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Pardons Give President Final Word on Politicized Prosecutions

us atty gen william bill barr

U.S. Atty. Gen. William "Bill" Barr. (Oliver Contreras-Pool/Getty Images)

By Tuesday, 08 December 2020 02:28 PM Current | Bio | Archive

Early in the Trump administration I wrote a column with a list of suggestions for the president to exercise his pardon or clemency power.

The names I mentioned were Michael Milken, Martha Stewart, Conrad Black, Dinesh D’Souza, I. Lewis "Scooter" Libby, Larry Franklin, and Sholom Rubashkin.

Trump has since pardoned Milken, Black, D’Souza, and Libby, and he commuted the sentence of Rubashkin. So I was five out of seven, which, for a piece headlined, "Trump’s Next Pardon’s: A Short List of Convicts Deserving To Be Cleared," strikes me as good enough that it’s worth returning to the topic for another shot. That’s especially true given that Trump has used his clemency power so far extremely sparingly: "less often than any president in modern history," according to a Dec. 3, 2020 Associated Press account.

The end of the calendar year is traditionally a peak season for pardons, and the end of a presidential term is, too.

Trump has made criminal justice reform one of his signature issues. The Constitution, in Article II, says a president "shall have Power to Grant Reprieves and Pardons for Offences against the United States."

Use of that power is a proper complement to the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, or First Step Act, that Trump signed into law.

So what are some names for Trump to take a close look at over the next few weeks?

Start with two of the seven I originally mentioned.

A recent Newsweek column by Caroline Glick reported that Larry Franklin is so destitute that he has been surviving in part by eating food out of dumpsters. His "crime" was meeting with pro-Israel lobbyists while serving as an Iran desk officer at the Pentagon.

Martha Stewart, a businesswoman and investor, was one of the first victims of prosecutor James B. Comey, who eventually became FBI director. One of the counts Comey got her on was lying to federal investigators in a perjury-trap style interview of the sort for which Trump has rightfully pardoned Michael Flynn.

Beyond Franklin and Stewart are some of those who have been prosecuted during the Trump administration.

The "varsity blues" prosecution took aim at parents who were inept at buying their children places in college. Corrupt consultants and coaches lured parents into spending money on these schemes rather than donating directly to a university, which would have been legal.

Trump should look for some parents to pardon here, especially after prosecutors used hardball tactics to press the parents to accept plea agreements rather than risking a trial.

Trump should not be shy about pardoning some of his own political allies who have been prosecuted in part because of their political activity.

A finance chairman of the Republican National Committee, Elliott Broidy; a former editor of the New York Observer, Ken Kurson; and two Trump campaign aides, Paul Manafort and Stephen Bannon, deserve pardons on the grounds.

William "Bill" Barr put it well at Hillsdale College: "criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes."

Barr went on, "Our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide."

To make it clear that political prosecutions are a bipartisan problem, Trump may want to consider pardoning a prominent Democrat, Sheldon Silver, who was speaker of the New York State Assembly.

Silver has already sacrificed his assembly seat and his political power. Turning politics into a crime is wrong whether the targets are Republicans or Democrats.

Prosecutors don’t like to have their work overturned by the president.

There have even been some reports about prosecutors trying to build cases against people for merely seeking a pardon, as if exercising the First Amendment right to petition were somehow corrupt.

In our constitutional system, though, the prosecutors work for the president, and the pardon power gives the chief executive the final word.

There’s no reason for him to be reluctant to make full use of it.

Ira Stoll is author of "JFK, Conservative," and "Samuel Adams: A Life." Read Ira Stoll's Reports — More Here.

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Ira-Stoll
In our constitutional system, though, the prosecutors work for the president, and the pardon power gives the chief executive the final word. There’s no reason for him to be reluctant to make full use of it.
barr, fbi, silver, varsity
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2020-28-08
Tuesday, 08 December 2020 02:28 PM
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