By Kimberly Wehle, opinion contributor - 08/28/24

Donald Trump has put the presidential pardon power on the ballot this year in at least three different ways, underscoring a dire need for congressional oversight and public scrutiny of pardon abuses.

First, Trump may be the only candidate in American presidential history to be running on the promise of amnesty for criminals. He has floated pardoning the over 1,400 rioters who wound up criminally charged for participating in the Jan. 6, 2021 Capitol riot. Trump has called them “Great Patriots.” A fundraiser at Trump’s New Jersey golf club is scheduled for next week to pay their legal fees.

Second, Trump is the first former president to face criminal charges and a criminal conviction himself — and thus the first to raise the specter of a presidential self-pardon that would evade and obstruct the rule of law. In June, the Supreme Court condoned criminal self-dealing for presidents by manufacturing immunity for crimes committed using official executive power. Coupled with pardons for co-conspirators willing to carry out a president’s criminal orders, that ruling virtually invites an unaccountable criminal network into the Oval Office — again, largely thanks to Trump.

Third, Trump stands out among presidents for the numbers of pardons and commutations he gave to some pretty reprehensible people — including friends, politically connected allies, corrupt politicians and people whose silence unmistakably benefits him.

Trump pardoned or commuted the sentences of Roger Stone, Paul Manafort, Michael Flynn and others convicted in connection with Robert Mueller’s investigation into his 2016 presidential campaign and its links with Russia. He pardoned four former Blackwater guards who were convicted of killing 14 unarmed civilians in Baghdad in 2007.

He pardoned multiple former members of Congress. That includes former Rep. Chris Collins (R-N.Y.), who had pleaded guilty to insider trading and lying to the FBI and was also the first member of Congress to endorse Trump in 2015. Six other members of Congress, along with attorneys Rudy Giuliani and John Eastman, asked Trump for pardons for Jan. 6 — for the same events that produced a four-count federal indictment against Trump and made him an unindicted co-conspirator in several other cases.

Last week, Jonathan Braun, one of the 143 people to whom Trump granted clemency in his final hours in office, allegedly committed a violent crime. Braun, a drug smuggler from Staten Island, had been in prison for importing marijuana worth approximately $1.76 billion between 2008 and 2010. He pleaded guilty in 2011 and served five years of a 10-year sentence for conspiracy to import marijuana and to commit money laundering. Trump commuted his sentence on Dec. 22, 2020.

It’s possible that Trump knew of Braun’s violent tendencies when he let him out of jail. In separate civil lawsuits filed against Braun, the New York attorney general and the Federal Trade Commission charged him with making predatory loans to small businesses and threatening violence if they did not pay up. According to court filings, Braun threw a man off a deck at an engagement party and told a rabbi who had borrowed money to renovate a preschool, “I am going to make you bleed….I will make you suffer for every penny.” He threatened another man that he would “take your daughters from you.” Braun beat one of his workers with a belt so badly that it left him, in Braun’s words, “black and blue.”

In 2009, after the Drug Enforcement Agency raided his house, Braun fled to Canada and then to Israel, where he continued to run his drug operation. He later returned to the U.S. and was arrested, pleaded guilty and was sent to prison.

At the time of Braun’s commutation, the Justice Department was in the midst of a large criminal investigation into predatory lending, and the U.S. Attorney’s office in Manhattan was negotiating a possible deal with Braun to provide testimony in exchange for his release. By commuting Braun’s sentence, Trump removed prosecutors’ leverage over him, reportedly neutralizing the entire investigation.

After leaving prison, Braun went back to his predatory lending activities. In February, a federal judge imposed $20 million in damages in a civil action brought by the FTC, calling Braun a “craven man” who “gleefully” bragged about his crimes and laughed off his victims.

Last Tuesday, Long Island police arrested Braun for allegedly punching his 75-year-old father-in-law in the head. The man was trying to protect his daughter from Braun, who was reportedly chasing her after a fight. According to court documents, Braun’s wife had reported two assaults in the prior five weeks. He was charged with second- and third-degree assault.

Pardon systems are inevitably imperfect and vary across the country. Some states give pardon boards, not governors, the primary power to issue pardons. Others require governors to consult with parole or clemency boards. In some states, such as Georgia, pardons are not even possible until five years after someone completes a sentence. The same holds true under DOJ’s pardon standards, but they are not binding on presidents who, like Trump, can simply ignore them.

In theory, amnesty pardons — like Trump appears to be contemplating for Jan. 6 rioters — still have a role to play in our system of justice. President Jimmy Carter pardoned Vietnam draft dodgers in an effort to move the nation beyond the war — an act that possibly cost him reelection. Prison overcrowding and holes or disparities in the criminal justice system can also justify the exercise of mercy by presidents.

But even under the best circumstances, the worthy do not all make it to the president’s desk. More often, the rich and well-connected do.

After President Bill Clinton pardoned donor and fugitive financier Marc Rich in 2001, Congress opened investigations into whether the action was a quid pro quo linked to his wife’s huge donations to Democratic causes. The Justice Department also looked into whether Rich tried to buy his pardon, but ultimately did not bring criminal charges.

Still, this bit of history belies the notion that presidential pardons are above the law, and that presidents can lawfully use them to entrench their own power, reward donors and even obstruct investigations into their own misconduct with impunity. Congress cannot sit idly by if corrupt pardons flow out of the Oval Office ever again.

Kimberly Wehle is the author of the new book, “Pardon Power: How the Pardon System Works — and Why,” which comes out Sept. 2, 2024.