To Pardon or Not to Pardon?

First, it would trouble me if I thought that people were being convicted of, and particularly imprisoned for, crimes which likely never would’ve been discovered or prosecuted had those people not been investigated largely, perhaps solely, because of their past associations with me. And consequently, it would trouble me that, unless a strong stand were taken against it, this could become the new norm whenever a president gets elected:

Political opponents in law enforcement positions, and/or opponents in positions to influence law enforcement, initiate investigations of the new president’s associates in hopes of finding something criminal in their pasts, which then can be leveraged to get them to divulge (or worse, to fabricate) something criminal in the new president’s past, which in turn can be used to undermine (or worse, to impeach) the new president.

That sounds to me like the kind of thing that happens around “elections” in some of the quasi-democratic “banana republics” that I’ve visited, and it makes me wonder how many Americans who are well-qualified and ethical eventually might decline to run for public office for fear of their family members and friends being subjected to such tactics. Which brings me to the second thing that would trouble me.

It would trouble me if I thought that people were being convicted and imprisoned based largely upon their associates’ testimony, which may well have been influenced by threats of those associates’ own prosecution and imprisonment and by promises of leniency in return for the convicts’ incrimination. Again, I value law and order highly, and I generally support our prosecutors having the tools that they need to take criminals out of our society. That said, as a lawyer, I also highly value due process and equal protection of our law.

Which is why, ever since law school, it has troubled me that we allow prosecutors to elicit incriminating testimony via threats and/or rewards — as consequential as the loss or retention of witnesses’ liberty — when we would disbar a defense attorney and prosecute him/her for witness tampering if he/she attempted to elicit exculpatory testimony via threats or rewards, however inconsequential.

And as a psychologist, it further troubles me to know that, given the consequentiality of the threats and rewards which prosecutors have at their disposal, the testimony elicited thereby certainly is not always truthful. People in self-preservation mode — not all, but particularly people with track records of dishonesty and criminality — do lie; they do throw innocent others under the proverbial bus to save their own skins.

As a society, we made a philosophical decision long ago that it would be better for a guilty citizen to go free than for an innocent citizen to be imprisoned. Accordingly, to the extent that a citizen’s guilt or innocence is to be determined by testimony (as opposed to DNA, surveillance recordings, etc.), if we know that threats or rewards can corrupt that testimony, then perhaps we ought not to permit any threats or rewards. And if that makes some convictions more difficult or impossible to obtain (again, as highly as I value law and order), then perhaps so be it.

Now, to pardon, or not to pardon? That is the question, and if I were President Trump, I think I’d be struggling with it. Given how highly I value the rule of law, a part of me would be inclined to simply say what I typically say when someone gets caught breaking the law, “If you didn’t want to be held accountable for breaking the law, it was very easy to avoid; all you had to do was obey the law,” and leave it at that.

At the same time, another part of me would want to take a stand against politically-motivated partisan witch hunts, initiated by the opposition party and fueled by testimony arguably procured under duress, becoming the norm after presidential elections for the foreseeable future. And to be completely candid with you, another part of me would be so disgusted with Cohen if he, as my lawyer, had made an audio recording of me without my consent, that I might, I confess, be more inclined to pardon Manafort.

So, to pardon, or not to pardon? What would you do?

Brian Russell wanted to learn how people could live together as peacefully and prosperously as possible, so he studied what makes us tick (and got a Ph.D. in clinical psychology), how public policy keeps us in line (and got a law degree), and what motivates us to do our best (and got an M.B.A.). Then, he put theory to the test, practicing both psychology and law, starting his own small businesses, consulting with business leaders and lawmakers, and traveling the world comparing what does and doesn’t work in 40 societies. Now, he shares his expertise in people, public policy, and productivity on national television and radio, in his book, "Stop Moaning, Start Owning: How Entitlement Is Ruining America and How Personal Responsibility Can Fix It," and here on Newsmax. Learn more at DrBrianRussell.com. To read more of his reports — Click Here Now.