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 Suhl, David 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 politicians. According 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.