News that President Donald Trump has pardoned two cattle ranchers who committed arson on public lands should alarm anyone who is committed to our legal institutions, particularly federal law enforcement.
On Tuesday, Trump pardoned Dwight Hammond Jr. and his son Steven Hammond, who were convicted for arson on public lands in 2012. Following their convictions, they were sentenced to three months and 12 months in prison, despite facing statutory mandatory-minimum sentences of five years. The government prevailed on appeal and the Hammonds were re-sentenced to the mandatory-minimum of five years. Both men were sent back to prison to complete their sentences in 2016. Their return to prison inspired the 41-day occupation of a national wildlife refuge and standoff with law enforcement in Oregon in 2016, part of a longstanding dispute between ranchers and the federal government over land use in the West.
This pardon follows those Trump has granted to conservative author Dinesh D’Souza and former Arizona Sheriff Joe Arpaio, among others. All of these pardons are part of a disturbing trend. D’Souza was convicted by guilty plea in 2014 for violating campaign finance laws by making illegal contributions to a Republican Senate candidate. Arpaio was convicted of contempt of court in 2017 for failing to comply with a judge’s order to stop violating the civil rights of individuals suspected of being in the United States illegally. In exercising his pardon power, Trump has repeatedly ignored the process and substance of Department of Justice policy.
A pardon is considered a show of mercy and forgiveness. The U.S. Attorney’s Manual sets out the standards for granting a pardon. The factors for consideration include post-conviction conduct, character and reputation, seriousness and recentness of the offense, acceptance of responsibility, remorse and atonement, need for relief, and recommendations from the prosecutor and judge who handled the case. The pardon process is not intended to reverse a finding of guilt. According to the U.S. Attorney’s Manual, applicants “seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.”
Trump seems to be ignoring these factors, and instead looking for cases where he can score points with his political base. In the case of the Hammonds, White House Press Secretary Sarah Huckabee Sanders focused not on the policy factors, but on “conflicting” testimony at trial, and what she described as “overzealous appeal” by the prior administration in simply seeking enforcement of the applicable sentencing statute.
Under DOJ policy, a pardon is “granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence,” which requires him to wait “at least five years after conviction or release from confinement (whichever is later),” though the Department may waive the waiting period. The Office of the Pardon Attorney will assess the person’s ability to lead a “responsible and productive life” by studying the person’s post-release employment, family responsibilities, community service, reputation in the community and military service. In the case of the Hammonds and Arpaio, Trump did not wait any time at all for the defendants to demonstrate good conduct outside of prison. The Hammonds were pardoned before their release, and Arpaio was pardoned even before he was sentenced.
Another factor under the DOJ pardon policy is the petitioner’s remorse. The U.S. Attorney’s Manual states that a “petitioner should be genuinely desirous of forgiveness rather than vindication.” In the case of D’Souza, Trump granted a pardon not because of D’Souza’s desire for atonement or demonstrated good conduct for a substantial period of time, but because, according to Trump, he “was treated very unfairly by our government.” Showing no remorse whatsoever on the day his pardon was announced, D’Souza instead tweeted insults at Preet Bharara, the former U.S. Attorney for the Southern District, whose office prosecuted him, stating, “KARMA IS A BITCH.”
I served as a federal prosecutor, and we received requests from the Office of the Pardon Attorney from time to time for input on pardon applications. We carefully reviewed the file and provided feedback on the pertinent issues such as the seriousness of the offense and other facts that might not appear in the petitioner’s own application. The Office of the Pardon Attorney also sought the views of the judge who handled the case and imposed the sentence. Although my colleagues and I did not always agree with the ultimate decision of the pardon attorney or the president, we accepted that reasonable minds can disagree about the application of the facts to the policy standards because the cases were fully vetted by career professionals, and the policy was honored.
Now, instead, the president is granting pardons without consulting with the prosecutors and judges or even with the Office of the Pardon Attorney. Although the Constitution permits the president to go it alone, this process can lead to an arbitrary exercise of power, and a lack of uniformity around the country. What criteria is Trump using to decide whether to grant a pardon? Must the petitioner be well-connected to a celebrity or part of a cause célèbre by the right? How do the other 10,000 applicants waiting for clemency get the attention of the president if he bypasses the usual process at the Office of the Pardon Attorney?
Certainly, pardons have received criticism in the past for being politically motived. President Gerald Ford’s pardon of Richard Nixon and President Bill Clinton’s pardon of Marc Rich were greeted with allegations of political motivations. But Trump’s use of the pardon to fire up his political base strikes one more blow against our legal institutions. The pardon of the Hammonds, in particular, sends a message that militia groups who are hostile to the federal government may aggressively and dangerously defy the law and Trump will protect them.
And combined with the other pardons, this is yet another blow to those who work to enforce the law.