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Trump Expected to Flex Pardon Powers 12/03 06:29
Advocates and lawyers anticipate a flurry of clemency action from President
Donald Trump in the coming weeks that could test the limits of presidential
pardon power.
WASHINGTON (AP) -- Advocates and lawyers anticipate a flurry of clemency
action from President Donald Trump in the coming weeks that could test the
limits of presidential pardon power.
Trump is said to be considering a slew of pardons and commutations before he
leaves office, including potentially members of his family, former aides and
even himself. While it is not unusual for presidents to sign controversial
pardons on their way out the door, Trump has made clear that he has no qualms
about intervening in the cases of friends and allies whom he believes have been
treated unfairly, including his former national security adviser, Michael Flynn.
The list of potential candidates is long and colorful: Trump's former
campaign chairman, Paul Manafort, imprisoned for financial crimes as part of
the Russia investigation; George Papadopoulos, who pleaded guilty to lying to
the FBI, just like Flynn; Joseph Maldonado-Passage, aka "Joe Exotic," who
starred in the the Netflix series "Tiger King"; and former contractors
convicted in a Baghdad firefight that killed more than a dozen civilians,
including women and children.
Trump, long worried about potential legal exposure after he leaves office,
has expressed worry to confidants in recent weeks that he, his family or his
business might be targeted by President-elect Joe Biden's Justice Department,
although Biden has made clear he won't be part of any such decisions.
Nonetheless, Trump has had informal conversations with allies about how he
might be able to protect his family, though he has not taken any steps to do
so. His adult children haven't requested pardons nor do they feel they need
them, according to people familiar with the discussions who spoke on condition
of anonymity to discuss private matters.
Trump has also discussed potentially shielding himself, The New York Times
first reported. In a video posted on Facebook on Wednesday, he made a glancing
reference to his potential vulnerabilities.
"Now I hear that these same people that failed to get me in Washington have
sent every piece of information to New York so that they can try to get me
there," he said.
The speculation prompted a slew of preemptive pushback from critics.
"Typically if someone is being given a pardon it suggests they may have
committed a crime. That's not something I would want to have associated with my
family," said Republican Sen. Mitt Romney of Utah, a frequent critic of Trump.
Senate Democratic leader Chuck Schumer decried the notion of the president
asking staff whether he can issue preemptive pardons for himself, his family
members and his attorney, Rudy Giuliani, with whom Trump has discussed
potential action.
"There's a simple answer: No. No, Mr. President, that would be a gross abuse
of the presidential pardon authority," Schumer said.
Presidents enjoy expansive pardon powers when it comes to federal crimes.
That includes granting clemency to people who have not yet been charged, as
President Gerald Ford did in 1974 when he pardoned his predecessor, Richard
Nixon.
But presidents cannot issue pardons for state crimes nor can they sidestep
the law by pardoning people for crimes that have not yet occurred, according to
legal experts. It remains unclear whether a president has the power to pardon
himself. No one has tried.
A decades-old opinion by the Justice Department's Office of Legal Counsel
suggests presidents cannot pardon themselves because it would require them to
serve as judges in their own cases, but it also posits that a president could
declare himself unable to serve, transfer power to his vice president and
receive a pardon that way.
Presidents often make controversial grants of clemency to friends and donors
as they leave office: Bill Clinton pardoned wealthy financier Marc Rich, and
Ronald Reagan pardoned New York Yankees owner George Steinbrenner. But Trump's
position is notable given the sheer number of former aides and allies who have
been imprisoned, indicted or are facing legal jeopardy.
They include Manafort, Manafort deputy Rick Gates, the president's longtime
friend and adviser Roger Stone, his former chief strategist Steve Bannon and
his former lawyer Michael Cohen. Stone and Flynn are among those Trump already
has granted clemency.
In most administrations, 99% of those who receive pardons are people the
public never hears of, while the remaining 1% receive 99% of the attention,
said Michigan State University law professor Brian Kalt. But Trump's interest
in celebrities and high-profile figures has thrown those percentages off-kilter.
"You can see the appeal of the pardon power to someone like him," Kalt said.
"It's the one thing where the president says it and it gets done. He doesn't
have to deal with the 'deep state.' He doesn't have to go through congressional
oversight or judicial review."
In previous administrations, pardons have gone through a formal review
process at the Justice Department in which lawyers carefully examine cases
before making recommendations to the White House. Trump has largely sidestepped
that process --- instead relying on a more haphazard approach that has favored
candidates whose cases have resonated with him personally or that have been
championed by celebrities like Kim Kardashian West.
As the results of last month's election have become clear, those seeking
pardons before Trump leaves office have redoubled their efforts to garner White
House attention, leaning on high-profile Washington lawyers, re-upping PR
efforts and, in the case of Papadopoulos, writing a book, appearing on Fox News
and speaking to news outlets.
"I simply want the facts to get out about exactly what happened in my
situation and for the American public to determine its logical conclusion.
Which I hope is a pardon. I do not expect it, but I would be honored to accept
one," he told The Associated Press.
Giuliani, meanwhile, has spoken directly with the president about a pardon.
The two men have had preliminary conversations about the topic, but it is
unclear how serious those have been.
Beyond the bold-face names, however, are the regular people, behind bars,
who have tried to make the case that they were unfairly sentenced or deserve a
second chance.
"So many people are crying out for help," said Alice Marie Johnson, who had
been serving a life sentence without parole until Trump commuted her sentence
in 2018 after her case was championed by Kardashian West. Since then, Trump has
featured Johnson's story in a Super Bowl ad and pardoned her during this year's
Republican National Convention.
Johnson, who has already successfully lobbied the president to take action
on the cases of several other people, said she again met with Trump at the
White House several weeks ago to present additional cases, all for people with
"just incredible rehabilitation and incredible prison records."
"Personally, I'm hoping to see people home before Christmas," she said.
"Families around the country are praying for a Christmas miracle."
The White House did not respond to questions and press secretary Kayleigh
McEnany said she'd "heard no mention of any pardons in any conversations I've
had in the White House" other than Flynn.
Trump has so far used his clemency power less often than any president in
modern history, according to Justice Department data compiled by the Pew
Research Center.
It shows he has granted clemency 44 times, less than any other president
since at least William McKinley.
"You've got over 13,000 petitions filed by all these people who followed the
rules," submitting applications, having people write letters on their behalf
and waiting years for their cases to be processed, said Mark Osler, a former
federal prosecutor and professor at the University of St. Thomas. He has
participated in several meetings at the White House during Trump's term as
officials brainstormed potential changes to the formal clemency process.
"For those people that should be free," he said, Trump's friends-and-family
approach to pardons is "a deep and real tragedy."
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