On pardons

The editors of the Washington Post are upset that President Trump pardoned Dinesh D’Souza. They also express concern that Trump might pardon Martha Stewart and Rod Blagojevich.

I have no problem with the D’Souza pardon. The Obama administration threw the book at D’Souza for a relatively small campaign finance law offense that, as I understand it, normally results in a slap on the wrist. It did so, in all likelihood, for the same reason the Post is unhappy with the pardon — D’Souza was a strident and effective critic of the Obama administration and of liberalism in general. According to one report I heard, D’Souza’s anti-Obama film was mentioned in the prosecutor’s file.

The Post frets, as other Trump-haters have, that the D’Souza pardon signals he can overturn the results of the Mueller investigation. But the president is not obliged to refrain from using a power that all presidents have (and use) just because his enemies were able to gin up — out of virtually nothing, it now seems — the Russia collusion investigation.

In any event, everyone understands that Trump can (and might) use the pardon power in connection with Mueller’s investigation. D’Souza’s pardon changes nothing in this regard.

However, I agree with the Post that Trump should think long and hard before pardoning Stewart and/or Blagojevich. Unlike D’Souza, both were convicted by juries. Trump may think the verdicts were unjust — in Stewart’s case, many do. But has he read the trial transcripts to learn what the evidence showed? I doubt it.

At a minimum, Trump should not pardon either Stewart or Blagojevich without taking into account the view of the U.S. pardon attorney who normally reviews requests for clemency. That way, the public can be satisfied that the pardon is not based on Trump’s mere impression of the cases or some other motive.

It’s especially important that the DOJ be involved because of two things Stewart and Blagojevich have in common. First, both appeared on Trump’s reality television show. Clearly, a past business relationship with Trump is not a good ground for a pardon.

Second, Stewart was prosecuted by James Comey and Blago by Comey’s friend Patrick Fitzgerald (as was Scooter Libby, whom Trump already has pardoned). Comey is Trump’s enemy and Trump may believe that Fitzgerald, the friend of his enemy, is his enemy by extension.

But pardons should not be granted to spite prosecutors the president doesn’t like. Moreover, Comey and Fitzgerald were both respected prosecutors, Comey not having yet flipped out at the time of the Stewart trial. In any case, it was the juries, not the prosecutors, who found Stewart and Blago guilty.

Blagojevich received a fourteen year sentence. Perhaps that was too long (I don’t know the case well enough to say). If Trump, after sufficient study, concludes that it was, he can commute the sentence. But pardoning a guy convicted by a jury after being caught on tape boasting of his plan to sell a Senate seat would go too far, at least absent a favorable recommendation from the Justice Department.