Remember Kristian Saucier? The Department of Justice prosecuted the US Navy enlistee under the Espionage Act (18 USC 793) for taking personal pictures of classified areas the submarine on which he was assigned, then attempting to destroy the evidence. There was no evidence at the time that Saucier ever intended to disseminate the photos, but rather took them for his own memorabilia. While Hillary Clinton got a pass for exposing much more significant classified information for a far longer period of time, and despite a clear record of courts-martial for other similarly situated defendants, the DoJ pushed the Saucier case all the way through to a felony conviction and a one-year prison sentence.
Now that a change in administration has come, Saucier’s attorneys have filed a formal request for a pardon from Donald Trump — encouraged by one of his closest aides, according to Fox News:
Supporters of Kristian Saucier, 29, say the one-year sentence he drew last summer was overly harsh in light of treatment afforded former Secretary of State Hillary Clinton over her illegal private email server, and former President Obama’s granting of clemency to Army Pvt. Chelsea Manning, who leaked classified information.
Saucier’s attorney, Ronald Daigle, told Fox News that he met with Trump’s national security adviser, Lt. Gen. Michael Flynn, about Petty Officer First Class Saucier’s case, and at Flynn’s request submitted a formal pardon request.
It’s somewhat puzzling as to why Barack Obama didn’t take action before leaving office. After all, he issued a commutation to Chelsea Manning on the basis of taking responsibility for his actions, which Saucier has done all along. Saucier didn’t steal 700,000-plus documents and send them to unauthorized foreigners for publication, either, endangering military, intelligence, and diplomatic assets in the field.
Trump has three options here: pardon, commutation, or no action at all. If he’s planning to pursue legal action against Hillary, it might be tricky to justify a pardon for Saucier, but a commutation would address the injustice of the scale of the DoJ’s pursuit of the case. If Trump doesn’t care about Hillary, then a pardon might be possible, although Saucier’s consistent acknowledgment of his own responsibility could argue against it. In light of the Manning clemency action, at least a commutation is warranted for Saucier.
It’s precisely because of these injustices that presidents have the plenary power of clemency, even if most presidents hesitate to use it. In my column today for The Week, I urge President Trump to follow Barack Obama’s examples in the last year of his presidency (with two major exceptions, of course), but not to wait to correct injustices as Obama did:
Crass, nakedly political clemency actions only heighten the political risks of future clemency actions. And that’s a shame, because Obama actually demonstrated the wisdom of investing the presidency with the power of clemency — even if he waited until he could no longer suffer political damage for doing so.
The outgoing White House celebrated Obama’s final total of 1,715 commutations, noting that it exceeded the total number of commutations by his last 13 predecessors combined. However, only 21 of those 1,715 came before the second midterm of Obama’s presidency. He issued 163 in 2015, ramping up to 992 in 2016 — most of which came after the election on Nov. 8 — and hundreds more in January 2017.
Nevertheless, Obama’s commutations were targeted to an issue where he has consistently argued that injustice occurs: mandatory federal sentencing, especially in non-violent drug cases. This is precisely why presidents have this authority — to correct what they believe are demonstrable injustices in the federal system. The founding fathers understood that no system of justice is perfect, and that the traditional power of lords in the English feudal system to grant mercy could be used to ensure that presidents and governors of states can address injustices as they occur. Whether one agrees with Obama that these lengthy sentences are indeed injustices, the people elected Obama to exercise that judgment, and in these cases he did so consistent with his stated policies and beliefs. …
The best way to eliminate injustice is to refine and transform our system of government to stop them before they occur. Each president has a different vision for that purpose, but they have the tool of clemency to use while they pursue those policy goals. The quality of presidential mercy should not be restrained to its final stanza.
Kristian Saucier provides a good opportunity to start on that project, but there are lots of other Americans who have been targeted as criminals because of overregulation and selective prosecution. Let’s hope that Trump fully embraces his ability to correct these cases in the short term while fixing the system in the long term.