How unusual are Trump’s pardons and DOJ criticism? 2 former judges weigh in


JUDY WOODRUFF: President Trump today pardoned
or commuted the sentences of 11 mostly prominent people after determining they served enough
prison time or were treated unfairly. This comes as the president has also sharply
criticized his Department of Justice for its handling of the recent case of his longtime
adviser Roger Stone. William Brangham looks at the president’s
powers as they relate to delivering justice. WILLIAM BRANGHAM: After serving about eight
years of a 14-year sentence, former Illinois Governor Rod Blagojevich was due to be released
today from this prison in Englewood, Colorado. It marks perhaps the highest-profile commutation
that President Trump has issued since taking office. DONALD TRUMP, President of the United States:
He served eight years in jail. It’s a long time, very far from his children. They’re
growing older now. They’re going to high school now. And they rarely get to see their father
outside of an orange uniform. That was a tremendously powerful, ridiculous
sentence, in my opinion. WILLIAM BRANGHAM: Blagojevich, a Democrat,
was found guilty in 2011 of 18 counts that included seeking to sell an appointment to
President Obama’s old Senate seat. The conviction came just months after Blagojevich
appeared on Mr. Trump’s reality show “Celebrity Apprentice.” In a state often known for corruption
— four of its last 10 governors have gone to prison — Blagojevich’s sentence was the
longest for an Illinois politician. Chicago Mayor Lori Lightfoot today decried
the commutation. LORI LIGHTFOOT, Mayor of Chicago, Illinois:
This is a man who was a governor of our state. He committed crimes, as found by a jury of
his peers. He’s got to accept responsibility for that. President Trump is probably the
least credible person to make this decision. WILLIAM BRANGHAM: In addition to Blagojevich’s
commutation, President Trump today pardoned seven people, including former New York Police
Commissioner Bernie Kerik, who served three years for tax fraud, and financier Michael
Milken, who pleaded guilty to violating U.S. securities laws in 1990. All of today’s announcements come after Attorney
General William Barr altered the sentencing recommendation for Mr. Trump’s longtime ally
Roger Stone. Stone had been convicted of lying to Congress and witness tampering and faced
a possible seven to nine years in prison. Via Twitter, the president criticized that
as far too harsh. Barr subsequently said the president’s criticisms were making it — quote
— “impossible for me to do my job.” So, for a closer look at the president’s recent
moves, I’m joined now by two former federal judges. Nancy Gertner was appointed by President Clinton
and served as a U.S. district court judge in Massachusetts for 17 years. And Paul Cassell,
he was appointed by President George W. Bush and served as a U.S. district judge in Utah
for five years. Judges, welcome to you both. Thank you for
being here. Nancy, to you first. Let’s talk about the pardons and the commutations
that the president issued today, 11 different people that sort of span an unusual political
gamut. What do you make of the president’s move today? NANCY GERTNER, Harvard Law School: Well, in
a regime that has been for the past 30 years an extraordinarily punitive regime, the pardon
power is really critical. The clemency power is really critical and important. Most other presidents had a process for it,
had standards, had a pardon attorney, had a process within the Department of Justice.
I don’t know that the president has that kind of a process. And the purpose of that process
is to make sure that pardons are not doled out because of political influence or just
celebrity status. So that is a problem with the deploying of
this very, very important clemency tool. And the question is whether the people on the
list today are the most deserving or just the most famous. WILLIAM BRANGHAM: Paul Cassell, what do you
make of this? I mean, certainly, the president does have
unlimited power to pardon people. Oftentimes, though, it does come into a decision about
who is pardoned and when they are pardoned. Do you discern any motive behind the president’s
actions today? PAUL CASSELL, University of Utah College of
Law: Well, I think one good thing about the president’s actions today is that he took
them well before the next election. And so the electorate will have a chance to decide
whether he’s wisely using this presidential power to commute sentences, along with many
other things the president is doing. Some of the pardoned decisions in the past
have been made by presidents on their way out the door. And so this one will at least
be reviewable. WILLIAM BRANGHAM: Let’s turn now from these
pardons to this question of the ongoing controversy within the Department of Justice. As we know, Roger Stone was convicted of lying
and witness tampering, among many other things. The prosecutors in that case recommended that
he serve somewhere between seven to nine years. President Trump strongly criticized that on
Twitter. And Attorney General William Barr then stepped
in and overruled that recommendation and said, no, no, no, that was far too harsh. Those
four prosecutors have now all left and resigned from that case. Nancy Gertner, what do you — help us understand,
is it unusual for an attorney general to overrule their line prosecutors in a case like this? NANCY GERTNER: It is extraordinarily unusual.
