The Quality of Mercy

There were those who thought that the new Constitution was a monumentally bad idea – it needed work. Alexander Hamilton and James Madison and John Jay didn’t – they liked it. They decided to promote the ratification of the new United States Constitution. They wrote about it. Each and every part of it was wonderful. This was a PR blitz. This was The Federalist: A Collection of Essays, Written in Favour of the New Constitution, as Agreed upon by the Federal Convention, September 17, 1787 – and it worked. The new Constitution was ratified on June 21, 1788 – and that was that.

Alexander Hamilton covered the contentious issue of pardoning power of the hypothetical new president in The Federalist Papers No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive – originally published on Tuesday, March 25, 1788 – explaining that this provision was about sweet mercy:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

In short, men, as a group, can be cruel and nasty. Juries can be mobs. One man, acting alone, can be more reasonable – unless he’s a calculating bastard, trying to shelter someone who should have been tossed in jail in the first place – a friend perhaps, or a political ally. Hamilton thought that was unlikely. That would never happen. A calculating bastard might also use the absolute pardoning power of the presidency to send a massage – the law doesn’t matter – or the law is whatever that calculating bastard says it is. Hamilton never imagined that. That couldn’t happen.

Hamilton was wrong. Hamilton never imagined Donald Trump:

President Trump granted a full pardon Thursday to conservative commentator Dinesh D’Souza and said he was strongly considering clemency for other celebrity felons, signaling his willingness to exercise his unilateral power to reward friends and allies while undercutting the work of his nemeses in law enforcement.

Trump said he was weighing commuting the prison sentence of former Illinois governor Rod Blagojevich (D) as well as granting a pardon to Martha Stewart, the television personality and lifestyle mogul, arguing that they and D’Souza had been unfairly treated by the justice system.

With Thursday’s announcements, Trump also delivered an indirect but unmistakable message to personal attorney Michael Cohen, former national security adviser Michael Flynn and others ensnared in Trump-related investigations that they, too, could be spared punishment in the future.

The message was clear enough:

D’Souza, Blagojevich and Stewart had been convicted of such crimes as campaign-finance violations or lying to investigators – charges similar to those brought against Flynn, former Trump campaign manager Paul Manafort and other Trump associates indicted in special counsel Robert S. Mueller III’s Russia investigation. Cohen, meanwhile, is under investigation by federal prosecutors in New York for possible campaign-finance violations and other possible crimes.

That law no longer matters, and this seems to have been more about vengeance than it was about mercy:

Another pattern in Trump’s granted or potential-pardons is their connection to the president’s perceived enemies. Former FBI director James B. Comey, whom Trump fired last year, prosecuted Stewart in her insider-trading case, while Comey’s close friend, former U.S. attorney Patrick J. Fitzgerald, prosecuted Blagojevich. Former U.S. attorney Preet Bharara, who, like Comey, was fired by Trump and has since been an outspoken critic, prosecuted D’Souza.

Trump was sneering at them – the law is whatever he says it is – he was humiliating his “enemies” in this case – and this was the case:

D’Souza is an author, filmmaker and provocateur who became a cult figure on the right in part because of his conspiratorial polemics about Barack Obama and Hillary Clinton. He pleaded guilty in 2014 to illegally using straw donors to contribute to a New York Republican candidate for U.S. Senate, telling a judge that he knows what he did was “wrong” and “I deeply regret my conduct.”

Prosecutors said D’Souza had other individuals donate money to Republican Wendy Long, a Republican who was challenging Sen. Kirsten Gillibrand (D-N.Y.) in 2012, under the agreement that he would reimburse them for the donations.

But men, as a group, can be cruel and nasty, and juries can be mobs:

D’Souza tweeted that he was grateful to Trump for his pardon and said of his prosecution, “Bharara and his goons bludgeoned me into the plea.”

D’Souza was whining. Alexander Hamilton was weeping. Hamilton imagined a president who was both reasonable and exercised “scrupulousness and caution” in this and all things. He never imagined Donald Trump:

Trump’s pardon of D’Souza was his sixth act of clemency as president. Each was issued unilaterally, subverting the traditional Justice Department process of reviewing thousands of pardon requests.

