BROOKE GLADSTONE: From WNYC in New York, this is On the Media. I’m Brooke Gladstone.
BOB GARFIELD: And I’m Bob Garfield. Well, this Wednesday development was a bit unexpected.
MALE CORRESPONDENT: The president has commuted the sentence of Alice Marie Johnson, a woman now in her ‘60s who was convicted in the late 1990s of drug possession and money laundering.
BOB GARFIELD: A life sentence to a first-time offender on a drug case. Yes, a commutation no-brainer but one wonders how an African-American woman with a drug history would get on Donald Trump's radar, to begin with.
MALE CORRESPONDENT: Kim Kardashian, the reality TV star, was here at the White House to lobby the president last week for this commutation of sentence, Kim Kardashian just tweeting out, “BEST NEWS EVER!!!!” to her legion of Twitter followers.
BOB GARFIELD: That’s one mystery solved, the intervention of noted human rights advocate Kim Kardashian. But her timing was propitious because pardons have been very much on the president's mind, especially those of powerless, meek, remorseful victims of political persecution.
FEMALE CORRESPONDENT: President Trump granting a full pardon to Dinesh D'Souza, the conservative author and filmmaker who pleaded guilty to campaign-finance fraud.
MALE CORRESPONDENT: …will be issuing a pardon to the former top aide to Vice President Dick Cheney, Scooter Libby, who was convicted of perjury and obstruction of justice in 2007.
MALE CORRESPONDENT: And Donald Trump pardoning former Arizona Sheriff Joe Arpaio, recently convicted of criminal contempt for violating a judge's order. This was in a racial profiling case and he continued to target immigrants at traffic stops.
BOB GARFIELD: And maybe this is all just a precursor to another pardon of another controversial elected official currently in the sights of prosecutors on any number of potential crimes.
FEMALE CO-HOST: …tweeting, "As has been stated by numerous legal scholars, I have the absolute right to PARDON myself” [LAUGHS] even though I haven’t done anything. [LAUGHTER]
BOB GARFIELD: The president does seem to be taking to this pardon-palooza. He’s reportedly asking friends whom he can absolve next, while would-be applicants take to cable to plead their cases. The wife of George Papadopoulos, the former Trump campaign aide who pleaded guilty to lying about his Russia contacts, made the rounds this week.
SIMONA PAPADOPOULOS: I know how much dedicated and committed he was on the Trump campaign. I know he did an excellent job. So I trust and hope and ask to President Trump to pardon him. I hope he will.
BOB GARFIELD: It’s also -- Trumpian, and yet, maybe, in its way, okay. Mark Osler is an expert on clemency policies and a professor of law at the University of St. Thomas. Albeit a far cry from presidential norms, he believes that Trump's style may actually be improving the way the clemency system works. Mark, welcome to the show.
MARK OSLER: Thanks, it’s good to be here.
BOB GARFIELD: The presidential pardon derives from the ancient notion of clemency. Where does that notion come from?
MARK OSLER: From the very earliest legal systems. One of the things that I have as a treasured possession is a Roman coin that’s 1700 years old that features their Goddess Clementia. They actually had a goddess of clemency. In the ancient world, clemency was a counterbalance to the harsh use of justice. It allowed the way that justice was meted out to maintain credibility because it had that aspect of mercy in it, as well.
BOB GARFIELD: How did the Framers intend for the power to be used?
MARK OSLER: There was an active debate about including this in the Constitution, as well one might imagine, because it's a rare thing. It’s that presidential power in the Constitution that doesn't have a check or balance. The president can just pick up his pen and issue a pardon warrant. And from everything we know about this particular president, it probably shouldn’t surprise us that that power of kings appeals to him.
BOB GARFIELD: Mm. Now, before Trump presidential clemency was just as unchecked a power but it was subject to a number of more or less unspoken norms: Use the power sparingly, typically save your pardons to the end of your term, choose wisely, lest you attract too much negative press and cloud your own legacy. How did this form of mercy come to be seen as a political risk?
MARK OSLER: Now, when we look back at Obama, at Bush, at Clinton, in the first two years they didn’t use clemency at all. But Ronald Reagan used it over 80 times in his first two years. Presidents before that tend to have it pretty evenly spread throughout their administration. It’s really starting with Clinton that we see this notion that it’s something to save to the end. And a lot of people will trace that to a development from the Dukakis-George H. W. Bush contest that a lot of us remember, the Willie Horton ad.
