These pardons have drawn scrutiny over fairness, transparency, and the rule of law.
If you’ve been convicted of a crime, and don’t want to do the time, then claim the Biden Department of Justice maliciously prosecuted you and appeal to President Trump for clemency. If you are lucky, you may get a call that changes your life.
That’s basically what happened to former Tennessee House Speaker Glen Casada and his chief of staff Cade Cothren last week.
The backstory on Glen Casada and Cade Cothren
After a lengthy trial, a Middle Tennessee jury found the two disgraced former public servants guilty of honest services wire fraud, conspiracy, bribery, theft, and money laundering. A Federal District Judge in Nashville sentenced them to serve time in prison and pay substantial fines.
Barely a month later, President Trump took the time to call each convicted felon to offer them a full pardon.
Why? Well, an anonymous source at the White House told the AP that the DOJ under President Biden had “significantly over-prosecuted” both for a “minor issue.”
However, statements made by Trump administration officials at the DOJ and FBI contradict the notion that the crimes committed were insignificant or that the prosecutions were politically motivated.
“The defendants abused their power as government officials and defrauded taxpayers for their own enrichment,” said Acting Assistant Attorney General Matthew R. Galeotti of the Justice Department’s Criminal Division. “The Criminal Division is committed to holding accountable those who betray public trust and steal from government coffers in order to line their own pockets.”
So political bias doesn’t really seem to be at play here.
Pardon power mandates that its bearer has good judgment
The Constitution gives the President almost absolute pardon power. The idea was that one person of good judgment would be in the best position to correct injustices.
In Federalist No. 74, Alexander Hamilton called the President’s pardon power a “benign prerogative.”
Explaining how he envisioned that a single executive would exercise this authority, Hamilton wrote:
“The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.”
Questions abound with these pardons and a need for transparency
Did President Trump scrupulously and cautiously exercise the power to pardon in this case?
Little is known about these pardons. The sentences were only a few weeks old. Was there even time for a full vetting process? Did any vetting take place at all?
It is possible that these men were wrongfully prosecuted and that they are innocent. If that is the case, then the public deserves a full and detailed explanation for these pardons.
At this point, many questions remain which undercut confidence in government.
What’s really going on here?
How did these guys score a get out of jail free card?
A calculated appeal to President Trump
Cothren’s X header features a photo of him standing in front of the official Trump/Vance portraits and his bio proclaims:
“Targeted by Biden’s DOJ for standing with Trump. Convicted for refusing to break. Redeemed by grace — and not done yet.”
It is a not-so-subtle appeal to President Trump’s own sense of indignation that he was prosecuted and convicted of multiple felonies.
Misuse of pardon powers compromises the rule of law
Did the framers envision giving the President broad pardon powers so he could grant clemency based on his personal whims?
Improper use of the pardon power undermines the rule of law. Public corruption cases are extremely important. Citizens must have confidence that their elected officials are accountable.
Their conspirator Robin Smith, herself a former Republican representative, at least knew what she had done was morally wrong. She cooperated with the government and pleaded guilty. Her testimony was key in convicting Casada and Cothren.
To her credit, Smith, acknowledged her wrongdoing:
“My mom and dad raised me to be much better than this….I ask for the forgiveness of the public.”
However, after receiving a sentence that also included jail time, she is now seeking a presidential pardon.
Will she get one? Well, she seems to be following the Casada/Cothren playbook.
Smith’s attorney is saying that she believes her client was targeted for political reasons.
“With all due respect to everyone involved in the process, Robin is adamant that she would not have been prosecuted but for her political beliefs,” wrote her lawyer, pointing to a 2009 Vanity Fair article that labeled her a “poisonous partisan.”
No doubt, weaponization of the law is wrong. So is the misuse of the pardon power.
Clemency should only be accorded under these circumstances
Elected officials convicted of crimes should not be pardoned based on their political affiliation.
Clemency should only be granted after careful and meticulous review of the facts and the law. Not because of social media posts that please the Pardoner-in-Chief.
Scott Carey is a lawyer in Nashville. The views expressed in this column are his alone.
