Donald Trump and his business entities profited from his time in the White House more than any president in the history of the nation. If the accounting of Trump’s presidential windfall is to be complete it must include a revenue stream that hasn’t gotten much attention. In Trump’s inimical and corrupt way he was able to turn the presidential pardon into a lucrative source of money. Trump also flouted the rules and norms surrounding the presidential pardon in a way never before seen.
The Constitution gives the President “the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” It is silent about, and therefore, does not prohibit the president’s pardoning power from extending to those convicted of federal crimes on behalf of and/or in conspiracy with the president. As we all know Trump pardoned several loyal members of his gang including among the most notable recipients Paul Manafort, Roger Stone, and Steve Bannon. To be specific, under the Constitution only federal convictions, military court martial decisions and convictions in Washington, D.C. are eligible for presidential clemency. These include pardons or full forgiveness of crimes, commutations or the merciful reduction of sentences, and reprieves or the temporary stay of a sentence.
To be considered for clemency applicants submit a notarized petition to the Office of the Pardon Attorney in the Department of Justice. The rules “tell pardon seekers to wait at least five years after their conviction or their release from prison, whichever is later before filing a pardon application.” The Trump administration repeatedly violated this DOJ custom. After evaluating such factors as the seriousness of the offense and the extent to which someone has accepted responsibility for their crimes, how a person has acted since conviction, and input from the U.S. prosecutor who handled the case weighs in, the pardon office makes a recommendation and forwards it to the deputy attorney general. In turn, the deputy AG makes a recommendation of its own and forwards it along with pardon office’s up or down recommendation to the White House for a decision. In many instances, this process was totally ignored because the Trump administration viewed it as too time-consuming and cumbersome which—to be fair—it probably is.
Other informal rules or customs that Trump violated are that pardons are usually given near the end of a president’s term in office and usually after the petitioner’s case has been fully adjudicated. In the case of the latter, one of Trump’s co-conspirators in deconstructing the state and assaulting the Capitol Steve Bannon had been arrested and indicted in August 2020 for “conspiring to swindle donors to a private fund to build a wall along the Mexican border, siphoning off more than $1million for personal and other expenses.” Steve was pardoned just before Christmas well before his case was scheduled for adjudication. It will be interesting to see how Steve’s three co-defendants fare at trial when the time comes.
In the case of the former, infamous Arizona Maricopa County Sheriff Joe Arpaio became Trump’s first pardon on August 25, 2017 only seven months into his administration. Besides the violations in procedure, what makes this pardon particularly unique is that it was for only a misdemeanor rather than a felony offense. Here again the pardoning of Arpaio was pre-emptive, occurring after his conviction and before his sentencing. The former Sheriff of course had not submitted a pardon application. For the record, his conviction had been for a misdemeanor contempt of court charge for having intentionally defied a 2011 court order to stop traffic patrols that targeted immigrants.
The former executive-in-chief sold official forgiveness as if it were just another Trump-branded product. Opening bids for pardon consideration were auctioned off at $50,000. There were no guarantees. In fact, Parker Petit paid one of the largest figures—$750,000—out in mid-December to Matt Schlapp and his lobbying firm, Cove Strategies. This was done just days before Trump released his final pardons. It was denied. Petit had been a top Republican donor who served as Georgia finance chairman for Trump’s 2018 campaign. Cove Strategies had raised over $2.3 million for Trump in 2020. He was convicted of securities fraud in November 2020 and was facing up to 20 years in prison. Schlapp who is also chairman of the American Conservative Union had also been a frequent guest on Fox News. His wife, Mercedes Schlapp, worked for both the White House and the 2020 campaign. In December 2020, Trump appointed Schlapp to the trust fund board for the Library of Congress. In an article on Open Secrets Karl Evers-Hillstrom notes that this made Schlapp “one of the many Trump-connected lobbyists to land a government appointment from Trump while continuing to lobby"
The White House has credited former U.S. Attorney Brett Tolman with having secured for a little over $75,000 clemency or pardons for four individuals as either at a special group rate or a going out of business sale. A most interesting split-pardoning decision by Trump involved the granting of clemency to Nickie Davis and Elliott Broidy. In August 2020 Davis admitted that she had failed to disclose lobbying the Trump administration on behalf of a fugitive Malaysian financier. In November Davis had paid Mark Cowan, a member of Trump’s transition team, $100,000 to lobby the Donald to grant her clemency. While Trump did not pardon Davis, he did pardon Broidy, “a top Trump fundraiser who was the mastermind behind the covert foreign influence operation.
”We know about these particular fees because these lobbyists reported their “pay to play” to the IRS. Knowing the Donald, I suspect these known lobbying efforts for pardon disclosures are only the tip of the “dollars for forgiveness” iceberg. From its inception, the presidency of Donald Trump was riven with unparalleled levels of corruption. As the possibility of holding him accountable becomes more likely and as we grapple with what justice would look like, we should not forget how much the former executive-in-chief charged for forgiveness.
Excerpted from Criminology on Trump (Routledge, Paperback, May 2022) by Gregg Barak.
Gregg Barak is an Emeritus Professor of Criminology and Criminal Justice at Eastern Michigan University, a former Visiting Distinguished Professor in the College of Justice & Safety at Eastern Kentucky University, and a 2017 Fulbright Scholar in residence at the School of Law at Pontificia Universidade Catholica do Rio Grande do Sul in Porto Alegre, Brasil. He is the author and editor of 20books. Criminology on Trump is his latest.