The president’s explicit and flagrant use of the Department of Justice to benefit his allies like Roger Stone has shocked many. Federal prosecutors quit the Stone case and at least one has resigned from the department altogether. More than 2,000 Justice Department alumni wrote a letter warning that the president’s abuse of power is threatening the venerated institution’s impartiality, and the Federal Judges Association has even convened an emergency meeting to address the president’s conduct.
The president’s conduct is all the more baffling considering that he has a perfectly legal instrument at his disposal to thwart justice: the pardon power—a tool that has been used for nearly 200 years to dispense mercy on occasion, but mostly to benefit friends, allies, and benefactors of the president. Trump seemed to be telegraphing his likely move to pardon Stone and his former national security advisor, Michael Flynn, with his bevy of white-collar pardons on Tuesday.
But what all of this ignores is an equally important reality: Our legal system has always favored the wealthy and well-connected. While our Constitution guarantees equal protection of the law, as a nation, we have done a pretty terrible job of living up to that promise.
Make no mistake, the president’s effort to force the Justice Department to go easy on his friends and dispensing “get out of jail free” pardons to his allies (especially those friends who might have committed crimes to benefit him) is not just unfair, it is an abhorrent and frightening abuse of power. And it portends how the president may wield law enforcement to punish his enemies in the future.
The rich and powerful have always twisted the rules to escape accountability, and the president’s exploitation of those inequities has only made them more apparent.
White-collar crime cases offer the starkest example. Corporations charged with criminal wrongdoing have endlessly deep pockets, enabling them to hire lawyers—often former government prosecutors who can pull strings within the Justice Department to get charges reduced or dropped. It’s essentially legalized corruption.
Take the case of biotech giant Monsanto. Last year, federal prosecutors were about to indict the company on felony charges for illegally spraying a banned and highly toxic pesticide and nerve agent in Hawaii. But then Monsanto hired a well-heeled law firm to appeal directly to political officials at the Justice Department, who overruled that decision. As a result, the company faced only misdemeanor charges. Meanwhile, the vast majority of criminal defendants in the federal justice system are those in need of a public defender and could hardly hope for special access to the highest echelons of decision-making in the department.
On top of this, companies may not even need special treatment in the future, as the Justice Department and other enforcement agencies undertake fewer and fewer investigations into corporate crime.
How Corporate Lawbreakers Get a Leg Up at the Justice Department
Potential corporate defendants have many more opportunities to influence the process than most people have. And it happens before corporations or their executives are charged with violating the law, if they face charges at all.Read More
In fact, not long after Trump came in to office, the Justice Department instituted a blanket policy instructing all federal prosecutors to seek the criminal charges with the toughest possible sentences. Thus, it seems the general policy is to dispense with discretion, except when it comes to the well-connected.
Given this, it is a bit hard to swallow the Department of Justice’s newfound sympathy for Roger Stone, as described in its revised sentencing memo suggesting that Stone deserves “far less” than the original seven to nine years the government sought just the day before. The government laments that perhaps the evidence was not as strong as it seemed at trial, and that while Stone “technically” qualified for a harsher sentence, the government doesn’t think Stone deserves it.
That’s an extraordinary position to take given that Justice Department prosecutors systematically punish those defendants who choose to go to trial with harsher sentences—so much so that criminal trials are a rare occurrence, and 97% of all federal criminal convictions are obtained by a defendant pleading guilty. Typically, if a defendant does not accept a plea offer made by a U.S. Attorney’s Office, prosecutors will “stack” more charges at trial, resulting in a sentence of extraordinary duration if convicted. And most of the defendants squeezed by that process are too poor to afford their own attorney.
What is the result of this disproportionate treatment? White-collar prosecutions have plummeted to their lowest level since 1996, and those who are convicted face light sentences. “Violent” crime offenders, meanwhile, are sentenced to terms of draconian length, with black male offenders continuing to receive longer sentences than similarly situated white male offenders throughout the federal system.
The great irony, of course, is that until Attorney General William Barr intervened—resulting in the reduced sentencing recommendation for Stone—the case was really shaping up to be an example of justice done right: Even someone as wealthy and well-connected as Stone could not escape accountability for his actions. And grievous those actions were: Stone lied under oath and tampered with a witness in the House investigation into Russian interference in U.S. elections.
Other prosecutors say they fear the president will exert pressure on them to bend cases to his will. While that is a valid concern, it overlooks the fact that prosecutors’ decisions are often affected by the politics of the day, with extraordinary and grave consequences. From the Palmer Raids during the “Red Scare,” resulting in the warrantless arrest and detention of thousands of individuals in 1919 and 1920, to the wrongful conviction of an innocent man on terrorism charges that took place in the anxious period following 9/11, federal investigations and prosecutions have often bent away from the arc of justice.
The question now is how do we stop this pernicious cycle of abuse and unequal distribution of justice? Laws and policies to better ensure fair application of the law are within reach, but it is incumbent upon us to reject the cynical view that corruption of the justice system is “business as usual.”
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.