Traditionally, people seeking pardons apply through the Justice Department’s Office of the Pardon Attorney, which reviews thousands of cases and advances some to the White House for the president’s consideration.

But Trump has used his clemency powers in a more haphazard way, spurred by personal connections or political calculations. Most of the pardons are impulsive, according to a person familiar with the process, and are driven by his “seeing something on TV, reading something in a newspaper, hearing from a friend or someone lobbying him personally.” The president then usually asks White House lawyers to review the cases and prepare actions.

Consider how Trump decided last August to issue his first pardon, to former Arizona county sheriff Joe Arpaio, a campaign supporter and anti-immigration hard-liner.

“With Sheriff Joe, there was no process, no examination of exactly what did he do, what did he deserve?” said the person familiar with the process. “Someone said this is a miscarriage of justice on Fox News. Trump liked Sheriff Joe. That was it.”

Someone said this is a miscarriage of justice on Fox News and that was that, and that’s an issue:

Margaret Love, a former U.S. pardon attorney, said it is disturbing that Trump mostly issues pardons for personal or political reasons.

“There are thousands of cases pending, ordinary cases from ordinary Americans, who are being told if they want this relief they can apply through the Justice Department and be fairly considered,” Love said. “But in reality, you have to be able to figure out how to get cases to him and interest him personally in them.”

Actor Sylvester Stallone personally lobbied Trump to grant a posthumous pardon to heavyweight boxing champion Jack Johnson, which the president did in May. And reality television star Kim Kardashian visited Trump in the Oval Office on Wednesday to ask for a pardon of Alice Marie Johnson, who is serving a life sentence for a drug-trafficking conviction.

Scrupulousness and caution are quaint concepts now, because there are other factors at play:

Stewart and Blagojevich have ties to “The Apprentice,” Trump’s long-running reality television series on NBC. Stewart was the host of a short-lived spinoff, “The Apprentice: Martha Stewart,” in 2005. And Blagojevich was a contestant on “Celebrity Apprentice” in 2010, after he was indicted but before his convictions. Trump praised Blagojevich at the time as having “a lot of guts” to appear on the program.

Trump also has donated to Blagojevich’s gubernatorial campaigns: $5,000 in 2002 and $2,000 in 2007, according to Illinois state records. Trump’s company at the time was developing the Trump International Hotel and Tower, a downtown Chicago skyscraper that was announced in 2001 and opened in 2009.

Alexander Hamilton couldn’t have imagined any of this, and Carter Sherman explains why:

D’Souza is a firebrand author and filmmaker, having written the book “The Roots of Obama’s Rage” and directed titles like “Hillary’s America: The Secret History of the Democratic Party.” (The latter won a Razzie Award for Worst Picture.)

He’s also known for his tendency to generate outrage on Twitter. For instance, six days after the massacre at Marjory Stoneman Douglas High School in Parkland, Florida, D’Souza mocked survivors who cried as Florida lawmakers refused to consider a ban on assault weapons.

“Worst news since their parents told them to get summer jobs,” D’Souza wrote, later labeling their tears “politically orchestrated grief.”

He eventually apologized.

But wait, there’s more:

He suggested that the Charlottesville rally was “a staged event.” He decided that it was a good use of time to defend Hitler as not anti-gay. (“Hitler was NOT anti-gay. He refused to purge gay Brownshirts from Nazi ranks saying he had no problem as long as they were good fighters.”) He suggested former President Barack Obama was a “boy” from the “ghetto.” Oh, and he called Rosa Parks a member of the “OVERRATED DEMOCRATS DEPT.”

He also once shared a meme that called Obama a “gay Muslim” and indicated that Michelle Obama is a man. It was okay, though, because he captioned the meme, “I deplore this. Who is putting out these vile messages on social media?”

