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

On Tuesday, President Trump pardoned or commuted the sentences of 11 people he said had served enough time or been treated unfairly. The moves come as the president has sharply criticized the Department of Justice for its handling of the case of longtime Trump advisor Roger Stone. William Brangham talks to two former judges, Harvard Law School’s Nancy Gertner and University of Utah’s Paul Cassell.

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  • 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.

  • President Donald Trump:

    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:

    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:

    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:

    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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