BREAKING NEWS : Fort Wayne police make arrest in killing of James Hines on Lewis Street Full Story

Why Paul Manafort would have reason to hope for a Trump pardon

At Paul Manafort's trial, his lawyers took the unusual step of ...

Posted: Aug 18, 2018 2:51 PM
Updated: Aug 18, 2018 2:51 PM

At Paul Manafort's trial, his lawyers took the unusual step of not calling any witnesses for the defense, setting off speculation that Manafort is relying on the prospect of a presidential pardon. Friday morning, President Trump refused to address whether or not he would take such a step but he did say, "he happens to be a very good person. I think it's very sad what they've done to Paul Manafort."

President Trump's use of the pardon power since he took office makes a pardon for Manafort, should he be convicted, quite plausible, but equally troubling. The jury has completed its second day of deliberations without a verdict in what is the first of the two trials Manafort is facing.

Continents and regions

Donald Trump

Eastern Europe

Europe

Government and public administration

Investigations

Paul Manafort

Political Figures - US

Politics

Russia

Russia meddling investigation

Amnesty and pardons

Crime, law enforcement and corrections

Criminal law

Government bodies and offices

Law and legal system

US federal government

White House

Unlike recent presidents, President Trump has avoided the Department of Justice's mechanism for vetting pardons and has explicitly injected politics into the process. American history shows that political pardons aren't necessarily a problem. But the political message sent by President Trump's pardons is.

Many people are uncomfortable with Trump's pardons because recent presidents have avoided such blatant politicization of the power. They have instead pardoned for reasons of fairness or because the recipient had reformed.

Moreover, the process is set up to discourage the President from pardoning for political reasons. The Office of the Pardon Attorney is a relatively neutral bureaucracy established to assist the President with the exercise of executive clemency. The Pardon Attorney and his or her staff assess the merits of individual applications and submit recommendations to the President.

During recent presidencies, the vast majority of pardons have proceeded through this route. When exceptions occurred, they occasioned public opprobrium and calls for investigation. This was the case with President Bill Clinton's pardon of financier Marc Rich during his last hours in office.

Trump has upended the normal model. His recent pardons of Dwight and Steven Hammond, the Oregon ranchers convicted of arson for setting fires that burned more than 100 acres of federal land, was only the latest instance of his political use of the pardon power.

Last year, Trump issued a similarly controversial pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio, pardoned Dinesh D'Souza for violating campaign finance law, and he has touted his ability to pardon even himself. In fact, political pardons are the only kind he has given.

In Trump's defense, earlier presidents had forcefully deployed the political potential of the pardon power. At the very beginning of the Republic, President Washington used a combination of force and mercy to stem the Whiskey Rebellion.

Farmers in Western Pennsylvania had resisted imposition of a tax on the production of whiskey, their principal export, and their opposition turned violent. Washington, aided by Alexander Hamilton, led troops into the area in 1794. When some of the rebels were then prosecuted and sentenced to death, Washington pardoned them, proclaiming, "The misled have abandoned their errors."

Similarly, in the aftermath of the Civil War and President Lincoln's assassination, President Andrew Johnson pardoned many members of the former Confederacy. His eagerness to restore rights to these individuals without what many saw as sufficient concessions on the recipients' parts led to increasing conflict with Congress. Although Congress had initially supported amnesty, it withdrew its backing in an 1870 statute, setting up the conditions for a constitutional conflict. In United States v. Klein (1871), the Supreme Court held that Congress could not restrict the scope of a presidential pardon as it had attempted to do.

Supporters of President Trump would be right to conclude that the political use of the pardon power has precedent in American history. However, close examination of this precedent reveals a gulf between Trump's political use of pardoning and that favored by Washington and Johnson.

For those two presidents, pardoning represented a technique of transitional justice, reintegrating rebels who had fought against the federal government while acknowledging their defeat. While the Hammonds' acts both resulted from and encouraged resistance to federal control over Western lands, Trump's pardon signaled not the defeat of their position but the President's willingness to cede environmental protection of federal lands.

Trump's other pardons have similarly created political exceptions to the rule of law that support his own views rather than representing a magnanimous offer of clemency in service of collective peace.

Using the pardon power in this manner calls to mind Nazi jurist Carl Schmitt's statement that "Sovereign is he who decides on the exception." In other words, whoever declares that the rule of law doesn't apply at the same time announces himself as the highest power in the state. This idea was used to justify the grant of emergency powers to the German President under Article 48 of the Weimer Constitution, enabling Hitler's rise to power.