Trump likes the guy, and Michelle Goldberg adds a bit more detail:

During Barack Obama’s administration, the conservative author and activist Dinesh D’Souza wrote a book, “Obama’s America,” full of gross speculations about the sex life of the president’s mother, Stanley Ann Dunham, who was a pioneering anthropologist. “Ann’s sexual adventuring may seem a little surprising in view of the fact that she was a large woman who kept getting larger,” wrote D’Souza. He described her as a “playgirl” who used “her American background and economic and social power to purchase the romantic attention of third-world men.”

D’Souza’s insinuations had little to do with his ostensible thesis, which was that Obama sought to undermine America. It was simply a timeworn insult – calling someone’s mom fat and promiscuous – that tells us nothing about Obama’s family, but a lot about D’Souza’s character.

D’Souza’s character is questionable:

D’Souza is a felon who, in 2014, pleaded guilty to routing illegal campaign donations through a woman he was having an affair with, and the woman’s husband. (At the time, D’Souza was married and serving as president of the evangelical King’s College. His ex-wife would later accuse him of physical abuse.) For his crime, he spent eight months in a halfway house.

Goldberg, however, thinks she sees what’s going on here:

The pardon is a culture war smoke bomb, distracting from manifold other scandals and disasters: the study estimating that around 4,600 people died in Puerto Rico as a result of Hurricane Maria, outrage over migrant children ripped from their parents’ arms at the border, and an incipient trade war with our allies…

Of course, in writing about Trump’s distraction, I’m complicit in it. But even though it’s absurd, it’s also too serious to ignore. Dangling the possibility of a pardon for Stewart and a commutation for Blagojevich is a reality TV show gambit – call it “Celebrity Impunity.” But it’s also more than that. Trump is trying to harness the power of fame to delegitimize his enemies in law enforcement.

And this was a culture war smoke bomb too:

On Thursday D’Souza, who like Bharara is Indian-American, gloated on Twitter that Bharara “wanted to destroy a fellow Indian-American to advance his career. Then he got fired and I got pardoned.”

The pardon of D’Souza functions as revenge in more ways than one. When ABC canceled the sitcom starring Roseanne Barr, Trump’s most high-profile celebrity supporter, for her racist insult of the former Obama official Valerie Jarrett, it sent a message that the entertainment industry will hold the line against overt bigotry, even at the risk of alienating some Trump supporters. By pardoning D’Souza, who has said more disgusting things than Barr, Trump sends a rejoinder: his supporters can cross any lines they please.

Goldberg sees no lines now:

D’Souza, who made his name in the 1990s fighting campus political correctness, once had a reputation as a middlebrow conservative provocateur, but he’s really more gutter-dwelling troll. His 1995 book “The End of Racism” argued, “In summary, the American slave was treated like property, which is to say, pretty well,” and called for the repeal of the Civil Rights Act of 1964. D’Souza wrote a bizarre book blaming the “cultural left” for provoking the jihadists who struck America on Sept. 11 and arguing for an alliance of the American right and conservative Muslims in “opposition to American social and cultural depravity.” During the Obama years he, like Trump, became a full-bore conspiracy theorist, accusing the president of spearheading a third-world scheme to subvert America.

That’s why Trump likes the guy, and why he pardoned him:

The fact that D’Souza is utterly undeserving of a pardon might be part of the point; it signals that fealty to the president transcends all other values. In his new book “The Road to Unfreedom,” the historian Timothy Snyder quotes the Russian fascist philosopher Ivan Ilyin, who is beloved by Putin’s circle. Fascism, Ilyin wrote approvingly, is “a redemptive excess of patriotic arbitrariness.” Trump has almost certainly never read this line, but he understands it.

Trump has almost certainly never read the Federalist Papers either. He certainly doesn’t understand them, but maybe he’s rewriting them. David Graham sees this:

Other presidents have used pardons to send political messages, as when Jimmy Carter pardoned Vietnam War draft dodgers or Andrew Johnson pardoned Confederates; or to help out cronies, as when Bill Clinton pardoned financier Marc Rich, a major donor who was on the run from prosecution. Other presidents have also tended to wait until the end of their terms to grant high-profile pardons.

