Trump's revealing pardon pattern
Former President Barack Obama commuted hundreds of prison sentences in his final days in office. His 1,927 grants of various kinds of clemency were a new record high in U.S. history. They were also a near-historic low when considered in proportion to the number of requests he solicited and received. Where presidents in the first half of the 20th century granted about one in three pleas for clemency, Obama approved one in 20 of the more than 35,000 petitions that deluged his office. He also followed the practice of presidents in the last half-century of backloading approvals to the very end of his term, presumably to avoid political blowback while it still mattered. Obama's pardon pattern was arguably representative of his entire presidency: veneered with lofty visions of change but, underneath, less novel than was variously hoped and feared.
As President Trump concludes his four years, a similarly revealing pardon pattern looks to be emerging, and it reiterates what should have long been clear: Trump uses his office to benefit himself, and he is not actually concerned with criminal justice reform except insofar as it advances that benefit.
Of course, it's possible Trump will revert to the recent norm of dropping a bundle of commutations — mostly for low-level, non-violent offenders with good behavior records and heavy prison sentences thanks to mandatory minimum laws — on his way out the door. But if reports this week are correct, he's on track to do something rather more self-serving: He may attempt to pre-emptively pardon himself and his family members as insurance against any prosecution attempts after he leaves the White House.
Fox News host Sean Hannity advised Trump to do exactly that Monday night. Without these pardons, President-elect Joe Biden and other prominent Democrats will ensure an anti-Trump "witch hunt [will] go on in perpetuity," Hannity warned. "I assume that the power of the pardon is absolute, and that [Trump] should be able to pardon anybody that he wants to," he said, and "anybody" could include "his whole family and himself." (Biden has pledged not to pardon Trump, but he has also indicated reluctance to investigate him.)
Per reports from ABC News and The New York Times the next day, Hannity's recommendation is more than idle chatter. Trump is reportedly considering the idea, which would be a comfortable fit with his previous clemency for allies including Michael Flynn, his former national security adviser; Joe Arpaio, former Arizona sheriff and Trump's fellow birther conspiracy theorist; Rod Blagojevich, former Illinois governor and Celebrity Apprentice cast member; and Roger Stone, who is, in his own words, a "dirty trickster."
Meanwhile, a heavily redacted court filing released Tuesday showed the Justice Department investigated a possible "bribery for pardon" scheme involving the White House. It's not clear from the document — in which entire pages are blacked out and names are concealed — who was involved, whether the allegation had any merit, or if the investigation is still ongoing. It's not even definite that the Trump White House is the White House involved; the five-year span to bring federal bribery charges still includes the last full year of Obama's tenure, though the convict in question is thought to have been "imprisoned as recently as this summer," which would place the possible corruption firmly in the Trump era.
The bribery investigation may prove to be a nothingburger, but right now it further emphasizes the questionable legality of whether and how a lame-duck Trump will pardon. It also draws attention to the discontinuity between Trump's potential pardon pattern and that of presidents past. It's not clear what courts would do with pardons for his children that not only pre-empt prosecution (there is precedent for this — it's how former President Richard Nixon's pardon worked) but also decline to specify any crime. "There is no entire get-out-of-jail free card," DOJ veteran H. Jefferson Powell told ABC.
As for a self-pardon, there's a 1974 Justice Department memo prohibiting it; there's a textual argument against it one can imagine conservative Supreme Court justices endorsing; and some legal experts have argued a self-pardon should be seen as admission of guilt. But that memo isn't law, and though the balance of legal opinion is against self-pardon, I doubt that alone would stop Trump from giving it a shot. If he decides against self-pardon, it won't be respect for law or norms that stays his hand. It will be more practical concerns about the pardon becoming more trouble than it's worth.
What's missing here is clemency for ordinary people, like Alice Marie Johnson, the woman whose life sentence for a first-time, nonviolent drug offense Trump commuted in 2018 after lobbying by Kim Kardashian West. Trump went on to pardon Johnson this year, and granted clemency to several of her friends. But Johnson's case is an exception with Trump. He has only granted clemency 44 times, and his list of recipients is almost entirely populated by people with personal ties to him or his allies. (There are a few symbolic entries, too, like the posthumous pardon of Susan B. Anthony, whose thoughts on the president's rhetoric about women I would pay good money to hear.)
It is vanishingly unlikely Johnson herself would have been pardoned absent West's celebrity. However much he likes to tout his signature of the First Step Act, Trump shows no sign of true interest in making our criminal justice system more just or humane — not for people he doesn't value, anyway. A president who prioritized criminal justice reform would issue a steady stream of clemency grants for people like Johnson throughout his tenure, regardless of the blowback. Trump got his Kardashian photo-op and moved on.
This is why I don't have much hope Trump will take the normal route of mass clemency in January. There aren't enough sexy reality TV stars in the world to make him care about the multitudes unjustifiably locked away in American prisons. He's more interested in making sure people he does care about don't join them. As ever, that chiefly means himself.