Dahlia Lithwick and Mark Joseph Stern: Performative Pardons

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https://slate.com/news-and-politics/2018/05/trumps-dsouza-pardon-is-great-news-for-michael-cohen.html

Performative Pardons
Donald Trump is using presidential clemency to signal what laws he thinks matter—and which laws his friends can break with impunity.

By Dahlia Lithwick and Mark Joseph Stern
May 31, 2018
4:35 PM


Starting with the caveat that it is folly to impute three-dimensional-chess tactics to a man playing Hungry Hungry Hippos, Donald Trump’s decision to pardon Dinesh D’Souza, a man who began his political career outing gay students at Dartmouth and ended it with a conviction for campaign finance violations, sends all kinds of fascinating signals to anyone who likes to read signaling.

First and most obviously, by pardoning D’Souza, the president is signaling—and frankly, let’s just call it shouting aloud—to the Michael Flynns and the Paul Manaforts and the Michael Cohens in his world that Everyone in America Who Helps Donald Trump will eventually get a pardon. This is how he has previously deployed his pardon power, and it is not a complicated message when there are several people around you who are contemplating plea deals versus lengthy prison sentences.

And as Talking Points Memo’s Josh Marshall was quick to point out, by pardoning someone as usefully racist and homophobic as D’Souza, Trump is also winkingly letting America know that this sprawling tribe of conspiracy theorists and racists and provocateurs and misogynists and performers of casual hate will always have a champion in the White House. Solid.

None of this is difficult to discern, and none of this is terribly surprising. But with this specific pardon of D’Souza, the president is also signaling something consequential to the about 40 percent of the electorate who still believe him to be an important arbiter of legal truths: that campaign finance convictions are not real crimes. Much like sexual assault and racist policing, these are, in Trump’s view, fictional crimes that are only ever charged in bad faith and always by the “Obama administration.” With Michael Cohen currently on the hook for massive campaign finance misdeeds that may or may not implicate the president but that certainly make Michael Cohen’s life rather uncomfortable, the message is particularly timely: Redirecting dark money into the pockets of worthy Republicans isn’t just a not-crime, it is also warmly encouraged.

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Seven months into his presidency, by contrast, Trump used his pardon power on Joe Arpaio to make clear what kinds of convictions he deems “unfair.” Thursday’s announcements of Trump’s possible future pardons further clarify the crimes the president is interested in excusing: obstruction of justice, perjury, making false statements to investigators (Scooter Libby, Martha Stewart), criminal contempt of court (Arpaio), and also corruption, fraud, and extortion (Rod Blagojevich). Add the D’Souza pardon for campaign finance violations, and it’s quite a picture. As Asha Rangappa wryly noted, “Someone gave him a list of all the possible charges he’s going to face and he’s finding celebrities convicted of them to pardon. #consciousnessofguilt.” It doesn’t hurt that some of these faces have the added benefit of being members of the Apprentice franchise. Who better to pardon than the reality-television cohort that is so in need of extra-judicial solicitude?

Then of course, there’s the added bonus of being able to erase convictions secured by James Comey, Preet Bharara, and other members of Trump’s enemies list. Tally it all up, and you have the whole package: Corruption is OK, friends of Trump are OK, Pardons for All, and also anyone whom Trump considers a member of Team Witch Hunt is undermined and punished. The presidential pardon has long been the highest expression of the animating Trump legal theory—that he and only he decides what the law is, and who breaks it. These more recent examples are outrageous but unsurprising. These particular pardons aren’t the result of group efforts by his DOJ, they are performances of L’etat c’est moi that consolidate public opinion and legal decision-making around one man’s legal worldview.