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How does Trump decide his pardons? Critics say it’s based on gut feeling

President Trump.
President Trump.JIM WATSON/AFP/Getty Images

WASHINGTON — As President Trump pondered whether to issue a pardon to conservative filmmaker Dinesh D'Souza, who pleaded guilty in 2014 to campaign finance violations, he applied his own particular set of standards.

"It was all about compassion," recalled Alan Dershowitz, the Harvard Law professor emeritus who said he discussed a possible D'Souza pardon with Trump nearly two months ago. Dershowitz said Trump peppered him with questions: "Do you think he deserved it? Is he a good guy? And do you think he was treated unfairly?"

The president evidently liked what he heard from Dershowitz and others, and on Thursday jolted Washington by announcing a pardon for the right-wing provocateur. The decision fit an emerging pattern of Trump pardoning conservative figures, creating an appearance of political favoritism in the exercise of a potent presidential power.

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Trump previously pardoned Joe Arpaio, the Arizona sheriff found guilty of contempt of court for his refusal to stop racial profile stops, and Scooter Libby, who was chief of staff to former vice president Dick Cheney and was convicted of perjury and obstruction of justice in a leak investigation.

Later Thursday, talking to reporters traveling with him to Texas, Trump set off another blast of criticism when he floated the idea of pardoning lifestyle guru Martha Stewart, who lied to the FBI during an insider trading investigation, and commuting the corruption-related prison sentence of former Illinois governor Rod Blagojevich, a Democrat. Both have ties to Trump through his former career as a reality TV star.

President Trump has floated the idea of commuting the corruption-related prison sentence of former Illinois governor Rod Blagojevich, a Democrat.
President Trump has floated the idea of commuting the corruption-related prison sentence of former Illinois governor Rod Blagojevich, a Democrat.M. Spencer Green/Associated Press/File 2012/Associated Press

The pardons Trump has issued, and the two he just discussed, are revealing a process that appears arbitrary and based more on gut feeling than following any legal theory, critics say. The lack of a clear methodology, they said, sends a message that Trump has little respect for his own Department of Justice, which typically vets pardons, and raises questions about whether he's using his constitutional authority to dole out political favors or send political messages to friends and foes under investigation.

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Dinesh D’Souza is known for praising the 9/11 terrorists as “warriors,” producing critical films about Barack Obama and Hillary Clinton, and peddling conspiracy theories.
Dinesh D’Souza is known for praising the 9/11 terrorists as “warriors,” producing critical films about Barack Obama and Hillary Clinton, and peddling conspiracy theories.Alberto E. Rodriguez/Getty Images/File 2014

"He's behaving like a king and basically handing out pardons like candy to his friends," said Roy Austin, a former Justice Department attorney during the Obama administration. "It's consistent with his complete and total failure to be constrained by the rule of law. . . . It's embarrassing to the country."

The White House issued a statement Thursday explaining the D'Souza pardon by saying he was "a victim of selective prosecution for violations of campaign finance laws." D'Souza is known for praising the 9/11 terrorists as "warriors," producing critical films about Barack Obama and Hillary Clinton, and peddling conspiracy theories.

Conservatives rejoiced. "Bravo!" said Senator Ted Cruz of Texas on his Twitter feed. "Dinesh was the subject of a political prosecution, brazenly targeted by the Obama administration bc of his political views. "

Trump also offered a haphazard rationale for additional pardons. He said Blagojevich is spending "18 years in jail for being stupid and saying things that every other politician, you know that many other politicians say." Blagojevich was convicted for soliciting bribes, and his prison sentence was 14 years.

Trump continued: "I think to a certain extent Martha Stewart was harshly and unfairly treated. And she used to be my biggest fan in the world . . . before I became a politician." She was convicted on securities fraud charges.

Of the five pardons Trump has issued to date, only one has been vetted by the Justice Department's office of the pardon attorney, according to Nicole Navas, a spokeswoman for the Justice Department. Trump has so far commuted one prison sentence, that of a kosher meat packing executive convicted of fraud; Navas said the executive did not have a pending clemency petition with the Department of Justice.

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During the Obama administration there was a formal policy for pardons and commutations. Applicants had to file papers with the office of the pardon attorney, which would make recommendations to the deputy attorney general. If that official agreed, the pardons would be sent to the White House, where they'd be reviewed again by the White House counsel's office before being cleared for presidential consideration.

Most of the people Obama pardoned were convicted of nonviolent drug offenses and were serving long prison terms under mandatory sentencing rules.

The Constitution affords presidents broad powers in granting clemency, and even Trump's critics agree that he's well within his rights to extend pardons. He can only pardon federal offenses and he's not allowed to pardon an official facing impeachment.

But Austin, the former Obama Justice Department official, said the pardon is traditionally reserved for righting an injustice or as a reward to those who've reformed their lives.

"He's doing favors for friends. That's not the way it's supposed to be done," Austin said.

Trump's most controversial use of the pardon was his decision to provide clemency to Arpaio, the former sheriff.

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"The larger message is that he doesn't care what the Department of Justice does or says," said Austin, who worked on the Arpaio prosecution.

Other presidents have issued controversial pardons. Obama was pilloried for commuting the sentence of Chelsea Manning, the Army intelligence officer who sent thousands of documents to WikiLeaks. Former president Bill Clinton was criticized for pardoning Marc Rich, a financier accused of tax evasion. His ex-wife was a major donor to Clinton causes.

Those pardons came strategically at the end of Obama's and Clinton's terms in office. Trump is issuing the pardons early in his term.

"It strikes me that this is like if a random person became president and said: 'This is kind of cool. What people could I pardon?' " said Andrew Rudalevige, a political science professor at Bowdoin University who studies how presidents use power.

Rudalevige also saw something potentially more nefarious in Trump's pardons, arguing that the president might be trying to normalize the use of such power so it wouldn't seem as jarring should he want to pardon people with close ties, like Paul Manafort or Michael Flynn.

"He's issuing enough pardons that any future pardons will seem unremarkable," Rudalevige said.

Dershowitz, who has had at least two conversations with Trump about clemency, said the president is largely guided by fairness.

Dershowitz had long argued that D'Souza was singled out for prosecution because of his political views. He said Trump asked him about the pardon when he visited the White House on April 10 for a dinner, and said he was supportive.

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“Scooter” Libby was convicted of obstruction of justice and perjury related to leaking the name of a CIA agent.
“Scooter” Libby was convicted of obstruction of justice and perjury related to leaking the name of a CIA agent.Mark Wilson/Getty Images/file 2007

Trump also asked Dershowitz to weigh in on a possible pardon of Libby, who was convicted of obstruction of justice and perjury related to leaking the name of a CIA agent.

"I thought that the Scooter Libby case was appropriate," Dershowitz said.

Dershowitz said he also played a role in Trump's decision to commute the 27-year prison sentence of Sholom Rubashkin, the Iowa meat-packing executive who was convicted on bank fraud charges.

Dershowitz said he was wrapping up a lunch with Trump that was focused on Middle East peace, when Trump asked if there was anything else on his mind.

"I took advantage of the moment," Dershowitz said.


Annie Linskey can be reached at annie.linskey@globe.com.