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Posted by Jeremy Kohler

https://www.propublica.org/article/trump-pardons-erased-prosecutions-second-term

In President Donald Trump’s first term, his Justice Department actively pursued those accused of fraud and corruption.

P.G. Sittenfeld, a rising Democratic star on Cincinnati’s City Council, was charged with taking a bribe in exchange for his support of development deals.

Devon Archer, a financier and corporate board member, was convicted in a scheme to defraud $60 million from a Native American tribal entity.

And Brian Kelsey, a former Republican state senator from Tennessee, was the target of a federal grand jury investigation for illegally funneling nearly $100,000 into his failed congressional campaign.

All three were subsequently sentenced to prison. Theirs are among more than a dozen criminal cases that were investigated or prosecuted in Trump’s first term and then undone, through the president’s clemency power, in his second term.

Trump has railed against what he considers the politicization of the Justice Department under his predecessor Joe Biden, and last week White House Press Secretary Karoline Leavitt said his priority was pardoning people “abused and used” by Biden’s Justice Department. But his actions in these cases show he has tried to undo even the work carried out by his own appointees. No president since Bill Clinton has used clemency to erase his own administration’s prosecutions on such a scale.

What’s more, Sittenfeld, Archer and Kelsey did not qualify for pardons under the standards outlined by the Justice Department, whose Office of the Pardon Attorney reviews applications and forwards its recommendations to the president. Those guidelines require applicants to wait at least five years after their conviction or release from custody, accept responsibility for their crimes, show evidence of rehabilitation and submit a formal petition for review.

The three men met none of those criteria. Their pardons were arranged by them or their lawyers directly with officials in the White House — or, in Archer’s case, after he testified before congressional Republicans in an investigation into Biden’s son Hunter, which Trump said prompted “many people” to ask him to grant the pardon.

“It’s not that he’s correcting another administration’s mistakes,” Doug Berman, an Ohio State University law professor who studies clemency, said of Trump’s second-term pardons of people prosecuted under his first-term Justice Department. “He’s rejecting his own — or more accurately, (he’s rejecting) the work of people he appointed but didn’t fully control.”

Last week, Trump pardoned former Tennessee House Speaker Glen Casada and his onetime chief of staff, Cade Cothren, who were convicted by a jury in a kickback scheme. Prosecutors said that the two used a political consulting firm they secretly controlled to funnel state funds to themselves through a sham constituent-mailing program. Attorneys for Casada and Cothren said the men hadn’t done anything illegal but instead made some “rookie errors” that the prosecutors blew out of proportion.

The White House blamed the Biden Justice Department for “significantly over-prosecuting” the pair, pointing to an armed raid and proposed sentences “normally reserved for multimillion dollar fraudsters.” But the FBI raid happened on Jan. 8, 2021, during Trump’s last weeks in office. And though they were indicted in August 2022, while Biden was president, they were convicted in May and sentenced in September. The judge who handed down the sentence was Eli Richardson, another Trump appointee. 

A lawyer for Casada declined to comment. Cothren said in a text to ProPublica that although the case against him began and ended while Trump was in office, he had been “targeted by the corrupt, America-last bureaucrats that got held over from Biden’s DOJ — the actual people that should be behind bars for their crimes against this country.”

Taken together, Trump’s actions broke with what legal experts and clemency scholars say is a basic expectation of our presidents: that they stand behind their own prosecutors and law enforcement officers rather than erase or undermine their work and that clemency should be earned, not just granted to allies and public figures with political influence.

“You have to read all of these pardons in connection with the systematic destruction of the Justice Department as an objective agency that seeks to uphold the law and fight crime,” said Frank O. Bowman III, a professor emeritus of law at the University of Missouri who is critical of Trump. Bowman is a former special counsel to the U.S. Sentencing Commission who is writing a book about the history of clemency.

During the president’s first term, the Justice Department functioned as an independent law enforcement agency, Bowman said, though Trump viewed it as a bastion of what he called the deep state. Now, Bowman said, it’s a means to reward friends and punish enemies, as Trump directs Attorney General Pam Bondi to fire prosecutors who refuse to target individuals for prosecution, which she has done. 

“He always perceived honest prosecutors and honest cops as his enemies,” Bowman said. “And so he is now proceeding to destroy those institutions.”

Neither the White House nor the Justice Department responded to questions about why Trump had issued pardons to some of his first-term cases or to Bowman’s characterizations. A Justice Department spokesperson said in an email that the agency was committed to “timely and carefully reviewing all applications and making recommendations to the President that are consistent, unbiased, and uphold the rule of law.”

The Onetime Trump Critic

Sittenfeld hardly seemed like a candidate for Trump’s mercy. In addition to calling the president a demagogue, he had described him as a “buffoonish carnival barker” and a threat to democracy.