Trump’s innovation is to turn the pardon into an everyday tool of culture war, wedding the political messaging of Carter and Johnson to the individualist cronyism of Clinton. As with so many of Trump’s maneuvers, this is entirely within the legal bounds of his power but still largely outside the realm of propriety and precedent. In addition to the possible implications that Trump’s pardons have for the investigation into collusion with Russia – critics worry he’ll use them to obstruct prosecution – his methods of wielding the pardon power are likely to have long-ranging effects. New executive powers, once unsheathed, are seldom and only slowly reversed. That means the pardon could become a workaday tool of political combat in future administrations, too.

Hamilton never imagined a president weaponizing pardons that way, but maybe there’s no need to worry:

Rudy Giuliani, Trump’s outside counsel, told BuzzFeed News in an interview that the president told him about his decision to pardon D’Souza Wednesday night, adding he does not know who recommended the pardon to Trump.

There’s been some speculation that Trump’s pardon of D’Souza – like his earlier pardon of Scooter Libby – could be a signal to others that he’s willing to use his power to help people he deems “unfairly” treated, especially people who might be in the sights of special counsel Robert Mueller.

“I say there’s nothing to that,” Giuliani said, adding that he’s had no discussions with Trump about sending any messages with his pardons. “Just because you pardon one person, there’s no guarantee you’re gonna pardon another.”

No, this is something else:

A former White House official echoed that, saying he doubts “there’s any grand strategic reasoning behind this play,” adding that the D’Souza pardon likely came out of a conversation with a Fox News personality like Sean Hannity or Judge Jeanine. Blagojevich’s wife personally made the case for pardoning her husband on Tucker Carlson’s Fox News show last month.

The former official said he doesn’t think Trump is playing “the sort of three-dimensional chess people ascribe to decisions like this. More often than not he’s just eating the pieces.”

Hamilton never imagined that either. Josh Marshall puts it this way:

The D’Souza pardon affirms a basic point: the heart of Trumpism is not any policy but performative cruelty, inflicting maximum harm on those outside the tribal fold, and extending the benefits of power and the powers of state for those inside the fold. D’Souza is a loyalist so he gets rewarded with the prerogative power at the President’s discretion. The rationale isn’t legal. It is not in spite of but because of D’Souza’s racism and aggression. It is as simple as that.

Marshall is referencing  Zachariah Johnson:

‏Trump’s power is based on performative cruelty. That is what his supporters voted for – not for any policy, and not for any other principle than to do the worst thing to people outside the fold at every opportunity. He is loathsome, but he’s also keeping his promises.

Hamilton never imagined that either, and Marshall adds this:

The pardon power is archaic and in some ways hard to reconcile with our modern concepts of justice and judicial process. But mercy is an important element of justice. Indeed, without a role for mercy there can be no justice. There are many people rotting in prison who shouldn’t be there, even if they were guilty of the crimes for which they were convicted. In the past, the pardon was used sometimes for reasons as simple as managing prison overcrowding. Sentences do not need to be sacrosanct. The pardon power is a tool to cut through the harsh indifference of criminal law and right wrongs – but the way the modern pardon power has been circumscribed almost beyond recognition. There’s a Pardon Attorney at the DOJ who handles the process. The guidelines make demands which all but erase the meaning of the pardon power itself. You not only have to express remorse, you have to have served your sentence and then wait a period of time after you’ve served your sentence. In other words, the whole idea of have executive clemency which springs you out of prison ahead of time isn’t even supposed to be part of the process.

That makes no sense, but it seems that’s necessary:

Part of what running the pardon process through the DOJ is for is to insulate the President from that power. These are in a sense norms. This is why you have norms. They keep you within the rails in the face of obvious temptations and questions about propriety.

In this case, I think the norms are wrong, outmoded and counterproductive. But when you have someone who is just crooked, using the pardon power as a tool of his own personal advancement, rewarding friends for loyalty, norms have little effect, little significance. They don’t matter.

Perhaps presidential pardons are absurd now. Alexander Hamilton and James Madison and John Jay had argued that the new Constitution was great. Hamilton drew the short straw. He had to argue that presidential pardons were great. Hamilton was wrong. Hamilton never imagined Donald Trump.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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