Is Donald Trump abusing his power of the pardon?
The president announced Thursday that he would pardon Dinesh D'Souza, the Republican writer with a Twitter feed that, as reporter Benjy Sarlin notes, "looks like Roseanne's x 1,000." This is the second Trump pardon — former Maricopa County sheriff Joe Arpaio was the first — of a public figure whose career is characterized by raw bigotry. What's more troubling is that D'Souza is the recipient of the fourth of Trump's five pardons given to people whose case for clemency rested on little other than advocacy from Republican groups. He was convicted in 2014 for campaign finance violations, not for his bigoted personal attacks on Barack Obama and Hillary Clinton. Nonetheless, he claimed selective prosecution because of his political views, but the judge in his case noted he presented " no evidence" to support that assertion.
Evidence normally matters in pardon cases because, until this president was elected, there was a process that began with a five-year period before an application could even be filed. Then there are considerations including "post-conviction conduct, career, and reputation" and "acceptance of responsibility, remorse, and atonement." Trump has ignored those criteria, which are listed on the Office of the Pardon Attorney's website.
Instead, the president has substituted personal and arbitrary standards.
That's true even of his excellent pardon of Jack Johnson, the early 20th-century boxing champ. By all accounts, Trump acted because Sylvester Stallone persuaded him to do so. I think the action was correct, but the process stinks; whether a pardon is issued shouldn't depend on who has rich or politically connected friends. Or who is famous: Trump says he's also thinking about pardoning Martha Stewart and Rod Blagojevich.
A lot of people have speculated that Trump is using these pardons to signal to anyone who could get him in trouble that clemency is available for the president's friends. Sure, a president who uses the pardon power as part of a conspiracy to obstruct justice would be in blatant violation of his oath of office and a legitimate target for impeachment. But this one feels like a stretch to me. Without any further actions, I'm skeptical that this supposed signal would be sufficient to change the behavior of a potential witness.
I'm more concerned about the message these pardons could give to political operatives: They are a green light to just ignore the law because a pardon will be available as soon as the right party controls the White House. That would sure look like an abuse of the power of the pardon.
Even worse, Trump is undermining the concept of the rule of law by personalizing the pardon power and ignoring the process that previous presidents established to give that authority the appearance of neutrality. The Constitution gives him the right to pardon anyone who can play a convincing victim on Fox News, but the exercise of that privilege in this way looks a lot like autocratic rule.
There's no guarantee these actions qualify as the kind of abuse of power that could be part of legitimate impeachment proceedings. But even if Trump's behavior doesn't warrant his removal from office, he still can be committing serious offenses against the office of the presidency. We should give these misdeeds the attention, and Trump the condemnation, they deserve. That's what the rule of law demands.
Jonathan Bernstein writes for Bloomberg Opinion, where this first appeared.