see him on television.”

The pardon of D’Souza also came the day after Trump had received an Oval Office visit from Kim Kardashian. In additional to advocating for the broader cause of prison reform, Kardashian is seeking a pardon for Alice Marie Johnson, a 63-year-old woman serving a life sentence for drug offenses. 

“The narrative may build that he’s only focused on famous people,” Mackowiak said. “Often, famous people have the best legal defense money can buy and others don’t have that opportunity.”

The GOP strategist added that he would encourage Trump to be deliberative in how he approaches the pardon process “so that people who don’t have a famous friend or a famous family member who can get into the Oval Office can still get considered.”

White House Deputy Press Secretary Hogan Gidley pushed back on suggestions that the president was mostly focused on celebrity pardons when he spoke to reporters on board Air Force One on Thursday. 

“Look, there are plenty of people the president is looking at right now under the pardon process,” Gidley said.

Still, the fact that Trump had tended to issue pardons without going through the usual process of review at the DOJ concerns some skeptics.

While they acknowledge that a president has expansive power to pardon, they worry about Trump’s propensity to flout norms.

“There is a process set up for pardoning people and he is ignoring it,” Gilbert said. “I am not saying he is running afoul of the Constitution. But this is off-the-cuff, and he is doing things that a DOJ that he is simultaneously attacking might not be that into.”

Meanwhile, the reverberations from the decision to pardon D’Souza will continue to be felt.

Late Thursday, the lead prosecutor in his case, Carrie H. Cohen, released a statement plainly critical of Trump’s decision.

“D’Souza pled guilty because he was guilty,” Cohen said.

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.