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Following news that President Donald Trump pardoned Joe Arpaio, an Arizona county sheriff who was convicted for criminal contempt when he refused to follow a court order to stop profiling Latinos, a former foreign policy adviser to Barack Obama decried Trump’s pardon.
"Obama used his pardon and commutation power to give a second chance to people who deserved empathy, not racists who showed none," Ben Rhodes tweeted.
Fox News contributor Katie Pavlich came out in Trump’s defense.
"Your boss pardoned a traitor who gave U.S. enemies state secrets, he also pardoned a terrorist who killed Americans," Pavlich replied in a tweet that was shared over 24,700 times as of Aug. 29, 2017. Trump retweeted it.
Pavlich did not respond to our requests for clarification or comment, although she was likely referring to Chelsea Manning and Oscar Lopez Rivera respectively, who Trump referenced in an Aug. 28, 2017, press conference.
Neither of these individuals, however, were pardoned by the former president. As Trump said in the conference, Manning and Lopez Rivera were granted commutations, or shortened sentences.
Manning was an Army intelligence analyst convicted of leaking American military and diplomatic information through Wikileaks in 2010. Manning’s 35-year sentence was the longest ever imposed in the United States for a leak conviction, but it was cut short at seven years when Obama commuted, or shortened, her sentence.
A transgender woman in a men’s military prison, Manning attempted suicide twice.
Lopez Rivera helped lead the Armed Forces of National Liberation, a Puerto Rican nationalist movement. The group’s most famous bombing, in 1975, resulted in four deaths, although no one was charged with carrying it out. He received a 55-year sentence for seditious conspiracy, attempted robbery, explosives and vehicle theft that was extended 15 years after conspiracy to escape.
Lopez Rivera was the last remaining member of the Armed Forces of National Liberation still in prison. In 1999, he rejected President Bill Clinton’s conditional clemency offer. Obama shortened his sentence to 36 years.
Pavlich acknowledged she conflated pardons and commutations on Twitter without apologizing or taking it down.
"Ah, I see msm wants to squabble over pardon vs commutation (while also offering ‘unbiased’ opinions on the issue). Doesn't change the point," Pavlich tweeted on Aug. 28, 2017.
The Justice Department classifies both commutation of sentence and pardon as forms of executive clemency, which the president can constitutionally exercise on those who have committed federal crimes.
A commutation reduces the severity of a sentence, while a pardon undoes the conviction, removing its remaining consequences. Those consequences include such civil disabilities as "restrictions on the right to vote, hold state or local office, or sit on a jury."
But according to Margaret Love, a former U.S. pardon attorney, civil disabilities are restored automatically by most states anyway. Pardons significantly strip away the hundreds of other collateral damages that come with criminal records, affecting jobs, licenses, benefits and public contracting opportunities. These remain in place for sentences that have simply been shortened.
Michigan State University law professor Brian Kalt agreed that pardons are more substantial.
"But that doesn’t mean that one can’t compare them — if people think that the Manning or Lopez Rivera commutations were wrong, the fact that they were commutations and not pardons doesn’t make them okay," Kalt said.
Arpaio’s pardon defies the norms of Justice Department clemency forms, as we’ve explained before. Trump sidestepped the Justice Department in pardoning Arpaio, who had not yet received or served a sentence. The Justice Department traditionally administers pardons after at least five years of serving time and expressing remorse.
Pavlich said Obama "pardoned a traitor who gave U.S. enemies state secrets, he also pardoned a terrorist who killed Americans."
Obama did not pardon Manning or Lopez Rivera, instead issuing commutations, which alleviate punishment for, rather than grant forgiveness for, a federal crime. The legal consequences of each differ significantly, though both represent executive forms of clemency. Still, the difference here is not trivial. We rate this claim Mostly False.
Katie Pavlich, Tweet, Aug. 26, 2017
Katie Pavlich, Tweet, Aug. 28, 2017
PolitiFact, Trump and pardoning Joe Arpaio: What to know about the process, Aug. 22, 2017
Justice.gov, Frequently Asked Questions about Executive Clemency, accessed Aug. 28, 2017
Youtube, President Trump, Finnish president hold press conference, Aug. 28, 2017
New York Times, Obama Commutes Sentence of F.A.L.N. Member Oscar Lopez Rivera, Jan. 17, 2017
NPR, Chelsea Manning, Once Sentenced To 35 Years, Walks Free After 7 Years, May 17, 2017
New York Times, Chelsea Manning tried committing suicide a second time in October, Nov. 5, 2016
Chicago Tribune, Puerto Rican militant Oscar Lopez Rivera freed from custody after 36 years; will be in Chicago Thursday, May 17, 2017
Email interview with Steven Cheung, White House spokesman, Aug. 28, 2017
Email interview with Brian Kalt, Michigan State University law professor, Aug. 28, 2017
Phone interview with Margaret Love, U.S. Pardon Attorney between 1990 and 1997, Aug. 28, 2017
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