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Trump’s grants of clemency for his cronies and Fox News friends have almost exclusively gone to people who are themselves accused of violating the justice system.

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Greg Wolpert: It’s The Real News Network. I’m Greg Wolpert in Arlington, Virginia. Last week, President Trump pardoned or commuted the prison sentences of 11 people. Included in his list of pardons and commutations were the junk bond manager Michael Milken, who had been convicted for racketeering and securities fraud, former New York City Police Commissioner Bernard Kerik, convicted on tax fraud and lying to the government, and former Illinois governor Rod Blagojevich, convicted of bribery, wire fraud, and attempted extortion. The Daily Beast even reported that in one instance, the family of a pardon recipient had provided donations to Trump’s reelection campaign just before Trump issued the pardons. Here’s what Trump had to say about the pardons.

Donald Trump: We have commuted the sentence of Rod Blagojevich. He served eight years in jail. It’s a long time. That’s a tremendously powerful, ridiculous sentence in my opinion. When you look at what happened to McCabe with a recommendation of prosecution and you look at all of these other people and then you look at what happened to General Flynn, a highly respected man. Look at, I mean, his life has been destroyed. You look at a Roger Stone for a tweet and some other things. I’m actually, I guess the chief law enforcement officer of the country.

Greg Wolpert: Presidential candidates Bernie Sanders and Elizabeth Warren criticized Trump via Twitter. Sanders tweeted, quote, “Today, Trump granted clemency to tax cheats, Wall Street crooks, billionaires, and corrupt government officials. Meanwhile, thousands of poor working class kids sit in jail for nonviolent drug convictions. This is what a broken and racist criminal justice system looks like.” Senator Elizabeth Warren tweeted, “It looks like in the Trump White House, you can buy a pardon. This is corruption, plain and simple.” Joining me now to analyze what Trump’s pardons mean for the US justice system is Austin Sarat. He is an associate provost and William Nelson Cromwell professor of jurisprudence and political science at Amherst College. His most recent book is The Death Penalty on the Ballot, American democracy and the fate of capital punishment. Thanks for joining us today, professor Sarat.

Austin Sarat: Thanks for having me.

Greg Wolpert: So before we get into the issue of Trump’s use of power to pardon and commute sentences, let’s put this into context. That is, why do presidents and governors usually too, have this power in the first place? And why is this clemency power actually unlimited?

Austin Sarat: The clemency power is found in the constitution itself. The Constitution branch to the president, the exclusive right to grant pardons and reprieves. At the time the clemency power was put into the Constitution, it was a vestige of the monarchical prerogative to grant pardons. The framers of the American Constitution thought that the clemency power that the president could wield would be useful in redressing injustices that had not been redressed in the court system. And they also thought that it would be useful as a political tool. Indeed, in the Federalist Papers, they said clemency would be particularly useful in times of insurrection, meaning they looked to clemency, they looked to pardon, they looked to amnesty as a way of bringing political opponents back into the fold. And the clemency power from the framing of the Constitution today has been among, if not the single most discretionary power that the president of the United States has.

Greg Wolpert: Now, you recently wrote an article for The Guardian titled Donald Trump’s use of clemency undermines the rule of law. Now, if his use of this power is lawful, how can it be undermining the rule of law? And is the president’s clemency power having unintended side effects?

Austin Sarat: Clemency is a kind of a lawful lawlessness. It’s a power granted by the Constitution, but not subject really to effective legal regulation. The question though of how clemency is used is still a live and important one. And I believe that the president has used his clemency power particularly to reward people whose crimes have gone to the integrity of the legal system itself. So the president is particularly merciful, particularly interested in granting clemency to people, for example, who have been jailed for contempt of court or been convicted of perjury or been convicted of lying to Congress. So it’s not just that the exercise of the power is incompatible with the rule of law, it’s the purpose of the clemencies that he’s granted that I think are incompatible with the rule of law.
And Trump is not the first president to grant pardons to people that he likes. He’s not the first president to grant pardons to people who are as political allies, but what is really striking in Trump’s grants of clemency is the extent to which he seems to think that people who have done things that undermine the integrity of the legal system itself, those people are the people that he thinks are most deserving of mercy.

Greg Wolpert: Now, if you have a president or a governor who is so unwilling, sorry, who is so willing to use his power in this such a way, in a way that wasn’t necessarily intended by the Constitution’s framers, what could be done? I mean, should the president’s clemency power be modified or even abolished in some way?

Austin Sarat: I don’t believe so. What the courts have said about the president’s clemency power is that presidents can grant clemencies for a good reason or a bad reason or no reason at all. And the redress that we have against abusive uses of the clemency power, that redress is political, not legal. So the best remedy to ensure that a president doesn’t use his or her clemency power in an abusive way is found through the ballot box in choosing people whose judgments we trust, whose sense of propriety we respect. And really in a sense, the clemency power is a wonderful example of a power that can really only be controlled through the political process.

Greg Wolpert: Now finally, do you see any longterm consequences of Trump’s use of clemency, the way he has been applying it and to the kinds of people that he’s been applying it?

Austin Sarat: Trump is not the first president whose exercises of clemency have been controversial. That’s just the case. You go back to Bill Clinton. Clinton granted a pardon to someone named Mark Rich, who was one of his supporters, and there were allegations of corruption that surrounded it. There’s a lot of talk about clemency, but the talk about clemency tends to arise only in these situations where there is a controversial brand of clemency. You’ll seldom, if ever, hear a presidential candidate asked to explain the philosophy that they would bring to bear in their exercise of the clemency power. I don’t think that there is a remedy in particular that I would support. I think the ability of a president to have this broad clemency power in cases of abuse or miscarriages of justice is a very important one. I would not want to see it limited. The best protection against abuses of the clemency power is a vital, responsible and attentive exercise of democratic politics.

Greg Wolpert: Okay. Well, on that note, we’re going to leave it there. I was speaking to Austin Sarat, professor of jurisprudence and political science at Amherst College. Thanks again for having joined us today.

Austin Sarat: Thank you. Thanks for having me.

Greg Wolpert: And thank you for joining The Real News Network.

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Gregory Wilpert is Managing Editor at TRNN. He is a German-American sociologist who earned a Ph.D. in sociology from Brandeis University in 1994. Between 2000 and 2008 he lived in Venezuela, where he first taught sociology at the Central University of Venezuela and then worked as a freelance journalist, writing on Venezuelan politics for a wide range of publications and also founded, an English-langugage website about Venezuela. In 2007 he published the book, Changing Venezuela by Taking Power: The History and Policies of the Chavez Government (Verso Books). In 2014 he moved to Quito, Ecuador, to help launch teleSUR English. In early 2016 he began working for The Real News Network as host, researcher, and producer. Since September 2018 he has been working as Managing Editor at The Real News. Gregory's wife worked as a Venezuelan diplomat since 2008 and from January 2015 until October 2018 she was Venezuela's Ambassador to Ecuador.