The Pardon Power Is Helping Trump Realize His Dreams
More than any previous president, Donald Trump has systematically deployed his authority to grant pardons to reward loyalists, assure appointees and associates that they can violate the law with impunity and reduce prosecutorial pressure on allies to testify against him.
Legal scholars are outspoken in their criticism of Trump's use of the pardon power.
Rachel Barkow, a law professor at N.Y.U., described Trump's goals by email:
The use of the pardon power is part of his effort to put the country on an authoritarian path. Instead of administering the pardon power evenhandedly with a regular process that is available equally to all, he is rewarding his partisan allies. It is the carrot for supporters, and he uses the stick of weaponizing prosecutions and investigations against his partisan enemies.
Of the more than 1,600 pardons and commutations Trump has issued, only a tiny fraction fit the traditional purpose of addressing a miscarriage of justice, excessive sentencing for nonviolent crimes and prosecutorial overreach.
Trump, Barkow wrote,
is clearly sending a message that he will support people who support him — that's why Ed Martin, the current pardon attorney, tweeted 'No MAGA left behind.' Trump is trying to create a narrative that prosecutors are unfairly weaponizing the law by targeting people with financial fraud and corruption charges, which is what he says happened to him.
In the vast majority of cases so far, Trump granted pardons to those who have committed crimes in support of his claim that the 2020 election was stolen — the Jan. 6 insurrectionists — and to a smaller number of those convicted of the kind of crimes Democrats accuse the president of committing, especially bribery and financial fraud.
Frank Bowman III, a law professor emeritus at the University of Missouri and former special counsel to the U.S. Sentencing Commission, argued in an email that:
No president before Trump has simply abandoned the principle that pardons are to be used for the public good, either to achieve just outcomes in individual cases, to remedy defects in criminal justice policy, or to heal the wounds of domestic unrest or civil or foreign wars by extending mercy to the defeated or forgiveness to those who broke the law in opposing the nation's will.
Bowman shares Barkow's view that Trump is intent on acquiring authoritarian powers: 'Trump's abuses of the pardon power are merely one component of an integrated program of destroying legal constraints on Trump's drive for absolute political power and even greater personal wealth.'
In an essay published in Slate in April, 'The Biggest Political Scandal of Trump's Term Has Gone Completely Ignored,' Bowman argued that
Trump's twin ambitions are to be a dictator and to become ever more fabulously wealthy. Thus, in addition to using state power to crush his perceived enemies, he wants to be able to accept or extort political favors, both monetary and intangible, that keep him in office and centralize authority in his person.
As part of this strategy, Bowman continued,
Trump is now openly deploying pardons as a reward for political favors — huge financial contributions in the case of Trevor Milton, and questionable testimony against political enemies in the cases of Jason Galanis and Devon Archer.
These cases, in Bowman's view,
should be understood as merely one component of a coordinated effort to neuter both criminal and civil mechanisms for detecting, regulating, and punishing financial crime and public corruption — or at least financial crime and public corruption committed by Trump and his allies.
Bowman wrote in his email that Trump's pardons generally fit into the following categories:
Pardons 'dangled,' to use the phrase from Watergate, and later awarded, to associates who could implicate Trump in conduct either impeachable or criminally prosecutable. This class of pardons was employed at the end of Trump I and included pardons to Steve Bannon, Paul Manafort, Roger Stone and Michael Flynn.
Pardons to Trump's violent supporters from Jan. 6.
Pardons granted as rewards either for financial contributions to Trump or his political operations or for political support of other kinds by the defendant or his family.
'Pre-emptive self-exoneration' or 'refining criminality pardons: Trump has issued multiple pardons to defendants convicted of bribery and high-value financial crimes, notably fraud and crypto. When explanations are forthcoming, they tend to be either that the defendants were railroaded by deep state liberal prosecutors or that the crimes were not so much crimes as technical violations of excessive government constraints on benign business practices.
Many of the law professors I contacted for this column cited two other hallmarks of Trump's pardons.
First, many of the crimes that Trump expunges are similar to the crimes Democrats accuse him of.
Second, Trump is signaling through his pardons that appointees who break the law in furtherance of his agenda will themselves be pardoned if indicted and convicted — or to forestall indictments in the first place.
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