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The Problematic Trump Pardons

Scratch the surface of many Trump pardons and you will find a campaign finance angle.

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Drew Angerer/Getty

Pres­id­en­tial pardon­ing power is one of the areas where typic­ally the pres­id­ent is presumed to have near-plen­ary power to pardon whomever he wants for any federal crime. Over the years pres­id­ents have raised eye brows with their pardons includ­ing Ronald Reagan’s pardon of George Stein­bren­ner for a Water­gate related crime, Richard Nixon’s pardon of Jimmy Hoffa for jury tamper­ing, and Bill Clin­ton’s pardon of Patty Hearst for robbery. What’s pecu­liar about Donald Trump’s pardons is there’s a “follow the money” aspect to many of them.

After the spate of pardons by Pres­id­ent Trump in Febru­ary, satir­ical writer Andy Borow­itz jested that Mexico had sealed the border with the United States to make sure that Amer­ican white collar crim­in­als could not make it into Mexico. Borow­itz joked that Mexico’s pres­id­ent said, “‘They’re bring­ing bribery, they’re bring­ing tax evasion, they’re bring­ing rack­et­eer­ing… I wish I could say that some of them were good people, but that does not appear to be the case.’”

But some of the Trump pardons and commut­a­tions are no laugh­ing matter. Unlike Pres­id­ent Obama’s pardons of many indi­vidu­als who were serving long sentences for nonvi­ol­ent drug crimes, two themes seem to run through the Trump pardons: disdain for white collar prosec­u­tions gener­ally and strange links to campaign finance donors and campaign finance viol­at­ors.

Fallout from Trump’s very first pardon, of former Mari­copa County Sher­iff Joseph Arpaio is still being dealt with by federal courts. On Febru­ary 27, 2020, the Ninth Circuit Court of appeals ruled that a district court was correct when it refused to vacate a crim­inal contempt verdict in his case. Arpaio had been found guilty of crim­inal contempt for will­fully viol­at­ing a prelim­in­ary injunc­tion prohib­it­ing him from enfor­cing federal immig­ra­tion law. As Judge Murray Snow noted that then-Sher­iff Arpaio commit­ted the contempt­able beha­vior “based on the notori­ety he received for, and the campaign dona­tions he received because of, his immig­ra­tion enforce­ment activ­ity.”

After entry of the contempt verdict, but before the court could sentence Arpaio in Octo­ber 2017, Pres­id­ent Trump pardoned Arpaio. The district court found “the pardon undoubtedly spared [Arpaio] from any punish­ment that might other­wise have been imposed” but did not “revise the histor­ical facts of this case.” The Ninth Circuit has let the record of convic­tion stand. By jump­ing the gun and pardon­ing Arpaio before he had been sentenced, Trump iron­ic­ally robbed Arpaio of some­thing he wanted — to have his name cleared.

Another early Trump pardon was for conser­vat­ive comment­ator Dinesh D’Souza, who pleaded guilty to making illegal campaign dona­tions in the names of others and was sentenced to five years of proba­tion. His pardon proved a harbinger of things to come.

Post-impeach­ment, on Febru­ary 18, Trump rolled out a raft of pardons mostly for white collar crim­in­als includ­ing Michael Milken, Ted SuhlDavid Safavian and the commut­a­tion of the sentence of the ex-governor of Illinois, Rod Blago­jevich.

Before Trump’s inter­ven­tion, Ted Suhl was serving seven years in prison for his role in a bribery scheme to boost Medi­caid payments to his compan­ies Maxus Inc. and Trin­ity Beha­vi­oral Health. As ProP­ub­lica poin­ted out, the primary advoc­ate for clem­ency for Suhl was former Arkan­sas Gov. Mike Hucka­bee, who had received campaign contri­bu­tions from Suhl.

Also among those receiv­ing pres­id­en­tial grace was Michael Milken, who gained fame during the 1980s as the “junk bond king”. In 1990, Milken pleaded guilty to viol­at­ing secur­it­ies laws. He was sentenced to 10 years but only served 2 years after being released for good beha­vior. He spent years trying to get a pardon, includ­ing from Pres­id­ent George W. Bush. Today his estim­ated net worth is $3.7 billion. Accord­ing to the White House, Trump was urged to pardon Milken by GOP megadonor Shel­don Adel­son.

Trump also gave a get out of jail free card to Blago­jevich, who was convicted of vari­ous crimes includ­ing trying to sell the appoint­ment to fill the senate seat vacated by Barack Obama when he ascen­ded to the pres­id­ency. Blago­jevich was also convicted of trying to shake down the CEO of a chil­dren’s hospital for $50,000 in campaign contri­bu­tions. After the Trump pardon, the chil­dren’s hospital had no comment.

Trump also pardoned David Safavian, formerly of the General Services Admin­is­tra­tion, who manages federal prop­erty and provides contract­ing options for govern­ment agen­cies. He had a felony convic­tion for obstruct­ing an invest­ig­a­tion into disgraced Wash­ing­ton lobby­ist Jack Abramoff. Abramoff went to prison for conspir­acy, fraud and tax evasion related to schemes that included provid­ing campaign contri­bu­tions to incum­bent politi­ciansAccord­ing to the White House, the Safavian pardon was appar­ently urged by another big super-PAC donor, Doug Deason. Deason serves on the finance commit­tee of the pro-Trump Amer­ica First Action PAC.

A final Trump pardon recip­i­ent was Paul Pogue, who pleaded guilty to under­pay­ing taxes by more than $400,000 in 2010. There’s also a campaign finance angle to that pardon, since, as ABC News repor­ted, “Paul Pogue’s son, Ben Pogue, who now leads the family construc­tion company, and his wife, Ashleigh Pogue, together gave a total of $238,541 between August and Octo­ber 2019 to Trump Victory.”

While these pardons are troub­ling, espe­cially when the gloss of campaign finance is added in for context, it is worth remem­ber­ing that there are still some prac­tical limits to the pres­id­en­tial pardon power — for example, it does not extend to state crimes.

This is partic­u­larly import­ant in light of a little noticed Supreme Court case from 2019 called Gamble v. U.S., which holds that it is consti­tu­tional to charge a person with both a federal and state crime based on a single act. Gamble means that those who viol­ate state law and federal law can get relief from the federal crime under a pres­id­en­tial pardon, but Trump — and every other pres­id­ent — has no way to shield crim­in­als from any paral­lel state crim­inal liab­il­ity.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.