Where to Go for Your “Get Out of Jail Free Card”
This Approach to Undermining the Rule of Law Devastates Democracy
How Did This Not Capture Newspaper Headlines?
“The only stable state is the one in which all men are equal before the law”.[1] Aristotle
It did receive some media attention recently, mostly from the New York Times (the Times). Nonetheless, given the topic, it is astounding that the Times’ article, “A Troubling Trump Pardon and a Link to the Kushners”[2], has not received even more media attention. As the Times reports:
“Even amid the uproar over President Donald J. Trump’s freewheeling use of his pardon powers at the end of his term, one commutation stood out.”[3]
Even more astounding is the fact that it has not caused a seismic reaction of alarm from Americans as it relates to their democracy. Why aren’t we Americans clamoring about what has just happened here? What is it that we are missing?
What Happened?
What has happened is fairly simple and straightforward. It happened in the “light of day” in the waning hours of the Trump Administration. As reported by the Times,
“…Jonathan Braun of New York had served just two and a half years of a decade-long sentence for running a massive marijuana ring, when Mr. Trump, at 12:51 a.m. on his last day in office, announced he would be freed. Mr. Braun was, to say the least, an unusual candidate for clemency…”[4] (emphasis mine)
An unusual clemency candidate indeed.
The Times further reports how Jonathan Braun, while serving only a short portion of his decade-long sentence, had been cooperating with a Federal law enforcement investigation into another of his “vocations”- predatory lending. Yet, while negotiating with Braun to cooperate into this investigation, Federal law enforcement did not know that Braun’s family, through its ties to the Kushners, was seeking a presidential pardon. Braun’s family used a connection with Jarrod Kushner’s father Charles (who also received a Trump pardon), as well as the services of attorney Alan Dershowitz who represented Donald Trump in his first impeachment, to obtain Jonathan Braun’s sentence commutation from then President Trump.[5]
The Times has found Jonathan Braun had attended high school with Jarrod Kushner’s youngest sister at Kushner Yeshiva High School in Livingston, N.J., a school heavily funded by the Kushner family. Further, issuance of the Braun’s sentence commutation scuttled law enforcement’s ability to have Braun cooperate into their investigation into the predatory lending industry. Braun’s pardon request circumvented the Justice Department’s Office of the Pardon Attorney and its processes for processing pardon and clemency requests. It went straight through Jarrod Kushner’s office displaying an apparent lack of depth of vetting for clemency applications received at the White House during this period. Even the news release announcing Braun’s sentence commutation came from Kushner’s office. Shortly after his release from prison Braun resumed his “merchant cash advance business”.
So now the reader might be wondering, why does this matter?
Rule of Law- A Vital Democratic Norm
Although it is a close contest, the rule of law may be the most under-appreciated, taken for granted, and yet most foundational, of all American democratic norms. It is so basic to how we think of our government, and how we expect it to function, that it often is the most overlooked of our democratic norms. Overlooked that is, until it is not observed in practice, as was the case with Jonathan Braun’s commuted prison sentence via Trump son-in-law Jarrod Kushner during Kushner’s time in the Trump White House.
Until we experience or see someone else experience injustice or inequality under the law, or see the law not observed at all, that is when the rule of law matters to us. For all Americans, our not having the rule of law as a democratic norm of the highest priority, and our not treating violation of the rule of law as an outrage, allows our democracy to sustain serious damage. Americans have just witnessed four years of our collective failure to consider disdain of the rule of law by a president as egregious. And, having our leaders turn their backs to the rule of law does not yet appear to be over for us.
Do we Americans understand what the rule of law really means for us, and why founder John Adams said that we are, “A government of laws, and not of men.”?[6]
The Criticality of the Rule of Law For All of Us
The term “rule of law” is an ancient concept going back at least to Aristotle and developed over the centuries by political philosophers such as John Locke and Montesquieu.[7] Of late, it is used fairly often, especially by the news media and political analysts during the Trump Administration. It would be interesting to see how many Americans are familiar with it.
Based on the lack of response by many Americans during the Trump Administration, our collective sensitivity to the importance of the rule of law is not high. Naomi Choi, Assistant Professor of Political Science at the University of Houston, defines the rule of law as:
“…the mechanism, process, institution, practice or norm that supports equality of citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power…”[8] (emphasis mine)
The word “arbitrary” appears in most descriptions of the concept of the rule of law for a reason. This is because, according to Choi, “…arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism.”[9] In other words, the rule of law has no footing in an autocratic, dictatorial, “strong man” form of government.
However, it is foundational to democracy. The rule of law is intended to create consistency, equality, and justice for all. Ironically, it is the consistency of the rule of law that attracts oligarchs from countries like Russia to “park” their often-illicit money in the United States. They know that here in the U.S. arbitrary government favoritism and strong arming will not take their wealth away.
