Thursday, July 13, 2017


Political Mayhem Thursday: The specter of bad clemency

For several months now, no one has called me from the press with questions about clemency, and that is because clemency hasn't been in the press since Obama left office. I have a hunch that this is going to change in the next several months.

Things are getting sticky for a lot of people in the Trump administration as the Russia revelations continue to roll out and we see headlines like Paralyzed by Chaos at Home, Trump Sets Off for Paris. Many of the major players in the administration have wisely hired lawyers to handle their relationships with investigators.  

Here is the thing: pretty soon, some of those major players will either be offered or will seek out cooperation deals with the government. That's because a key tool of investigators is "flipping" co-conspirators to testify for the government in exchange for a break at sentencing. This mechanism, in fact, is built right into the federal sentencing guidelines, which offers benefits to people who offer "substantial assistance" to the government.

Usually, it's very affective. There is one big twist here, though.

Once those people flip and stand ready to testify for the government in order to avoid or reduce their own prison time, Donald Trump can use the pardon power to grant them clemency-- that is, remove the possibility of prosecution and sentencing for those potential witnesses. That means the prosecutors no longer will have a hammer over them, and those potential witnesses can avoid cooperating without suffering consequences.

If that happens, it will be a travesty and a return to the horribly unprincipled use of the pardon power under Bill Clinton and George W. Bush to reward their friends and supporters (though with a new and sickening twist).  

Lost will be the turn we made towards the principled use of clemency under President Obama. In the broad scope of things, that will be a significant loss indeed.

Congressional Republicans, House and Senate, should tell Trump that they will consider any clemency for insiders in the administration to be an obstruction of justice, and will vote to impeach him if he does it.
I love it every time someone referencing the conspiracy law, and substantial assistance - thank you, Mr. Osler - you are the best! An interesting concept worth keeping an eye on at OPA
Can one be offered clemency before they have been charged and prosecuted?
Christine- Nixon did!
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