While Schmitt's writings focus less prominently on pardoning, the power to pardon, in Article 49 of the Weimer Constitution, was structurally similar to the power to declare an emergency under Article 48. Both enabled an exception from the rule of law, an exception that revealed the true location of sovereignty within the state.

By adding a pardon of Manafort to the ones he has already performed, Trump would confirm the fears of those who have been suspicious of his exercise of the pardon power. Trump has intuited the force of the pardon as exception and, in pardoning Manafort, would be using it to declare himself sovereign and his associates above the law.

Indiana Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 118322

Reported Deaths: 3591
CountyConfirmedDeaths
Marion21502767
Lake10688323
Elkhart6707111
St. Joseph6619113
Allen6330205
Hamilton4938109
Vanderburgh378131
Hendricks2766124
Monroe265536
Tippecanoe256613
Johnson2352124
Clark225957
Porter219947
Delaware200162
Cass19559
Vigo186827
Madison170375
LaPorte149141
Floyd139664
Warrick138242
Howard132663
Kosciusko125917
Bartholomew118457
Marshall101524
Dubois99919
Boone99146
Grant95134
Hancock94643
Noble93132
Henry81226
Jackson7739
Wayne77014
Morgan73438
Daviess68028
Shelby68029
Dearborn67528
LaGrange64011
Clinton62314
Harrison59224
Putnam58411
Gibson5355
Knox5289
Lawrence51629
Montgomery51121
DeKalb48811
White48714
Decatur45939
Miami4394
Greene42735
Fayette42313
Jasper4012
Scott39011
Steuben3907
Posey3460
Sullivan33812
Jennings31612
Franklin31325
Clay3085
Ripley3078
Orange28824
Whitley2826
Carroll27813
Adams2763
Wabash2728
Starke2717
Washington2701
Wells2674
Spencer2633
Jefferson2503
Huntington2473
Fulton2442
Tipton22822
Randolph2238
Perry22113
Jay1920
Newton17411
Owen1711
Martin1680
Pike1641
Rush1574
Vermillion1310
Fountain1292
Blackford1213
Pulaski1141
Crawford1100
Parke1072
Brown1043
Benton870
Ohio797
Union790
Switzerland690
Warren411
Unassigned0226

Ohio Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 151802

Reported Deaths: 4746
CountyConfirmedDeaths
Franklin27119607
Cuyahoga17554656
Hamilton13237315
Montgomery7938164
Lucas7343364
Butler6085111
Summit5366252
Warren311549
Marion311147
Mahoning3095281
Stark2913175
Pickaway267944
Lorain233386
Delaware230621
Fairfield213253
Licking194963
Columbiana194080
Wood192172
Trumbull1916132
Clark183940
Clermont174423
Lake164851
Greene149034
Medina147539
Miami146351
Allen146269
Portage116866
Mercer113218
Erie95947
Tuscarawas94120
Wayne94068
Richland92219
Ross89624
Madison84312
Darke80643
Geauga72649
Athens7242
Belmont72427
Hancock72010
Lawrence67122
Ashtabula66048
Shelby66010
Putnam61923
Auglaize6119
Sandusky58020
Huron5557
Union5512
Scioto5167
Seneca48814
Ottawa47130
Preble44515
Muskingum4383
Holmes3959
Jefferson3384
Henry33414
Defiance33012
Champaign3133
Logan3133
Clinton30213
Perry3009
Brown2922
Knox28815
Washington26223
Jackson2616
Morrow2612
Fulton2591
Hardin25713
Crawford2476
Ashland2464
Coshocton23411
Fayette2336
Highland2303
Williams2143
Wyandot21312
Pike2020
Gallia19613
Meigs17610
Guernsey1738
Hocking1679
Carroll1527
Adams1364
Van Wert1243
Monroe11018
Paulding1100
Harrison643
Morgan500
Vinton473
Noble340
Unassigned00
Fort Wayne
Overcast
59° wxIcon
Hi: 62° Lo: 46°
Feels Like: 59°
Angola
Overcast
57° wxIcon
Hi: 62° Lo: 46°
Feels Like: 57°
Huntington
Scattered Clouds
58° wxIcon
Hi: 62° Lo: 47°
Feels Like: 58°
Decatur
Scattered Clouds
55° wxIcon
Hi: 63° Lo: 46°
Feels Like: 55°
Van Wert
Scattered Clouds
55° wxIcon
Hi: 64° Lo: 45°
Feels Like: 55°
Few Showers Wednesday
WFFT Radar
WFFT Temperatures
WFFT National

Community Events