The Stanford Encyclopedia of Philosophy explains why rule of law is so intricately woven into democracy:
“The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law where there is a suggestion of unauthorized action by those in power.”[10] (emphasis mine)
Rule of law embraces principles and procedures, both formal and informal. These include clarity, publicity, stability, and perspectivity (i.e., applying law or rule to future conduct so everyone knows in advance the consequences of a law or rule violation). Also included are substantive ideas of presumption of liberty and respect for private property rights.[11] In a society governed by the rule of law, we all know “what the rules are”, the consequences of violating those laws, and expect them to be applied equally to all. At least that is what we were taught in our civics classes to expect, right?
An Important Component - Equality Before the Law
The rule of law rests on values. That is why one hears it used most often within the context that “no one is above the law” or the law applies equally to all regardless of person, sex, race, place, station, or position. This intricate part of the rule of law is commonly referred to as “equality before the law”.
Historian Heather Cox Richardson emphasizes the importance of the relationship of equality before the law to the concept of freedom and the rule of law, saying:
“Once you give up the principle of equality before the law, you have given up the whole game. You have admitted the principle that people are unequal, and that some are better than others. Once you have replaced the principle of equality with the idea that humans are unequal, you have granted your approval to the idea of rulers and servants. At that point, all you can do is to hope that no one in power decides that you belong in one of the lesser groups.”[12] (emphasis mine)
Few would argue that this is a fundamental precept of American democracy that has been observed by most of our presidents for more than two centuries. The rule of law and its close “cousin”, equality before the law, allow the American government to rest solidly on the “consent of the governed” and their confidence in the equity of that government.
The Real Damage of Abandoning the Rule of Law Does to Democracy
At least that has been the case until the Trump Administration. The rule of law was ignored during this presidency so many times it is legion.[13] For those of us who lived through the Nixon presidency and his Watergate scandal, we thought we had seen the worst a president can do in terms of disdain for the rule of law. Little did we know how much worse this disregard for the rule of law by a sitting president could get.
Another danger that leaders in a democracy who ignore the rule of law bring to the table is the signal they send to their supporters that they too can ignore it. The message conveyed to the leader’s followers is that there are no consequences if they too ignore or disobey the law. Nothing happens to the leader when he or she violates the law, so they do not have to be concerned about it either. Or, if they do get convicted of law breaking, their “boss” (i.e., the leader in the so-called democratic government), will pardon them. Consequently, they are free to create their own arbitrary and capricious norm, a dangerous one to democracy, where they not only demand “law and order”, but see themselves as the “arbiters of legality”.
The roots of this idea of the leader and his followers as their own “arbiters of legality” run deep in this nation according to Eric Levitz of the New Yorker’s Intelligencer. Levitz points out that when leaders and their followers take on this role, “anarchic conservatism” runs amok, which has happened at times in our history. For example, Andrew Jackson, a president ironically hailed as a “great democratizer”, was a champion of settlers who defied federal restrictions with their “liberty” to kill Indigenous people and confiscate their lands.”[14] Another example- the South had a “complicated relationship” with the concept of federal sovereignty, to say the least. The South’s leaders ignored the Constitution and seceded. The list of such examples runs into our recent past when we saw a mob on January 6, 2021 designate themselves as the “final arbiters of legality” and storm the Capitol with the intent to stop the certification of a presidential election. Disdain for the rule of law is indeed dangerous to a democracy.
Is it any wonder then, that our founders, who had seen and suffered much from the disregard for the rule of law by the King of England, rejected any form of government that rested on anything other than the rule of law? Yet, evidence is clear that disregarding the rule of law happens in this nation to this very day, including at it the highest echelons of our government.
Pardon Abuse and What Can be Done About It
Not long after the Trump presidency ended, the Boston Globe (the Globe) highlighted how much damage to a democracy the abuses to a U.S. president’s pardon ability can cause. Article II, Section 2 of the U.S. Constitution grants the President this power saying succinctly:
“…and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”[15]
The Globe explains, a president’s pardon ability was intended to remedy those situations where it could be demonstrated that the criminal justice system has been overly harsh in its punishments. And so, for the most part, it has been used in that way- to right the “…wrongs of the country’s criminal justice system. The president’s pardon power was never intended to be used to grant “political and personal favors, or even as a tool of coercion or manipulation”[16], that is- until the Trump presidency.
As the Globe argues: “Donald Trump’s abuse of the pardon power to reward criminal loyalists is a precedent for a future authoritarian leader to commit crimes without consequence. It must be curtailed by Congress.”[17] Of the 237 people Trump granted clemency, the Globe reports the findings of the Lawfare Blog that over one hundred of them were people “who either had personal connections with the former president or advance his political cause.”[18]
The Globe argues this is a “wake-up” call to both political parties that executive clemency must be reformed to prevent these abuses. Reforms recommended by the Globe to deal with these pardon abuses include the president establishing by executive order a clemency board appointed with criminal justice experts. This is consistent with how many states oversee clemency, as contrasted with the federal government’s present practice of having clemency being processed by the Office of the Pardon Attorney housed in the DOJ (unless this office is circumvented by the White House). The most major reform would be for Congress to “pass a constitutional amendment that would narrowly constrain the president’s pardon power” to avoid conflicts of interest and obstruction of justice” when granting executive clemency.[19] (emphasis mine)
There You Have It- Why Braun’s Pardon Matters
Jonathan Braun did indeed get his pardon in the form of a commuted sentence from then President Trump. However, how he got it did not, and should not, go unnoticed by all Americans. It damaged our democracy by ignoring the rule of law.
