Jurisprudence

Performative Pardons

Donald Trump is using presidential clemency to signal what laws he thinks matter—and which laws his friends can break with impunity.

Dinesh D’Souza speaks at CPAC in National Harbor, Maryland, on March 5, 2016.
Dinesh D’Souza speaks at CPAC in National Harbor, Maryland, on March 5, 2016.
Zach D Roberts/NurPhoto

Starting with the caveat that it is folly to impute three-dimensional-chess tactics to a man playing Hungry Hungry Hippos, Donald Trump’s decision to pardon Dinesh D’Souza, a man who began his political career outing gay students at Dartmouth and ended it with a conviction for campaign finance violations, sends all kinds of fascinating signals to anyone who likes to read signaling.

First and most obviously, by pardoning D’Souza, the president is signaling—and frankly, let’s just call it shouting aloud—to the Michael Flynns and the Paul Manaforts and the Michael Cohens in his world that Everyone in America Who Helps Donald Trump will eventually get a pardon. This is how he has previously deployed his pardon power, and it is not a complicated message when there are several people around you who are contemplating plea deals versus lengthy prison sentences.

And as Talking Points Memo’s Josh Marshall was quick to point out, by pardoning someone as usefully racist and homophobic as D’Souza, Trump is also winkingly letting America know that this sprawling tribe of conspiracy theorists and racists and provocateurs and misogynists and performers of casual hate will always have a champion in the White House. Solid.

None of this is difficult to discern, and none of this is terribly surprising. But with this specific pardon of D’Souza, the president is also signaling something consequential to the about 40 percent of the electorate who still believe him to be an important arbiter of legal truths: that campaign finance convictions are not real crimes. Much like sexual assault and racist policing, these are, in Trump’s view, fictional crimes that are only ever charged in bad faith and always by the “Obama administration.” With Michael Cohen currently on the hook for massive campaign finance misdeeds that may or may not implicate the president but that certainly make Michael Cohen’s life rather uncomfortable, the message is particularly timely: Redirecting dark money into the pockets of worthy Republicans isn’t just a not-crime, it is also warmly encouraged.

We tend to get confused by the sex parts, but—as the recent resignation of Gov. Eric Greitens reminds us—sex and violence are not what brings down campaigns. Dark money does. And by pardoning the funnelers and purveyors and slick hiders of that dark money, Trump is sending out another signal: He is letting the Koch Brothers and the Mercers and the good people who really do rely on being able to pay to play know that the store is open, and the game is still on; that they need not fear that legal witch hunts will get in the way of whatever it is they would like to see happen.

Not that they had much reason to worry before Thursday’s pardon. For years, the GOP has engaged in a systematic assault on America’s already feeble campaign finance system, attacking all restrictions on election spending in every way possible. Republicans supported the Citizens United litigation that led to the Supreme Court striking down limits on corporate electioneering. They participated in the successful lawsuit to invalidate a statute that limited the amount of money an individual could donate to congressional candidates each election cycle. And they have prevented Congress from passing laws to patch the gaps carved out by the Supreme Court, like expanding transparency around corporate expenditures.

The resulting patchwork of campaign finance laws is notoriously difficult to enforce—not that the Federal Election Commission, the federal agency tasked with the job, is actually trying. Since 2008, a trio of Republican appointees to the FEC has consistently thwarted any meaningful enforcement of our election-law regime. Banding together as a bloc, these commissioners have dropped fines, refused to investigate likely lawbreaking, and frozen the agency in a perpetual state of deadlock and dysfunction. (The ringleader of this trio? Don McGahn, current White House counsel.) These commissioners and their GOP successors have, for instance, prevented the FEC from looking into allegations of illicit political coercion in the workplace or sham corporations created to funnel dark money into elections. And under Trump, Republicans have allowed two seats on the six-member agency to remain vacant. That means that if one more appointee steps down, the agency could lose its quorum and cease operating in any meaningful capacity.

As a result, sanctions for campaign finance violations are rare enough that when they do strike, perpetrators (and Republicans) can always cry foul, asserting selective or arbitrary enforcement. They are correct that these prosecutions are relatively infrequent. But that is simply the result of the carefully coordinated GOP campaign to delegitimize them, a quest that now dovetails neatly with Trump’s own crusade for self-preservation.

While Trump’s pardon of D’Souza grows, in part, out of Republicans’ broader war on the fundamental legitimacy of campaign finance law, now is an opportune moment for the president to explicitly hop on that bandwagon. Investigations into his close allies keep centering around possible campaign finance violations in which Trump may have been complicit. By dismissing the prosecution of D’Souza’s illegal straw-donor scheme as somehow unfair and ideological, Trump is pardon-signaling, setting the table for a next round of campaign finance pardons. Presumably, Cohen is already at the top of the list.

Let’s also remember that, as CNN puts it, “the last three US Presidents—Bill Clinton, George W. Bush and Barack Obama—each waited more than two years after being elected to issue their first pardon.” After that, they typically relied upon recommendations by the Justice Department’s Office of the Pardon Attorney to ensure evenhanded relief and to show a coherent philosophy or set of priorities. There were deviations from this process, but the vast majority of individuals pardoned by each president fit widely accepted guidelines for clemency.

Seven months into his presidency, by contrast, Trump used his pardon power on Joe Arpaio to make clear what kinds of convictions he deems “unfair.” Thursday’s announcements of Trump’s possible future pardons further clarify the crimes the president is interested in excusing: obstruction of justice, perjury, making false statements to investigators (Scooter Libby, Martha Stewart), criminal contempt of court (Arpaio), and also corruption, fraud, and extortion (Rod Blagojevich). Add the D’Souza pardon for campaign finance violations, and it’s quite a picture. As Asha Rangappa wryly noted, “Someone gave him a list of all the possible charges he’s going to face and he’s finding celebrities convicted of them to pardon. #consciousnessofguilt.” It doesn’t hurt that some of these faces have the added benefit of being members of the Apprentice franchise. Who better to pardon than the reality-television cohort that is so in need of extra-judicial solicitude?

Then of course, there’s the added bonus of being able to erase convictions secured by James Comey, Preet Bharara, and other members of Trump’s enemies list. Tally it all up, and you have the whole package: Corruption is OK, friends of Trump are OK, Pardons for All, and also anyone whom Trump considers a member of Team Witch Hunt is undermined and punished. The presidential pardon has long been the highest expression of the animating Trump legal theory—that he and only he decides what the law is, and who breaks it. These more recent examples are outrageous but unsurprising. These particular pardons aren’t the result of group efforts by his DOJ, they are performances of L’etat c’est moi that consolidate public opinion and legal decision-making around one man’s legal worldview.

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