ANNOUNCER: …Willie Horton, who murdered a boy in a robbery, stabbing him 19 times. Despite a life sentence, Horton received 10 weekend passes from prison.
MARK OSLER: That was an ad that Bush used against Dukakis involving the man that received a furlough in Massachusetts while Dukakis was governor.
ANNOUNCER: Weekend prison passes. Dukakis on crime.
MARK OSLER: There were really troubling racial overtones to the use of that ad but, more than anything, it was seen as tipping the scales against Dukakis. The danger of having someone do something bad after you’ve released them really stilled the waters and prevented people from having the political will to use clemency the way it should be used.
BOB GARFIELD: Now, you actually believe that Trump’s way of going about things with respect to clemency is maybe an improvement over the norms that have been developing. Why do you believe that?
MARK OSLER: President Trump is ignoring the DOJ process. The way that clemency is supposed to work is that you file a petition to the pardon attorney who’s an official that's, you know, deep within the DOJ. Once the petition is filed there, it goes up to the deputy attorney general, over to the White House counsel, finally up to the president. That bureaucracy is unnecessary, and having it embedded within the Department of Justice is one of the biggest problems because of the obvious conflict of interest. Having prosecutors decide whether mercy is a worthwhile value in relation to the people where they sought the sentences, that’s not the right people to be doing that.
BOB GARFIELD: The eradication of structural conflict is one reason you kind of like what Trump is up to, but there's a couple of others.
MARK OSLER: Right now, we've got two systems side by side. One is the formal system that courses through the DOJ and the White House counsel, and we’ve got the informal system where a celebrity or a Fox News makes a pitch directly to the president. And the formal system isn’t working. The informal system apparently is working. So let’s formalize it and let’s find a way to make it available to the people who are in prison who don't have that connection to celebrity.
BOB GARFIELD: In what way are the media part of the problem and in, in what ways could we perhaps be part of the solution?
MARK OSLER: The media, like the rest of America, loves celebrities, and it’s telling that when we read about the Alice Johnson commutation of her sentence, we read a lot about Kim Kardashian. We didn’t read nearly as much about Alice Johnson, who she was, what she’s done. And I can tell you, having worked on dozens of petitions for clemency pro bono for people across the country, their stories are just as compelling as any celebrity’s. These are people who grew up becoming a member of a gang at age 13, knowing nothing but that kind of life, go to prison, they’re serving a life sentence and radically transform their life, read a book for the first time, take hundreds of classes. And many of them are out there right now, people who received clemency under Obama, and there's hundreds more who are in prison. Those people who earned their redemption, the media needs to tell those stories too, not just the Dinesh D'Souzas and the Joe Arpaios.
BOB GARFIELD: It is by now well documented that the president watches Fox News, not only for talking points but actual ideas. Is there not a risk that justice is subverted by just some really shrewd PR booking?
MARK OSLER: I’m not sure justice is subverted but I do think it’s unfair. And that’s the thing that most urgently has to change. The president watches Fox News, he listens to celebrities, but we do have celebrities, and this includes Kim Kardashian, who are urging him to look more broadly. And hopefully, that will lead him to a principle that will guide us to something that’s more worthwhile.
BOB GARFIELD: Lead him to a principal?
MARK OSLER: I think Donald Trump can be led to a principle. You know, right now it's interesting, every time he grants clemency he seems to use the same phrase, that this person has been treated very unfairly. The job of all of us is to convince this president that the pool of people who have been treated very unfairly is pretty extensive within our criminal justice system.
BOB GARFIELD: Now, as a man who almost every single day complaints, himself, of having been treated unfairly, let's just say --
-- he is indicted and then chooses to pardon himself, will that, do you think, in the end, pass constitutional muster?
MARK OSLER: Well, it depends on who is sitting on the Supreme Court at that time and what their view of expansive presidential power is. Right now, if we threw this to the Supreme Court, I think it’s kind of a jump ball. And yeah, that’s troubling. I hope he doesn't invite that constitutional crisis, but I fear that he will.
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BOB GARFIELD: Mark, thank you very much.
MARK OSLER: Thank you. It’s been a pleasure.
BOB GARFIELD: Mark Osler is a professor of law at the University of St. Thomas.
BROOKE GLADSTONE: Coming up, why we are so very bad at policing Wall Street.