Tags: Donald Trump | Law Enforcement | dsouza | libby | milken | stewart

Presidential Pardons Right Flawed American Justice Wrongs

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In January of 2016, then-Republican presidential candidate Donald Trump seen with Maricopa County, Ariz., Sheriff Joe Arpaio in Marshalltown, Iowa. Arpaio has said he didn't ask President Donald Trump for a pardon for his misdemeanor conviction for defying a judge's order to stop immigration patrols. Arpaio also said he doesn't expect anything in return for his support of Trump. (Mary Altaffer/AP)

Tuesday, 05 Sep 2017 11:31 AM Current | Bio | Archive

Reasonable people may differ on the wisdom of President Trump’s pardon of Sheriff Joe Arpaio. Supporters of the pardon may see Arpaio’s case as an example of a deplorable trend — the criminalization of policy differences.

The Arizona lawman got caught in a fight over immigration policy. He was faulted for trying to enforce the immigration rules that Congress failed to rewrite, but ones the Obama administration didn’t seem terribly keen on enforcing. If his office did disobey court orders along the way, he nonetheless lacked the intent necessary to escalate the matter to criminal contempt of court from a lesser civil contempt charge.

Opponents of the pardon see racism in Arpaio’s roundups of immigrants. They see Arpaio’s disregard of a court order as a case of lawlessness just as egregious as the Obama administration’s supposedly lax immigration enforcement.

I can see both sides of it. Mostly, though, I’m glad that President Trump has familiarized himself with the pardon power enshrined in Article II of the Constitution. There’s a long list of other pardon candidates at least as worthy as Sheriff Joe, and maybe even more worthy. Here’s hoping the president turns his attention, and mercy, on some of the following candidates before year-end:

Michael Milken: Milken never warranted charging in the first place. Daniel Fischel’s book "Payback: The Conspiracy To Destroy Michael Milken And His Financial Revolution" tells the whole story. Even if one disagrees with that assessment of the initial case, though, Milken’s post-prison life, with its devotion to prostate-cancer philanthropy and other worthy causes, has been exemplary. Even Rudolph Giuliani, who as a federal prosecutor pursued Milken, later came out in favor of a pardon.

Martha Stewart: What better way for President Trump to get back at his self-righteous and self-serving former FBI director, James Comey, than by pardoning Comey’s highest profile pre-Trump victim, Martha Stewart? The charges against Stewart were always thin gruel, as was explained in, among other places, the New York Sun editorial "Martha Stewart and The Law." The joy that Stewart’s lifestyle guidance has brought to American households and their holiday kitchens and dining room tables ought to count for something, too.

Conrad Black: Black, whose newspaper company was an investor in the New York Sun when I was its managing editor, knows Trump from Chicago real estate dealings and from Palm Beach. As a columnist, he’s stood apart from the anti-Trump hysteria afflicting many of his National Review colleagues. The criminal charges against Black arose, so far as I can tell, from a business dispute between Black and minority shareholders over Black’s retrospectively brilliant decision to sell the company’s newspapers just before the Internet destroyed the newspaper business.

Regardless of whether one takes Black’s side or the minority shareholder side of that dispute, the idea that Black’s role in it amounted to a federal crime is a stretch. Black is a hero for his service to the cause of freedom in his proprietorship of the Telegraph in Great Britain, the National Post in Canada, and the Jerusalem Post in Israel. If Sheriff Joe deserves a pardon, so does Lord Black.

Dinesh D’Souza: This conservative intellectual was prosecuted for avoiding campaign contribution limits that are almost certainly unconstitutionally low to begin with, by making a donation to a U.S. Senate campaign of a New York Republican. In the long term, Trump may want to try to get Congress to abolish or at least raise those limits, which are already fairly easily avoided by legal tricks.

D’Souza’s error was to be clumsy rather than clever in avoiding the limits, which clash with the First Amendment guarantees of free speech, freedom of petition, and freedom of assembly. D’Souza’s 1991 book "Illiberal Education" was prescient and important in marking the absurdities of political correctness on campus. It’s not enough to make him prosecution-proof, but in considering a pardon, it may be something Trump wants to at least take into consideration.

Doubtless there are many other worthy candidates. I’d add I. Lewis "Scooter" Libby — left on the battlefield by George W. Bush, in Vice President Cheney’s memorable formulation. Larry Franklin, a Pentagon Iran analyst prosecuted for talking to a pro-Israel lobbyist, deserves a pardon. So does Sholom Rubashkin, an Iowa kosher-meat-processing executive whose case has attracted the interest of The Wall Street Journal editorial page and a long list of former Justice Department officials (I’ve done a small amount of paid work related to that case).

If this list tends toward the rich, famous, or white-collar, remember that some of these people attracted prosecutorial attention precisely because they were high-profile targets guaranteed to attract headlines and build prosecutorial careers. Feel free to add your own less famous names to the list.

The important principle is that Sheriff Joe’s pardon is just a starting point. Given all the flaws in the American criminal justice system — a point on which there is bipartisan agreement — there’s no reason for President Trump to be hesitant to use the pardon power he is granted by the Constitution.

Ira Stoll is editor of FutureOfCapitalism.com and author of "JFK, Conservative." Read more reports from Ira Stoll — Click Here Now.

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Given all the flaws in the American criminal justice system, a point on which there is bipartisan agreement, there’s no reason for President Trump to be hesitant to use the pardon power he is granted by the Constitution.
dsouza, libby, milken, stewart
Tuesday, 05 Sep 2017 11:31 AM
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