Could Trump pardon family members and other close associates? His prior pardons may set the stage for more

David Jackson, John Fritze and Kevin Johnson, USA TODAY

WASHINGTON – President Donald Trump’s pardon for former national security adviser Michael Flynn last week could have been political dynamite in another era – a divisive use of clemency handed down on Thanksgiving eve in the twilight of a presidency.

Instead, the move drew only a smattering of reaction from congressional Democrats and silence from President-elect Joe Biden and most Republicans and was relegated to second-tier status on cable news networks by the end of the weekend.

As Trump weighs granting additional pardons to close associates – and perhaps family members and even himself – experts said he may not pay much of a political price, no matter whom the recipients are. The number of pardons with a political sheen Trump has signed – along with the unorthodox way he’s wielded the power – may have desensitized the public to the issue.

"The Flynn pardon is indefensible on every level, but people have come to expect nothing more from Donald Trump," said Neal Katyal, a legal analyst and former acting solicitor general during President Barack Obama's administration.

"There are very few days that go by where Trump hasn’t created a scandal that would undo a prior administration," he said. "After nearly four years, people are exhausted."

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Trump is far from the first president to grant pardons with political ramifications. In his final days in office, President Bill Clinton pardoned financier Marc Rich, brother Roger Clinton and Whitewater business partner Susan McDougal. President George H.W. Bush pardoned aides caught up in the Iran-contra scandal of the mid-1980s. President Gerald Ford pardoned Richard Nixon a month after Nixon resigned as president.

President Donald Trump granted a "full pardon" for ex-national security adviser Michael Flynn.
President Donald Trump granted a "full pardon" for ex-national security adviser Michael Flynn.

Trump has departed from the norm by serving up a stream of controversial pardons and commutations from the beginning of his term. The president granted his first pardon, in 2017, to former Arizona sheriff Joe Arpaio. The politically polarizing figure, who didn’t meet the Justice Department’s guidelines for a pardon, was convicted after defying a judge's order to release inmates suspected of immigration offenses.

Trump pardoned conservative writer Dinesh D'Souza a year later, a vocal supporter of the president who pleaded guilty in 2014 to violations of campaign finance law. In July, Trump commuted the sentence of Roger Stone, a longtime confidant convicted of lying to protect Trump's 2016 presidential campaign from an investigation into Russian election interference.

Miriam Krinsky, a former federal prosecutor and executive director of Fair and Just Prosecution, a group that advocates changes in criminal justice policy, said the "politicization" of the pardon process during the Trump administration has been "troubling."

"It is one of a host of areas where the guardrails need to be restored," Krinsky said, suggesting that one way to do that might be to hand the review process over to an independent entity.

Flynn, who served less than a month as Trump's top security adviser in the White House, pleaded guilty three years ago to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak after the 2016 election. Trump announced the pardon last week in a tweet.

The decision drew criticism from some Democrats, including House Speaker Nancy Pelosi, D-Calif., who described it as an “act of grave corruption.” Sen. Lindsey Graham, R-S.C., a close ally of Trump’s, praised the move, arguing Flynn was “the victim of a politically motivated investigation.”

While Biden did not address the Flynn pardon at the time, and transition aides did not respond to a request for comment, the president-elect did raise the issue of pre-emptive pardons in an interview on Thursday. Biden told CNN that "you’re not going to see in our administration that kind of approach to pardons" and added that he would not be making policy announcements on Twitter.

Broad power, divided nation

The reaction to Flynn’s pardon, though muted, underscored that the president’s broad clemency powers are increasingly viewed – like much else – along partisan lines: Democrats express outrage, and Trump’s supporters cheer. That division, several experts said, may partly explain why some Americans shrug their shoulders.

"He has a large and loyal base who will accept his explanation for his actions, which will likely be that he and the people he has pardoned did nothing wrong and need to be protected from the deep state,” said Brian Kalt, a law professor at Michigan State University.

Amid a pandemic that has killed more than 275,000 people in the USA, punishing unemployment and a constant stream of Beltway controversies, it's not likely the president's use of his clemency power is going to hold anyone's attention for long.

Still, Flynn’s pardon spun up speculation about additional pardons. Fox News personality Sean Hannity, a Trump ally, raised the prospect of Trump granting himself a preemptive pardon. Trump discussed whether to grant preemptive pardons to his children and lawyer Rudy Giuliani, The New York Times reported.

"Given Trump’s use of the pardon power thus far, you can expect him to go outside the box and grant many pardons in the upcoming days to those who are close to him, and perhaps to himself as well," said Renato Mariotti, a former federal prosecutor.

Giuliani flatly denied discussing a preemptive pardon with Trump.

Some White House watchers expect a flurry of pardons from Donald Trump in the final days of his presidency.
Some White House watchers expect a flurry of pardons from Donald Trump in the final days of his presidency.

Bypassing review

Trump has granted 29 pardons and issued 16 commutations, cutting short sentences.

That highlights another way Trump has used clemency powers differently than his predecessors: bypassing the usual review of applicants. Instead of arguing their case first at the Justice Department, where the Office of the Pardon Attorney considers clemency applications, friends and associates went straight to Trump or sought airtime on Fox News.

That practice sent a message to those seeking clemency.

Caroline Polisi, a lawyer for George Papadopoulos, a former Trump campaign adviser who pleaded guilty to lying to the FBI during the investigation into Russian interference in the 2016 election, said a pardon application was filed on behalf of her client, but the request was not made through the Justice Department.

Polisi did not elaborate.

"George’s case illustrates perfectly an unfortunate reality in the American criminal justice system, where the constitutional ideal of proving guilt beyond a reasonable doubt yields to practical realities," the attorney said.

Papadopoulos served 12 days in prison.

Biden indicated in his CNN interview that he would return the clemency application and review process to the Justice Department.

Keith Whittington, a Princeton University political scientist who has written on pardons, said Trump has stood out with controversial grants of clemency throughout his presidency.

“And it has been a general feature of his presidency that he has done so many unusual things that actions that might normally be controversial with any other president cause barely a ripple with Trump,” Whittington said. “It might just be the case that controversial pardons are baked into the Trump presidency like lots of unorthodox things are and don’t stir more than the usual partisan reactions.”

If so, Whittington said, Trump could face pushback from congressional Republicans during the lame duck period if some who are considering a run for president in 2024 decide that now is the time to draw a distinction between themselves and the president, who has signaled he could run again in four years. So far, they've said little about what Whittington described as Trump’s “post-election antics.”

This article originally appeared on USA TODAY: Trump's Flynn pardon prompts fears of politicization of sweeping power