News Analysis
WASHINGTON — When it comes to pardons from this populist president, the little guy need not apply — at least, not yet.
If you want President Donald Trump to offer that relief, it helps to be famous, to know him personally or to accuse the government of executing a high-profile witch hunt against you. And one of the messages he's sent, according to some legal experts, is that it will help in the future to have been loyal to him during special counsel Robert Mueller's investigation.
Trump has the power to pardon any or all of the figures in that probe, possibly including himself. So far, he hasn't pulled that trigger, but he has repeatedly bailed out martyrs of the conservative movement.
On Thursday, he announced he would grant a reprieve to Dinesh D'Souza, the well-known conservative author and filmmaker whose cultural commentary often makes Trump's rhetoric look restrained. The president said he is also thinking about a commutation for corrupt former Illinois Gov. Rod Blagojevich, who is serving a 14-year sentence, and a pardon for Martha Stewart, both of whom appeared on "The Celebrity Apprentice."
Trump's already given clemency to Scooter Libby, the aide to former Vice President Dick Cheney who outed clandestine CIA officer Valerie Plame, the late boxer Jack Johnson, Arizona GOP Senate candidate Joe Arpaio — whose views on immigration are more hard-line than Trump's — and Kristian Saucier, who is less well known but became a cause célèbre on the right because he was convicted of possessing classified information when Hillary Clinton wasn't prosecuted for having classified information on her private email server.
Each pardon sends its own message — Trump will reward loyalty, political ideology, fame, personal friendship and the ties that bind people with common enemies — and the Kremlinology of Trump's formula for granting pardons is fast becoming a cottage industry in Washington.
But on the day after he met with reality television star Kim Kardashian West to discuss the case of Alice Marie Johnson, a first-time drug-trafficking offender who has been recognized by many experts as one of the convicts most deserving of presidential leniency, Trump chose to show mercy to a star of the political right who has something very much in common with him: D'Souza, like Trump, argues that Obama administration political appointees and civil servants conspired to charge him with crimes because of his political beliefs.
Whether D'Souza really believes that, or the version he told the judge before sentencing — that he knowingly violated campaign finance laws, regretted his actions and had no evidence that he was targeted due to his politics — his accusations that the Obama administration's Justice Department allowed political bias to guide its investigations and prosecutions sound a lot like Trump's.
Indeed, that's what Trump hinted at in explaining why he thought D'Souza was the right candidate for a reprieve.
"I’ve always felt he was very unfairly treated," Trump said Thursday. "What should have been a quick minor fine, like everybody else with the election stuff….what they did to him was horrible.”
In the Wild West of modern campaign finance law, one of the biggest remaining infractions is to make "straw" donations — to hide contributions to a candidate by making them in other people's names. Typically, the practice is employed to exceed federal limits on campaign giving. That's what D'Souza, a politically sophisticated Ivy Leaguer, pleaded guilty to doing.
It's noteworthy that Trump, who boasted on the campaign trail that he could clean up Washington because he knew all the tricks of the trade in using contributions to influence public policy, doesn't think that campaign finance violations are serious breaches of the law.
In discussing Blagojevich, who tried to sell his power to appoint a senator to succeed newly elected President Barack Obama, Trump said what he did was politics, not crime.
In particular, Trump pointed to a key piece of evidence against Blagojevich, a secret recording of him talking about how potentially valuable such an appointment could be to him.
"Plenty of other politicians have said a lot worse," Trump said. "He shouldn't have been put in jail."
And like Trump, Blagojevich argues that he's a victim of federal prosecutors run amok.
"Under the legal arguments that prosecutors used to convict me, all fundraising can be viewed as bribery," the ex-governor wrote in an op-ed in the Wall Street Journal that was widely viewed as a personal appeal to Trump for clemency.
On Thursday, New York Attorney General Barbara Underwood released a statement pleading with state lawmakers to close a "loophole" in state law that could prevent the state-level prosecution of anyone Trump pardons.
"President Trump's latest pardon makes crystal clear his willingness to use his pardon power to thwart the cause of justice, rather than advance it," she said. "First it was Sheriff Joe Arpaio. Then it was Scooter Libby. Now it's Dinesh D'Souza. We can't afford to wait to see who will be next."
Past presidents have often given leniency to celebrities and political allies. Barack Obama pardoned Chelsea Manning and Willie McCovey; Bill Clinton did the same for financier Marc Rich, whose wife raised money for his political and nonprofit projects, and Patty Hearst; George W. Bush commuted Libby's sentence; George H.W. Bush pardoned several Iran/Contra scandal figures and Armand Hammer; and, of course, Gerald Ford pardoned former President Richard Nixon.
But no modern president has focused so exclusively on big-name convicts so early in his presidency.
Having just freed themselves from a monarchy in which the rule of law could be bent to the will of the king, America's Founding Fathers wrestled mightily with whether the power of the pardon should be granted to a single executive who might be able to reward friends who had broken the law — perhaps in service of him.
In the anti-Federalist papers, a writer who went by the pen name Cato asked whether the consolidation of powers within the presidency, including the sole authority to grant pardons, could "tend either to the establishment of a vile and arbitrary aristocracy, or monarchy?"
But it was the Federalists, concerned about mob rule and the possibility of political imprisonment, who won out. They contended that "one man appears to be a more eligible dispenser of the mercy of government than a body of men."
Right now, that one man is Trump.