From the start, after his 2020 indictment, Sittenfeld insisted that he was the target of a wrongful prosecution and that he never promised official actions in exchange for campaign donations. The U.S. attorney overseeing the case was David DeVillers, a Trump appointee. DeVillers had pursued officials from both parties, leading a broad corruption crackdown that also took down Republican Ohio House Speaker Larry Householder, who is now serving a 20-year federal prison sentence and is also seeking a pardon.

Sittenfeld took $20,000 in donations to a political action committee that he controlled from undercover FBI agents who posed as developers trying to get city approval for a downtown project. In secretly made recordings played at trial, Sittenfeld promised he could “deliver the votes” on Cincinnati’s City Council.

After being pushed out when the Biden administration took office, DeVillers said he hoped the prosecutions helped future officeholders understand that “the idea that you can accept money with a ‘wink, wink, nudge, nudge’ promise to do something” is a federal crime.

A jury convicted Sittenfeld in 2022 on two of the six counts he was charged with: bribery and attempted extortion. He was sentenced in 2023 to 16 months in federal prison. An appeals court panel freed him after less than five months but later voted 2-1 to uphold his conviction, while all three judges urged the Supreme Court to clarify when a campaign contribution becomes a crime.

Lawyers at the well-connected Jones Day firm who handled Sittenfeld’s appeal at no charge were deeply tied to Trump’s world — through his first administration, his Justice Department and now his second-term government.

James Burnham, who argued the appeals, had served in the White House Counsel’s Office and the Justice Department during Trump’s first term. He was a partner at Jones Day when he began representing Sittenfeld, then founded King Street Legal in 2023. This year he spent six months as general counsel for the Department of Government Efficiency before returning to King Street, which boasts “deeper knowledge of the Executive Branch and its current dynamics than virtually any other law firm in Washington, D.C.”

Yaakov Roth, who was also a partner at Jones Day, helped argue Sittenfeld’s appeals too. Roth joined Trump’s second-term Justice Department as principal deputy assistant attorney general in the Civil Division. Noel Francisco, yet another Jones Day partner and Trump’s first-term solicitor general, was brought on to file Sittenfeld’s final appeal to the Supreme Court.

Sittenfeld and his lawyers argued that to prove bribery, prosecutors had to show an explicit deal — that he had agreed to take action for donations. Sittenfeld did no such thing, they argued; he merely expressed that he was “pro-development” and had long supported similar projects.

In a May letter to friends and family, later reported on by the Cincinnati Business Courier, Sittenfeld said Jones Day had a draft of a petition ready to file to the Supreme Court when he learned that Trump had pardoned him. He said he was stunned. “As I now understand it,” he wrote in the letter, “my case came on the radar of the White House counsel’s office and it was advanced for a pardon.”

He did not explain how that happened. Neither he nor his lawyers responded to requests for comment.

Kenneth Parker, the U.S. attorney under Biden who inherited the Sittenfeld case and saw it through to conviction, called the pardon “frustrating and disappointing.”

“I believe, and continue to believe, in the judgment of my prosecutors who did the case, the judgment of the FBI agents who handled the case, and I believe in the judgment of the jury who heard the case,” Parker said in an interview. The president or his aides, Parker added, should’ve consulted the team that prosecuted the case.

Sittenfeld is still pursuing his Supreme Court appeal, saying the conviction carries “collateral consequences” that include a $40,000 fine and damage to his reputation. The government filed a brief Monday supporting his effort.

Trump’s decision to pardon a onetime critic came as a surprise to many and prompted a range of reactions. Vice President JD Vance told USA Today that Trump had put politics aside. Other observers said the case was part of an effort by Trump, himself a convicted felon, to normalize political self-dealing.

“He and his team came to realize that they could turn political corruption into something they deemed fictional and nonexistent,” said David Niven, a political science professor at the University of Cincinnati. “They really have revolutionized the use of the pardon as a weapon, and in this case, as a weapon to erase the concept of political corruption.” The White House did not respond to Niven’s characterization.

A Witness Against the Bidens

Archer’s case was a particularly stark example of how Trump has used pardons to reward loyalty. In 2016, during President Barack Obama’s final full year in office, prosecutors charged Archer and his partners with persuading the Wakpamni Lake Community Corporation — a tribal entity in South Dakota — to issue more than $60 million in bonds. The money was supposed to fund development projects, but prosecutors said Archer and his partners diverted most of it to pay themselves and cover debts owed to earlier investors.

Andrew Calamari, the former director of the Securities and Exchange Commission’s New York office, who oversaw investigation into Archer and his associates, said in an interview that the loss to investors made it “one of those cases that kind of cries out for action.”

Archer denied wrongdoing and said he was a victim of financial fraud. He was prosecuted at trial and convicted by a jury in 2018, in Trump’s first term. A judge later set aside the conviction, but Trump’s Justice Department appealed the ruling and an appeals court reinstated it in 2020.

