President Trump’s pardon of conservative activist Dinesh D’Souza today caught pretty much everyone off guard. D’Souza – known as the Michael Moore of the conservative movement, though with much less talent and little regard for pesky things like the truth – pleaded guilty to felony charges related to fraud and campaign finance violations in 2014, and was fined and sentenced to community service and probation in an 11th hour deal cut with Obama’s Justice Department.
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In other words, he wasn’t serving hard time in dark cell somewhere. So why the need to pardon him, and why now?
Senator Mark Warner of Virginia has a theory. As the top Democrat on the Senate Intelligence Committee overseeing one of the investigations into Donald Trump over his campaign’s possible collusion with Russia to undermine the 2016 election, he’s had a front row seat to the most serious existential threat facing this president.
He took to Twitter this evening to call the president out for his blatant abuse of power and let him know that his tactics aren’t fooling anyone.
The President’s ad hoc use of the pardon power is concerning enough. But the possibility that he may also be sending a message to witnesses in a criminal investigation into his campaign is extremely dangerous. In the United States of America, no one is above the law.
— Mark Warner (@MarkWarner) May 31, 2018
“The President’s ad hoc use of the pardon power is concerning enough,” his tweet reads. “But the possibility that he may also be sending a message to witnesses in a criminal investigation into his campaign is extremely dangerous. In the United States of America, no one is above the law.”
The list of “witnesses” to which Sen. Warner is referring includes figures like Michael Cohen, Michael Flynn, Paul Manafort, and Rick Gates – all of whom are either under criminal investigation (Cohen); indicted and awaiting trial (Manafort); or have flipped under a plea deal and are cooperating with special counsel Robert Mueller’s investigation.
And the message he’s sending is this: Keep your mouth shut, take whatever punishment you’re given, and you’ll be pardoned.
President Trump has the constitutionally delineated power to pardon criminals and felons convicted of federal crimes, and/or commute their sentences. All presidents do. They can even execute this power without providing any justification, legal or otherwise. They were given that power by the framers of the Constitution in order to quickly right any wrongs that time or circumstances revealed in a particular ruling or sentencing.
Over time, however, presidents of both parties have learned how to politicize the pardon power. Personal friends or associates of a president getting pardoned has never been popular, nor have those that have been issued as ways to symbolize a particular position in larger, ideologically charged issues.
Most presidents, however, traditionally wait until the end of their term to avoid any political blow-back for the more controversial pardons they may issue. President Trump, on the other hand, has no such scruples. He’s treated his power to pardon like his own personal toy, one he’s determined to play with whenever the mood strikes him – or when they can be politically advantageous.
“The Constitution’s framers weren’t naïve,” wrote Jeff Jacoby in the Boston Globe. “They understood the obvious dangers in giving presidents the power to prevent or short-circuit prosecutions. But they decided it would be more dangerous not to include such an escape hatch in the Constitution.”
“In Federalist No. 74,” Jacoby continues, “Alexander Hamilton argued that without ‘exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,’ — i.e., that when hard cases make bad law, society needs a way to temper strict justice with mercy.”
Trump’s string of pardons thus far have shown no philosophical consistency that even approaches this standard. He’s just pardoning people to either fire up his base – like his pardon of Arizona Sheriff Joe Arpaio or today’s pardon of D’Souza – or to send a message to his political allies currently facing the prospect of jail over crimes that Trump himself may have committed.
So while we can’t deny that President Trump has the power to issue these sketchy pardons, there is no doubt that he’s using it in ways and with a frequency that have degraded the importance and the true purpose of this power.
This level of degradation, sadly, is nothing new for the current occupant of the White House.