Pardoning elected officials sends the wrong message

The Constitution grants the president unique authority to pardon or commute the sentences of federal violators — but doing so for convicted elected officials sends the wrong message to the voters and to every other elected official.

Pardon power is a privilege of the office that has been exercised in varying degrees, and thus far, President Trump has exercised it less than most. He has so far pardoned or commuted the sentences of fewer than 100 people; though, he has plenty of time over his remaining month in office to bolster that number. By contrast, President Obama pardoned 212 people and commuted the sentences of 1,715 convicted federal felons. President Obama’s total commutations exceeded the 13 presidents who came before him and President Trump put together.

President Trump’s numbers may be low by comparison, but of those he’s pardoned or commuted, most are household names, which itself is a bit unusual. Also notable is the fact that so many beneficiaries are in some way personally connected to President Trump. But if President Trump chooses to pardon his friends, supporters and associates, he can do that, he has that authority.

He wasn’t the first to exercise this authority in that fashion and he won’t be the last. President Clinton, for example, pardoned his half brother Roger Clinton and his former Whitewater business partner Susan McDougal. Every president has their list of questionable pardons and commutations, and President Trump will be no exception.

However, as a former corruption investigator and current student of corruption, I take exception with President Trump extending pardons and commutations to elected officials like former Illinois Gov. Rod Blagojevich, and former U.S. Reps. Duncan Hunter, Chris Collins, and Steve Stockman.

Public corruption is the FBI’s number one criminal priority for a reason: public corruption’s impact on the country — including on voter confidence, economic stability, and foreign investment — is wide ranging, long lasting, and difficult to overcome.

The stigma of the conviction and the sentencing that comes after the conviction are what accountability look like in a law and order society. Accountability is a chief deterrent in the war on corruption, and it’s far more difficult to achieve in federal investigations than most realize for three reasons:

First, federal investigations into elected officials require a higher burden of proof. Prosecutors do not want to file charges against an elected official unless the case is exceedingly strong — more evidence, stronger case, more likely to charge.

Second, if investigators find sufficient evidence to reach that higher evidentiary threshold, there’s still no guarantee DOJ would agree to prosecute. There are any number of reasons for a prosecutor to exercise his/her discretion and decline prosecution, but all of those reasons ultimately lead back to the fear of losing. The added attention and scrutiny when going to trial against an elected official just makes the fear of losing even greater, because the impact of the loss is more significantly felt.

Finally, if DOJ does agree to prosecute, and if a conviction is obtained, the sentencing for convicted elected officials is arguably too lenient.

Essentially the volume and quality of evidence needed to charge and convict an elected official is not the same as the volume and quality needed for everyone else. The case and supporting evidence against an elected official has to be tighter, cleaner, and stronger, which means fewer elected officials are charged than non-elected officials with the same evidence. Also, members of a jury sometimes struggle with convicting an elected official they either personally voted for or with whom they politically align, a challenge juries don’t face when the person on trial is not an elected official.

Does this mean there’s a two-tier system? Unfortunately, yes.

Worse yet, the higher up the proverbial power chain the subject of an investigation is, the harder it becomes to obtain DOJ support to criminally charge. There is no safer place to commit a federal felony than at the highest levels of the government. And that should not be the case.

The White House’s Dec. 22, 2020 statement announcing the full pardons of Duncan Hunter and Chris Collins, among others, stated “many Members of Congress” requested the president grant the two pardons. This admission actually does little to comfort the critical. In fact, the opposite is true. Those with whom the consequence of corruption is intended to positively influence found a way instead to negatively influence the consequence.

Trust by the people of those given so much power is the essence of the republic. The betrayal of that trust should unapologetically be cut out and cast out. If for no other reason than to deter as many as possible from repeating the same betrayal.

Jeff Cortese, a financial crimes manager in the private sector, is the former acting chief of the FBI’s Public Corruption Unit. Before his 11-year career with the bureau, he worked as a dignitary protection agent with the U.S. Capitol Police and served on the security detail for the Speaker of the House. Follow him on Twitter @jeffreycortese or find him at his website www.jeffcortese.com.