Most of us are familiar with the board game Monopoly and that game’s use of a “Get Out of Jail Free Card”. That card expedites a player’s ability to not only “leave jail”, but to get back in the Monopoly game as well as not have to pay a “fine” to the Monopoly board’s “bank”.
Today most Americans know exactly that the expression “Get Out of Jail Free Card” not only comes from the Monopoly board game, but they also know exactly what it means when applied as an analogy to everyday life. When we find out how poorly vetted and prolifically pardons and commutations were being handed out in the Trump White House, it is reasonable for the average American to ask questions.
Why was Jonathan Braun treated this way? Why did he get a “Get Out of Jail Free Card”? Who did he know at the White House? Why was the DOJ circumvented by this and the other pardons granted during the Trump presidency? Is the White House the place to go to get one’s “Get Out of Jail Free Card”? What happened to the rule of law? What happened to equality before the law?
It seems both of these democratic norms slipped away in early 2021, at least for a time. Hopefully, it doesn’t mean our democracy is slipping away permanently. But, it could. That is, unless we are watchful and demand that the rule of law and equality before the law be upheld by our democracy’s leadership. That part is up to us and is why we should all monitor closely the criminal charges now pending against former president Trump and his associates. In fact, the District Judge in Trump’s Washington, D. C election interference case just ruled that he doesn’t get a “get of jail free” pass either.[20] We will see how the rule of law plays out in these proceedings as well.
Stay tuned…we will continue exploring topics like this one that are not given near enough time and emphasis in our civic education efforts, if they are even taught at all.
Democracy is so important. But it’s hard to keep, and it’s easy to lose. It’s up to us, and only us, to protect it.
[1] Aristotle - Stanford Center on Poverty and Inequality
[2] “A Troubling Trump Pardon and a Link to the Kushners”, by Michael S. Schmidt, Maggie Haberman, Jonathan Swift, and Alan Feuer, The New York Times, November 26, 2023, (nytimes.com)
[3] “A Troubling Trump Pardon and a Link to the Kushners”, The New York Times, November 26, 2023, Ibid.
[4] “A Troubling Trump Pardon and a Link to the Kushners”, The New York Times, November 26, 2023, Ibid.
[5] “A Troubling Trump Pardon and a Link to the Kushners”, The New York Times, November 26, 2023, Ibid.
[6] John Adams, Novanglus Essays, No. 7, Quotes – John Adams Historical Society (john-adams-heritage.com)
[7] Rule of Law, Political Philosophy, Rule of Law- Definition, Implications, Significance, by Naomi Choi, Britannica, formed from her SAGE Publications Encyclopedia of Political Theory (2010), https://www.britannica.com/topic/rule-of-law
[8] Rule of Law, Political Philosophy, Rule of Law- Definition, Implications, Significance, by Naomi Choi, Ibid
[9] Rule of Law, Political Philosophy, Rule of Law- Definition, Implications, Significance, by Naomi Choi, Ibid
[10] The Rule of Law, Stanford Encyclopedia of Philosophy, First Published June 22, 2016, https://plato.standard.edu/entries/rule-of-law
[11] The Rule of Law, Stanford Encyclopedia of Philosophy, First Published June 22, 2016, Ibid
[12] Letters From An American, by Heather Cox Richardson, May 17, 2021, Copyright 2021
[13] “Trump’s Unbroken Pattern of Disdain for the Rule of Law”, by Joan Biskupic, February 22, 2020, CNN, https://www.cnn.com/2020/02/22/politics/trump-justice-barr-rule-of-law/index.html
[14] “Trump Is Growing the GOP’s ‘Anti-Rule of Law’ Wing”, by Eric Levitz, New Yorker Magazine, December 10, 2020, https://nymag.com/intelligencer/2020/12/pa-gop-letter-mask-protests-oath-keepers.html
[15] The Constitution, The Essential Users Guide, pg. 93, Copyright 2016 Time Inc. Books, Published by Liberty Street, an Imprint of Time Inc. Books, 225 Liberty Street New York, NY 10281
[16] “Rewards for Doing the President’s Bidding”, Editorial Board, Boston Globe, June 2021, Part 5, https://apps.bostonglobe.com/opinion/graphics/2021/06/future-proofing-the-presidency/part-5-rewards-for-doing-the-presidents-bidding/
[17] “Rewards for Doing the President’s Bidding”, Editorial Board, Boston Globe, June 2021, Part 5, Ibid
[18] “Rewards for Doing the President’s Bidding”, Editorial Board, Boston Globe, June 2021, Part 5, Ibid
[19] “Rewards for Doing the President’s Bidding”, Editorial Board, Boston Globe, June 2021, Part 5, Ibid