abuse of pardon power, Arpaio pardon, Clemency Initiative, Marc Rich pardon, Obama clemency, pardon as impeachable offense, pardon power
In a series of posts over the past week, I argued that Mr. Trump’s pardon of former Arizona sheriff Joe Arpaio constituted an impeachable offense. This suggestion has drawn a variety of responses, some of them printable on a family-oriented blog, and others not so much.
A common theme among those resistant to my thesis was to ask, “Well, what about President Clinton’s pardon of Marc Rich?” Or, “What about President Obama’s pardon of all those drug dealers?” The easy response to this sort of question is simply to ignore it as “what-about-ism” — the tendency on both sides of the political spectrum to deflect attention from the misdeeds of one’s own leaders by pointing to allegedly equal misconduct by the leaders of the other side.
Taking “What-about-ists” seriously
But in some cases, what-about-ism, though intellectually lazy, raises issues that deserve a serious response. The best method of determining if there is a real argument lurking behind the laziness begins by turning the question back on the What-about-ist, and asking him, “Well, what about it?” In other words, what implication would you have me draw from the past event to which you are comparing the present event I’m analyzing?
If one can draw a What-about-ist this far into a dialogue, the response will customarily take one of two forms.
Either the What-about-ist will say that the past act by someone on your “side” (for example, a Clinton pardon or Obama sentence commutation) was no different in kind than the current act by someone on his “side” (Trump’s Arpaio pardon), and thus the fact nothing was done to the person on your “side” (Clinton and Obama were not impeached and removed from office) proves that what the person on his “side” did is perfectly fine. Or the What-about-ist will tacitly concede that, although the current act by someone on his “side” might have been questionable, the fact that someone on your “side” did something comparable in the past and you didn’t complain about it at the time makes you a hypocrite.
A sophisticated What-about-ist might go further and maintain that the lack of past complaints or concrete action against someone on your “side” creates what lawyers would call an “equitable estoppel” — that is, having failed to complain about fouls by someone on your team, you can’t complain about the same foul by someone on theirs.
Note that for any of these arguments to succeed, even as rhetorical weapons, the past act raised by the What-about-ist has to be genuinely comparable to the present sin under discussion. If the past event raised by the What-about-ist turns out to be quite different than the present sin, then the What-about-ist’s argument collapses.
Of course, even where the present and past cases are comparable, most what-about-ist arguments are nothing more than diversions. It obviously won’t do to say, “Since your guy committed murder and got away with it, my guy should be able to murder, too.” But sometimes an apparently shallow what-about-ism raises authentically important questions. This is particularly true where the core of the dispute is about acceptable legal or political norms.
Impeachment is a classic example. Other than treason and bribery, the constitution does not list the particular behaviors that constitute an impeachable offense. Article II, Section 4 speaks of “high crimes and misdemeanors,” but the meaning of those terms has been debated for over two centuries. Therefore, when considering what should count as an impeachable offense for a president, it is reasonable to examine past presidential behavior of the same general type to determine: (a) if it really is comparable to the current supposedly impeachable behavior, and (b) whether the past and current behavior conforms to law and constitutional norms of presidential action.
So let’s examine President Obama’s use of the pardon power.
Obama’s sentence commutations for drug offenders
President Obama granted some form of executive clemency to 1927 federal defendants. Of these, only 212 were outright pardons, which effectively wipe out the criminal conviction and all its civil and criminal consequences. The remainder were not full pardons, but sentence reductions called “commutations” that also come within the president’s Article II, Section 2 authority to grant “reprieves and pardons.” Virtually all the commutations were issued as part of an official U.S. Justice Department “Clemency Initiative” directed at non-violent drug offenders at low risk of recidivism who would have received lower sentences today than when they were originally sentenced because of later changes in harsh drug laws. Priority was given to inmates who had already served at least ten years in prison. The task of identifying candidates for clemency was shared by two units of the Justice Department, the Office of the Pardon Attorney and the U.S. Bureau of Prisons, aided by volunteer lawyers coordinated by the Clemency Project 2014, which was a joint undertaking of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums. In total, more than 24,000 offenders petitioned for relief under the program, and President Obama commuted the sentences of 1,696.
Although the federal judiciary maintained official silence, the DOJ Clemency Initiative enjoyed broad support among judges, many of whom have long been critical of lengthy quantity-based mandatory drug sentences. Likewise, the U.S. Sentencing Commission, which has always opposed lengthy mandatory sentences and has in recent years passed a series of guidelines amendments reducing guidelines sentences for many drug offenses, recently issued a report on the effect of the Obama commutations that remains studiously neutral on its face, but exudes disappointment that the Clemency Initiative did not produce more commutations. The Clemency Initiative drew sharp criticism from some House Republicans, but enjoyed nearly universal approval among Democrats and widespread tacit approval from many Republicans as one stop-gap method of ameliorating overlong mandatory sentences in the interim until Congress could agree on comprehensive statutory reform.
