On his last day in office, President Clinton pardoned billionaire commodity trader Marc Rich, who was on the FBI’s “most wanted” list, for evading prosecution in the US for tax-dodging and illegal dealings with Iran. President Clinton’s decision was widely condemned — and even investigated — given that Rich’s former wife, Denise, made large donations to the Democratic Party, the Clinton library, and Hilary Clinton’s Senate campaign. Clinton’s attempt to justify his decision in an op-ed for The New York Times arguably just made things worse. Many, including me, still consider the pardon outrageous.
President Trump’s latest round of pardons and commutations has also sparked outrage, including among Republicans. Commentators have criticized the President’s bypassing of the traditional process, the role of campaign contributions, and the fundamental unfairness of granting clemency to wealthy white collar criminals, like Michael Milken and the former Democratic Governor of Illinois, Rod Blagojevich, while so many ordinary Americans convicted of lesser crimes languish behind bars.
Critics have also expressed fear that Trump is testing the waters in order to pardon those convicted of crimes that benefited him, including Roger Stone. Coming on the heels of widespread concern about Trump’s efforts to interfere with the independence of the Justice Department, and with the judicial branch itself, it is not surprising that many fear that what is at stake is nothing less than the rule of law.
I absolutely share these concerns, but I have other concerns as well. As is often the case, the people at greatest risk of harm from Trump’s actions are those most powerless to do anything about them: ordinary non-US citizens around the world whose human rights are threatened by large-scale corruption in their home countries. How so? Because the American legal system has historically led the way in bringing justice to white collar criminals, including high-ranking government leaders and businesspeople whose actions, while violative of US law, have primarily harmed individuals outside the United States.
White collar crimes are not victimless crimes. On the contrary, they deprive ordinary people, at home and abroad, of basic economic and political freedoms. The FBI estimates the cost of white collar crimes to the US to be $300 billion per year. The cost of corruption outside the United States is simply staggering. As Professor Nancy Boswell, former Chief Executive of Transparency International USA, writes, “Corruption undermines the rule of law, stunts economic growth, and benefits regimes and organizations that threaten international peace and security.” For just one example of how corruption affects people’s fundamental human rights, read about Isabel dos Santos and Angola. The US prosecution of Malaysian financier Jho Low, the man responsible for a fraud of $6.5 billion dollars, was essential for both asset recovery and Malaysian citizens’ ability to free themselves from a deeply corrupt government. US investigation and prosecution of FIFA officials was crucial to exposing large-scale corruption that devastated soccer-loving communities across the world. The list goes on.
Trump’s pardons undermine efforts to fight corruption abroad in three ways. First, the possibility of a presidential pardon weakens the deterrent effect of criminal sentences. Should we assume President Trump would not be so arrogant as to pardon a foreign leader or businessperson for white collar crimes that mainly impact non-Americans? He has already shown disdain for anti-corruption efforts worldwide, including for a key anti-corruption tool, the Foreign Corrupt Practices Act. Second, the possibility of a pardon itself encourages corruption in the attempt to secure it. Now that we know how Trump makes clemency decisions, foreign governments have a playbook of how to catch the President's sympathy.
Former 49ers player Charles Haley speaks outside White House after Trump pardons Edward J DeBartolo
But the third reason is the most devastating. Trump’s shenanigans undermine the US’s moral authority — or whatever remains of it — abroad. They make it very difficult even for our allies to take us seriously, much less autocratic regimes propped up by corruption.
Other countries often chafe at the “heavy hand” and “long arm” of US law, including the heavy fines imposed on foreign companies — and the heavy prison sentences imposed on foreign white collar criminals. But citizens of these countries have come to rely on US law to help fight large-scale corruption. While it is hard to muster sympathy for foreign white collar criminals who are taken off guard by the harshness and strength of American anti-corruption, anti-fraud and anti-tax evasion laws, it becomes much harder to justify these penalties when the President himself feels free to pardon or commute the sentences of a “who’s who” list of domestic white collar criminals. And once the genie of corruption is let out of the bottle, it is very difficult to put it back in.
As others have pointed out, Trump is likely banking on Americans thinking — and accepting — that corruption is so widespread and commonplace in America that there is no real difference between the political parties. Fortunately, several Democratic presidential contenders have made fighting corruption a centerpiece of their platforms.
Republicans and Democrats alike were right to be outraged by President Clinton’s pardon, and they are right to be absolutely incensed by President Trump’s multiple pardons and commutations, which undermine years of bipartisan efforts to curb global corruption. Non-citizens affected by corruption abroad cannot protect their human rights by voting Trump out of office in November 2020. But American citizens can.