Maybe it's time to revisit the debate on limiting presidential pardon powers

Maybe it's time to revisit the debate on limiting presidential pardon powers
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President TrumpDonald John TrumpGrassley: Dems 'withheld information' on new Kavanaugh allegation Health advocates decry funding transfer over migrant children Groups plan mass walkout in support of Kavanaugh accuser MORE was the subject of controversy again this week with his issuance of a controversial pardon to conservative commentator, Dinesh D’Souza. He also teased the idea of clemency for Martha Stewart, along with a potential sentence commutation for former Illinois Governor Rod Blagojevich.

D’Souza had pled guilty to and been convicted in Manhattan federal court of violating federal campaign election law and was sentenced to five years of probation for his fraud. D’Souza had been a frequent and unapologetic critic of former President Barack ObamaBarack Hussein ObamaNational security leaders: Trump's Iran strategy could spark war The Hill's 12:30 Report — Trump questions Kavanaugh accuser's account | Accuser may testify Thursday | Midterm blame game begins Dems look to Gillum, Abrams for pathway to victory in tough states MORE and Hillary ClintonHillary Diane Rodham ClintonGraham: There's a 'bureaucratic coup' taking place against Trump Fox News poll shows Dems with edge ahead of midterms Poll: Democrats in position to retake the House MORE.

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In March of 2004, Stewart was found guilty in the same federal court of obstructing justice and lying to investigators about a well-timed stock sale. Stewart served five months in prison.

 

The United States Attorney for the Southern District of New York who oversaw the investigation was James B. Comey.

Blagojevich was impeached and removed from his office in 2009 for attempting to “sell” the U.S. Senate seat of Barack Obama. The 40th Governor of Illinois was convicted by U.S. Attorney Patrick Fitzgerald — a personal friend of and current counsel to Comey — who also led the case, as a special prosecutor that saw Scooter Libby convicted.

Trump pardoned Libby last month.

In fact, Trump has begun pardoning folks with seeming reckless abandon at an early point in his tenure as president. For a president who eschews norms, he appears to relish the opportunity to settle old scores and continues to appeal to a conservative base that cheerleads his defiance of convention.

Is there any doubt that a celebrity-obsessed president like Trump might have a soft spot for characters like Blagojevich and Stewart — who both appeared on his television show, “The Apprentice?”

And understanding his disdain for Obama and Clinton — as well as the prosecutor in D’Souza’s case, Preet BhararaPreetinder (Preet) Singh BhararaBudowsky: If Dems win control of Congress The Hill's Morning Report: Trump’s allies turn against him The Hill's Morning Report — Battle lines drawn as Trump and Cohen dig in MORE, whom he fired — D’Souza’s pardon was yet another Trump shot across the bow at his critics and political enemies.

How else to explain the pardon of Arizona Sheriff Joe Arpaio, who had continually defied the Obama administration’s relaxed positions on immigration violations, and was a vocal supporter of Trump’s presidential bid.

Look to no less an authority on winning than Barack Obama, who once famously snarked this to Republicans in a closed-door meeting at the White House during the height of the economic stimulus debate, following his 2008 triumph:

“Elections have consequences. And at the end of the day, I won. So I think on that one I trump you.”

And with that, you can almost hear Donald Trump respond: “Hold my beer.”

Yes, as to the case of presidential pardons, to the victor goes the spoils. But though these pardons are the exclusive domain for a sitting president, are they righteous?

The Constitution clearly outlines these powers in Article II, Section 2, Clause I:

“The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

This power is considered by constitutional and legal scholars to be one of the least limited powers afforded to a president in the Constitution.

But even with more traditionally “measured” presidents, these powers have been abused.

In 1974, Gerald Ford pardoned his predecessor, Richard Nixon, following his resignation in the wake of the Watergate scandal.

Ronald Reagan took grief for pardoning two former FBI officials, W. Mark Felt and Edward S. Miller, who had been convicted of “conspiring to violate the constitutional rights of Americans” — essentially, they authorized “black bag jobs,” government break-ins of anti-war radicals’ homes and offices during the 1970’s.

This certainly wasn’t the height of fame for Felt. He would later be identified as the source known as “Deep Throat” in The Washington Post’s investigation into Watergate.

And who can forget Bill ClintonWilliam (Bill) Jefferson ClintonSexual assault is not a game — stop using women to score political points Trump, GOP regain edge in Kavanaugh battle Presidential approval: It's the economy; except when it's not MORE’s final-act pardons that included fugitive financier Marc Rich?

Of Clinton and his pardons, former FBI director Louis Freeh, in his 2005 tome, “My FBI: Bringing Down the Mafia, Investigating Bill Clinton, and Fighting the War on Terror,” described Clinton’s pardons process derisively:

“I look back now on the 177 pardons and commutations Clinton issued as the final act of his office, and I’m still stunned by the fact that neither the FBI nor the attorney general of the Department of Justice was ever consulted about a single one of them."

Freeh’s biggest fear? That Clinton, whom he described as “susceptible to the tug of the Hollywood crowd,” might be inclined to issue clemency to Leonard Peltier, who murdered two FBI special agents during a 71-day siege between federal agents and American Indian Movement (AIM) activists at Wounded Knee, South Dakota in 1973.

Clinton, to his credit, did not.

Obama was no stranger to controversy either. He granted clemency to more people than any president since Harry Truman. He made it his raison d'être to grant pardons to low-level drug offenders and those ensnared by the nation’s hopelessly ineffective “war on drugs.”

Just days before he left office in 2017, he provided a commutation to Chelsea Manning, a transgender Army private serving a 35-year sentence for leaking classified military secrets.

And of course who can forget his stupefying decision to pardon Oscar Lopez Rivera, who in the 1970’s led a Chicago-based domestic terror cell of the Armed Forces of National Liberation (FALN) that claimed responsibility for 120 bombings between 1974 and 1983.

If the premise behind presidential pardon powers is to right injustices and extend mercy to the deserving, all presidents can point to certain pardon decisions that exhibit just that. Trump’s decision to right an egregious wrong by issuing a clemency order for Jack Johnson, America’s first African-American heavyweight boxing champion is a sterling example of the purpose behind the constitutional provision, and a decision that provided justice, albeit 105 years late.

But though all presidents like to see their powers expanded and not curtailed, with the GOP owning the White House and both chambers of Congress, now would be an excellent time to lead on this issue.

As the party in power, see to it that an amendment is proposed. Not one that removes the president’s powers to wipe away the legal effects of an unjust conviction, but instead, provides a checks and balance on that power.

Include the attorney general, FBI director, the executive board of the International Association of Chiefs of Police (IACP), The Legal Aid Society’s attorney-in-chief, and the ranking members of the House and Senate Judiciary Committees for advice and counsel.

This would include political appointees of the president, members of the opposition party, and others who must maintain a discrete distance from the president and his cabinet.

Yes, elections do have consequences. But our system of justice is predicated on oversight and checks and balances. Every president in recent history seems to have fallen prey to profligacy that allowed ideological tendencies to pervade their clemency decisions.

Make haste. Let’s fix this before it gets worse.

James A. Gagliano is a CNN law enforcement analyst and retired FBI supervisory special agent. He also serves as an adjunct assistant professor at St. John's University and is a leadership consultant at the Thayer Leader Development Group (TLDG) at his alma mater, the United States Military Academy at West Point. Follow him on Twitter @JamesAGagliano.