Consider the differences between the Obama clemency initiative and the Arpaio pardon:
First, the Obama clemency grants were not full pardons. Their recipients did not have their convictions voided and they remain subject to all the civil disabilities (like loss of voting rights or eligibility for aid programs) that dog ex-offenders in many states. Moreover, those receiving clemency had already served some portion of their sentences, often many years. By contrast, Mr. Trump gave Arpaio a full pardon, and did so in advance of sentencing. Hence, Arpaio will never suffer any incarcerative punishment and will never lose any civil rights for having a felony conviction.
Second, the Obama clemency grants were the product of an official Justice Department program, sanctioned by the Attorney General and operated through regular administrative channels pursuant to internal rules and procedures and subject to multiple layers of review. Moreover, the clemency process was facilitated with the active and enthusiastic participation of the organized American bar. By contrast, the Arpaio pardon was not awarded as part of any program, and was not vetted by the Justice Department or recommended by the U.S. Pardon Attorney. It was instead a personal whim of the President undertaken, according to published reports, only after Mr. Trump was told by Attorney General Sessions that trying to short-circuit Arpaio’s sentencing by ordering DOJ to drop the case would be inappropriate.
Third, the Obama clemency grants were part of a broad bipartisan shift in criminal justice policy toward de-emphasis of lengthy incarceration, particularly for non-violent drug offenders. By the time of the DOJ Clemency Initiative, this shift had already manifested itself in congressional enactment of new statutes and U.S. Sentencing Commission amendments to sentencing guidelines lowering sentences of many federal drug defendants. A primary objective of the clemency program was to afford relief to defendants sentenced before the effective dates of these ameliorative amendments who would otherwise receive no benefit from them. By contrast, the Arpaio pardon was not part of any policy initiative. It was a reward to a political supporter.
Fourth, the Obama clemency grants did not undermine the authority of the judges who originally imposed the sentences Obama commuted, or the authority of the judiciary generally. The clemency grants did not void the judgments of conviction entered by those judges or restore to the clemency beneficiaries any rights or privileges forfeited due to the conviction. All Obama did was to reduce the sentences of beneficiaries to levels consistent with current law. In many cases, indeed, the clemency grants had the effect of imposing sentences commensurate with what judges would have done had their discretion not been limited by mandatory sentences. By contrast, the Arpaio pardon undermined the authority both of the judge who was about to sentence Arpaio and of judges generally. Not only did Arpaio escape any punishment for his repeated, flagrant, and notorious violations of federal court orders, but the pardon sent the message that those who support Mr. Trump politically can ignore the lawful orders of the federal judiciary.
This is not to say that no one objected to President Obama’s clemency program. Some Republican congressmen did. But mere disapproval of a presidential pardon by some officeholders in another branch neither voids the pardon nor renders it an abuse of authority meriting impeachment. The most credible argument advanced by Republican critics was that the Obama clemency program encroached on legislative prerogatives by lowering sentences below levels that Congress had previously mandated by statute, not just for one or two offenders, but for a large number of persons. This was not a wholly frivolous complaint. But its force was greatly diminished by the fact that Congress itself had recently passed statutes, and the Sentencing Commission had adopted with congressional approval guidelines amendments, the effect of which was to grant the same type of relief to thousands of defendants who happened to have committed their crimes more recently. Congress could kvetch that Obama should have waited for additional legislation giving retroactive relief to older cases or additional relief to more defendants, but it could hardly claim that the clemency initiative was fundamentally at odds with the direction of its own recent actions.
Moreover, historically, the scale of Obama’s use of his clemency authority was not that impressive. Since 1900, Obama ranks only fifth among presidents for total pardons and commutations. As for outright pardons, he issued fewer (212) than any president other than the two Presidents Bush. And these rankings don’t even count the thousands of Vietnam-era draft law violators given a blanket pardon by President Carter.
In short, President Obama’s commutations of drug sentences bear no resemblance to Mr. Trump’s pardon of Arpaio. Mr. Obama acted deliberately and in collaboration with criminal justice authorities and experts in and outside of the executive branch to award carefully calibrated sentence reductions to a subset of persons otherwise unable to obtain sentence relief under recent changes of the law. Mr. Trump ignored all advice from inside and outside the criminal justice organs of the executive branch, and acted both precipitously and alone to protect a political ally and consciously undercut the authority of the federal judiciary to protect the civil liberties of disadvantaged minorities.
Clinton’s pardon of March Rich
I covered President Clinton’s pardon of fugitive financier Marc Rich in an earlier post. I agreed that the Rich pardon was reprehensible and, quite plausibly, an impeachable offense (albeit one rendered moot by the fact that it was issued on the last day of Mr. Clinton’s term). In short, the fact that Mr. Clinton behaved disgracefully, but got away with it by waiting to the last minute to place one last smudge on his deservedly tarnished legacy, provides no reason to excuse Mr. Trump.
In the end, what-about-ist responses to the Arpaio pardon have no heft. Indeed, comparing the Arpaio pardon to the supposedly outrageous examples of yore serves primarily to illustrate how greatly Mr. Trump deviated from acceptable historical norms.