Archer had served with Biden’s son Hunter on the board of a Ukrainian energy company, Burisma, while Biden was vice president. In testimony before House Republicans in 2023, he said that Hunter Biden sometimes put his father on speakerphone during meetings with business associates, though he never heard Joe Biden discuss business deals.

Archer’s appearance made him a cause on the right, as Trump allies and conservative media used his testimony to bolster allegations of corruption by the Bidens and to argue that Joe Biden’s Justice Department was politically biased — pursuing Trump associates while protecting the president’s son. His supporters said prosecutors became more aggressive after he started cooperating with congressional Republicans. Before signing the pardon, Trump said Archer had been “treated very unfairly.” Archer did not respond to requests for comment.

As ProPublica reported, Trump’s pardons this year have erased not only convictions but more than $1 billion in court-ordered restitution. Archer’s case was among those in which victims lost out: He had been ordered to forfeit over $15 million and repay more than $43 million to his victims, in addition to being sentenced to one year and one day in prison.

Calamari, who left the SEC in 2017 and now is a lawyer in private practice, said that the claim Archer had been targeted was “nonsense” and that it was a “bread and butter” fraud case that was “the kind of thing that a Republican or a Democrat would have no trouble bringing.”

He said that when Trump began his flurry of clemency grants, he didn’t worry that Archer would be among the people pardoned because of the gravity of the case. A pardon in a case like this, he said, “undermines any faith in the law.” The White House did not respond to Calamari’s comments.

Connections to the White House

Like Sittenfeld, Kelsey is an example of someone granted clemency who had a lawyer with close ties to Trump — in his case, the lawyer responsible for advancing pardon requests to the president. That lawyer, David Warrington, a longtime Republican legal strategist who held various legal roles during Trump’s 2016 campaign, later became White House Counsel in Trump’s second term.

Leavitt, Trump’s press secretary, described Warrington’s office as central to advancing pardon requests to the president and Sittenfeld said it was the White House counsel who personally flagged his case for a pardon. Warrington did not respond to requests for comment.

The grand jury investigation that led to Kelsey’s indictment began under Don Cochran, the same Trump-appointed U.S. attorney who oversaw the investigation into Casada and Cothren. The October 2021 indictment accused Kelsey of conspiring to illegally funnel more than $90,000 in state campaign funds into his 2016 congressional race in Tennessee.

The indictment bore the lead signature of Mary Jane Stewart, a career federal prosecutor who’d spent four decades in the Justice Department, serving under U.S. attorneys appointed by presidents of both parties. She was first assistant under Cochran during the Kelsey inquiry and stayed on as acting U.S. attorney after Biden asked Cochran to resign.

Kelsey pleaded guilty in November 2022 to two campaign finance felonies. Four months later, represented by Warrington, he moved to withdraw his plea, saying he’d entered it “with an unsure heart and confused mind.” Warrington’s motion cited the birth of Kelsey’s twins and his father’s declining health, and it argued that the conduct wasn’t criminal.

The judge rejected the motion, ruling that Kelsey had knowingly and voluntarily admitted his guilt.

Kelsey’s new lawyers made a final bid to overturn his conviction. In one claim, they filed affidavits and secret recordings they said showed that prosecutors, after Biden took office, had pressured a witness to implicate Kelsey before the five-year statute of limitations ran out.

Prosecutors dismissed the motion as a “fishing expedition,” noting that Kelsey had already admitted under oath to the facts supporting his conviction.

In an interview, the witness, former Republican state Rep. Jeremy Durham — whose statements Kelsey said proved the case was driven by political pressure — said he was unaware of a partisan motive behind the investigation or of it being a priority for the Biden administration. He said agents told him only that the probe had been delayed by the COVID-19 pandemic.

As for Kelsey’s claim that he was targeted for being a Republican, Durham said, “I wouldn’t buy that” and that Kelsey “needs to beat that drum.”

Still, the claim appeared to resonate where it mattered most. Kelsey’s appeal was still pending in May when Trump granted him a full pardon — just two weeks into his 21-month sentence — and he was released from a prison camp in Kentucky.

The White House said Warrington — who by that time had been named White House counsel and was a central figure in deciding which pardons to advance to the president — played no role. Warrington “was fully recused from the entire process,” White House spokesperson Abigail Jackson said in an email.

In a text to ProPublica, Kelsey described that recusal as an obstacle he ultimately overcame when, he said, Trump “recognized this grave injustice for the weaponization that it was.”

The post A Tale of Two Terms: How Powerful Figures Were Prosecuted in Trump’s First Term, Then Pardoned in His Second appeared first on ProPublica.

https://www.propublica.org/article/trump-pardons-erased-prosecutions-second-term