George Santos and President Trump’s Theory of Mercy

In recent years, Republican members of the House of Representatives have had a crime rate that seems comparable to that of the most perilous of American neighborhoods, at least going by the growing list of those granted clemency by President Trump.

The latest of these criminals/legislators to receive Mr. Trump’s largess is George Santos, the former congressman from Long Island. The president’s commutation meant that Mr. Santos was released from prison after serving 84 days of an 87-month sentence for wire fraud and aggravated identity theft.

Over his two terms, Mr. Trump has pardoned or commuted the sentences of a raft of former Republican members of the House. Among those receiving such grants were Duke Cunningham, of California, who was convicted of taking over $2 million in bribes, among other crimes; Duncan Hunter, also of California, who pocketed thousands of dollars of campaign contributions and spent it on extramarital affairs; Rick Renzi, of Arizona, who was convicted of racketeering and extortion; Robin Hayes, of North Carolina, who lied to investigators in a bribery investigation; Chris Collins, of New York, who pleaded guilty to insider trading and false statements; Michael Grimm, also of New York, who pleaded guilty to tax evasion and also admitted in court that he committed perjury and hired undocumented immigrants; John Rowland, of Connecticut, a former governor as well as congressman, who pleaded guilty to election fraud after going to prison years earlier in a separate scandal; and Steve Stockman, of Texas, who was released after serving only two years of a 10-year sentence for stealing upward of $1 million.

What do all these individuals have in common? Political support for President Trump. As Mr. Trump put it in his social media post announcing the latest commutation, “Santos had the Courage, Conviction, and Intelligence to ALWAYS VOTE REPUBLICAN!”

The one prominent Democrat whom Mr. Trump has favored proves the same point: Rod Blagojevich, the former Illinois governor, who had engaged in a criminal scheme to sell the Senate seat of Barack Obama after he was elected president. Mr. Trump commuted the sentence of, then later pardoned, Mr. Blagojevich after he became an outspoken supporter. (A pardon wipes out all effects of a criminal conviction, like restrictions on voting or owning firearms; a commutation erases a sentence but not the underlying conviction.)

Mr. Trump’s transactional use of his clemency powers conflicts with the reason the pardon power was included in the Constitution in the first place. Alexander Hamilton, the leading advocate for its inclusion, said this presidential prerogative was necessary because, as he wrote in Federalist No. 74, “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” In short, presidential clemency is meant for those who deserve mercy.

Mr. Santos, for one, deserved none. He remains best known for the colorful falsehoods that he told about his personal and professional lives, from his nonexistent volleyball championships to his never-happened career at Goldman Sachs. But the crimes to which he pleaded guilty were more conventional. At its heart, the case was about his practice of using the credit card numbers of campaign contributors and others to purchase luxury goods for himself. He was a thief.

And Mr. Trump didn’t just spring Mr. Santos from prison after serving about 3 percent of his sentence; just as egregiously, he excused Mr. Santos from paying $370,000 in court-ordered restitution to the victims of his crimes.

It would have been possible, if Mr. Trump had been so inclined, to brand his clemencies simply as fresh starts for men who had acknowledged their wrongdoing and wanted to start new chapters. The Supreme Court said in Burdick v. United States, a famous opinion from 1915, that a pardon “carries an imputation of guilt; acceptance a confession of it.” President Gerald Ford, stung by criticism of his pardon of Richard Nixon, carried in his wallet that excerpt from the court’s opinion; he used it to make the point that Nixon, in accepting the pardon, had publicly admitted to wrongdoing.

But neither Mr. Trump nor the recipients of his largess appear to have troubled themselves with the implications of the Burdick opinion. Some of the pardoned and commuted Republicans still refer to themselves as “political prisoners” and victims of “witch hunts.” Mr. Trump apparently doesn’t think they have done anything wrong. His grants to them were celebrations, not expiations.

The power to pardon, including to grant commutations, remains an anomaly in our constitutional system. The design of the framers features checks and balances among the branches of government, but the pardon power is the provision that comes most directly from the monarchy of Britain. Neither Congress nor the courts can order grants of clemency or stop them. The power belongs exclusively to the president.

For that reason, pardons and commutations offer X-rays into the souls of presidents. More than any other presidential actions, clemencies tell us who they are.

This has been especially true of President Trump. Of course, his most notorious pardons remain those for the 1,500-plus rioters and other criminals at the Capitol on Jan. 6, who tried, by violent means, to overturn Mr. Trump’s loss to Joe Biden in the election of 2020. But the clemencies for George Santos and the other Republican politicians are part of the same piece.

Mr. Trump’s worldview is characterized by amoral deal-making, where friends are rewarded and enemies punished, regardless of the merits of their underlying conduct. In the end, the clemency for Mr. Santos wasn’t even really about the former congressman but rather about the president who granted it. Mercy, which was and remains the proper justification for the pardon power, had nothing to do with it.

Jeffrey Toobin is a former assistant U.S. attorney who writes about law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court” and “The Pardon: The Politics of Presidential Mercy.”

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