President Donald Trump’s announcement Thursday that he is giving a full pardon to conservative provocateur Dinesh D’Souza and is considering clemency for Martha Stewart and imprisoned former Illinois Gov. Rod Blagojevich has underscored the relish he takes in that power — in ways that break norms dating to the nation’s founding.
The D’Souza pardon would be Trump’s fifth, and the latest in a pattern of using the president’s near-absolute authority to benefit individuals in legal trouble based on his political whim or convenience.
Trump’s critics suggested the pardons could amount to a signal from the president to associates implicated in the Russia investigation that he would consider pardoning them. Among the critics Thursday was Sen. Mark R. Warner of Virginia, the senior Democrat on the Senate Intelligence Committee, which is investigating Russia’s election interference and possible Trump campaign cooperation.
“The president’s ad hoc use of the pardon power is concerning enough,” Warner wrote on Twitter. “But the possibility that he may also be sending a message to witnesses in a criminal investigation into his campaign is extremely dangerous. In the United States of America, no one is above the law.”
The pardon power under Article II of the Constitution is one of a president’s most absolute. That has made it particularly appealing to Trump, given his penchant for decisive acts and his evident frustration with the checks and balances that, for most actions, require a president to share power with Congress and the federal courts — and potentially be blocked by those other two branches of government.
Since George Washington, however, presidents have, for the most part, voluntarily accepted restraints on their ability to pardon. Starting in 1789, government lawyers have been designated to review pardon applications. And since 1865, presidents have typically relied on a review by the Justice Department before granting clemency.
Trump, so far, has sidestepped that process. Of the five people he has announced pardons for, including D’Souza, just one had a pending clemency application at the Justice Department: former Navy sailor Kristian Mark Saucier, who was convicted in 2016 of unauthorized possession of classified data. Saucier’s case got Trump’s attention because the sailor had used a so-called Clinton defense to argue that his acts were no worse than Hillary Clinton’s use of a personal email server when she was secretary of state.
Trump has seemed to act on impulse or at the urgings of friends and celebrities in making his clemency decisions. Three of his pardons have gone to people backed by his conservative political allies — D’Souza; Joe Arpaio, the former Maricopa County sheriff; and I. Lewis “Scooter” Libby, the former aide to Vice President Dick Cheney who was convicted in 2007 of perjury and obstruction of justice.
Actor Sylvester Stallone lobbied Trump to pardon Jack Johnson, the late African-American boxer, who was convicted in 1913 on charges stemming from his sexual relations with a white woman. On Wednesday, Kim Kardashian West visited Trump at the White House and urged him to pardon a woman sentenced to life in prison for a nonviolent drug charge, her first offense.
The White House would not say who urged Trump to pardon D’Souza, but gaining clemency for him has been a cause for Trump confidant Sean Hannity, the Fox News host, and Sen. Ted Cruz of Texas, who say D’Souza was targeted for his caustic, sometimes racist, criticism of President Barack Obama and first lady Michelle Obama.
Similarly, Blagojevich’s allies have lobbied extensively for his 14-year sentence to be reduced.
Another pattern is that Trump has seemed to favor clemency for people prosecuted by his nemeses: D’Souza was prosecuted by Preet Bharara, whom Trump fired as U.S. attorney in Manhattan. Stewart’s prosecution was directed by one of Bharara’s predecessors in that job, James B. Comey, whom Trump later fired from his job as FBI director.
Blagojevich’s prosecutor was Patrick Fitzgerald, a friend of Comey’s who also prosecuted Libby.
For Trump, the day’s pardon action began early Thursday, when he tweeted: “Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!”
D’Souza pleaded guilty in 2014 to campaign finance fraud.
Trump did not explain how D’Souza had been treated unfairly, but the White House, in a statement, said that “D’Souza was, in the president’s opinion, a victim of selective prosecution for violations of campaign finance laws.”
The federal judge in the case decided otherwise in 2014 when D’Souza raised that claim in court, saying D’Souza had “no evidence” for his contention. At D’Souza’s sentencing, the judge admonished him, saying, “It is still hard for me to discern any personal acceptance of responsibility in this case.”
D’Souza admitted to having illegally used straw donors, including a woman with whom he was having an affair and who has since become his wife, to contribute to a Republican Senate candidate in New York in 2012. He was sentenced to five years of probation, including eight months at a “community confinement center” in San Diego, and ordered to pay a $30,000 fine.
Bharara denied any political influence took place, tweeting that “the facts are these: D’Souza intentionally broke the law, voluntarily pled guilty, apologized for his conduct & the judge found no unfairness. The career prosecutors and agents did their job. Period.”
D’Souza fired back in a tweet later in the day saying that Bharara “wanted to destroy a fellow Indian American to advance his career. Then he got fired & I got pardoned.”
Talking to reporters on Air Force One as he flew to Texas for fundraisers, Trump said of D’Souza: “I never met him, I called him last night — first time I’ve ever spoken to him — I said I’m pardoning you. Nobody asked me to do it.”
“I’ve always felt he was very unfairly treated, and a lot of people did,” Trump said, adding that D’Souza should have gotten “a quick minor fine, like everybody else with the election stuff.”
Stewart, the lifestyle entrepreneur, was convicted in an insider trading case in 2004.
The president said of Stewart: “She used to be my biggest fan in the world … before I became a politician.”
Blagojevich, a Democrat, was impeached and removed from office, and convicted in 2011 of corruption, for seeking to benefit from making an appointment to fill the Senate seat vacated by Obama after he became president.
Trump mentioned on Air Force One that he knew Blagojevich from the president’s former reality TV show. Blagojevich was a contestant on “Celebrity Apprentice” in 2010. The president was dismissive of the allegations that Blagojevich solicited bribes from potential Senate appointees.
“If you look at what he said, he said something to the effect like what do I get,” Trump said. “Stupid thing to say. … And it was foolish.”
But “what he did does not justify 18 years in a jail,” Trump said, misstating the sentence. “Plenty of other politicians have said a lot worse.”
“I am seriously thinking about — not pardoning — but I am seriously thinking of a curtailment of Blagojevich,” he added, apparently referring to a commutation of the sentence.
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