It’s extraordinarily unusual to have main Justice, you know, the upper echelons of the
Justice Department, intervene in a case involving the line prosecutors. Presumably the line prosecutors, the four
who resigned, would have reviewed their recommendation already up the chain. In addition, the way
— it’s not just that he did it. It’s also the way he did it. The notion that, after
the president tweeted that, you know, these were rogue prosecutors, Barr stepped in and,
you know, called for a second memorandum, very public display of displeasure with four
prosecutors, asking — you know, essentially rejecting their recommendation. Their recommendation, I might add, although
I might have disagreed with it were I on the bench, was a guideline recommendation, was
actually consistent with the federal sentencing guidelines, which Barr conceded. So, it’s very unusual. Usually, what a prosecutor
would do in a situation like that would be go, before the judge and say, here’s what
the guidelines say. I understand, Judge, that you have a right to go below this, and that
would have been communicating to the judge that the department really doesn’t likely
stand behind the guideline sentence, that, in fact, the judge could go below it. But what Barr did was a shot across the bow
to other prosecutors, which was really, really troubling, that he would intervene when he
did for someone who was obviously a political crony. The precedent is very troubling. WILLIAM BRANGHAM: Paul Cassell, what’s your
take on that? Is this a shot across the bow, where the president is clearly trying to intervene
to protect one of his buddies? PAUL CASSELL: Well, Attorney General Barr
has said that he didn’t communicate with President Trump in making these decisions. I think, if the attorney general can be criticized,
it’s simply because he’s failed to keep these deliberations internal to the department.
The U.S. attorney’s office for the District of Columbia was in a time of transition when
the initial sentencing recommendations was made. And I think his higher-ups, including the
attorney general, looked at it. They decided it couldn’t be sustained. And they stepped
in to put forward a more reasonable recommendation, a more limited recommendation. It’s interesting to see that this is a situation
where a lot of people who typically decry the severity of the sentencing guidelines
are somehow now opposed to the Justice Department trying to find a bit more leniency in a particular
case. So I don’t see that this has some kind of
broader message involved at all. WILLIAM BRANGHAM: Nancy Gertner, our understanding… NANCY GERTNER: If I might — yes. WILLIAM BRANGHAM: Please, go right ahead. NANCY GERTNER: Yes. The question is whether or not Barr will intervene
on behalf of other people for whom the sentencing guidelines were ridiculous, whether or not
he would intervene to tamp down on mandatory minimum sentences, or whether this is a one-of.
And if it’s a one-of, then it is troubling. WILLIAM BRANGHAM: Paul Cassell, there is — our
understanding is, tomorrow, there’s a meeting of the — a federal judges association. And, reportedly, this is a meeting of this
group of federal judges who are having a meeting because they are troubled, reportedly, by
what has been going on at the DOJ and from the president. Is that your understanding? And if so, do
you understand the concern from judges what at is happening in the country today? PAUL CASSELL: Well, I understand the concern
about the president having sort of running commentary on ongoing judicial proceedings,
and specifically criticizing a judge by name. I think that’s very unusual and certainly
not something that I think is the kind of activity that we like to see from the president.
On the other hand, though, I’m not sure whether the judges association is the best group in
a position to make a criticism of what the president is doing. Judges are typically above the fray and don’t
step into what are political controversies. This has very clearly become a political controversy.
It’s clear that Judge Jackson, for example, who’s being criticized, has no lack of allies
among members of Congress, even presidential candidates who are running against President
Trump. So I’m not sure it’s something that the judges
association needs to step in to. WILLIAM BRANGHAM: Nancy Gertner, in just the
short time we have left, what do you make of that? Do you think that judges should stay
out of this fray and just, look, we are on the bench, we will make judges’ decisions
as we see fit, and let the political fray be the political fray? NANCY GERTNER: I think that they can stand
up for the institution. I think when the president makes the kind
of comments that he did before a sentencing, sort of mid-proceeding, when he makes the
kind of comment that he did trashing the judge who was hearing the case, and when he’s making
the kind of comments he did with respect to a political crony, judges should well be concerned
about the interference with the bench as an institution. Having said that, I doubt very much if they
will say anything other than what Justice Roberts said when Trump was talking about,
you know, Obama judges, and something that would be very different than what the chief
judge of the district court said when she said these are, you know, independent judges
who should be free to make independent decisions free from political influence. WILLIAM BRANGHAM: Right. NANCY GERTNER: So, that they’re taking that
position is fine. I don’t think that they will say much more than that. WILLIAM BRANGHAM: All right, Nancy Gertner
and Paul Cassell, thank you both very much. NANCY GERTNER: Thank you.

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