The president of the United States has the constitutional authority to pardon any defendant and commute any sentence. It is a power rarely used. Recently, US President Donald Trump commuted an outrageously unjust sentence imposed on a Chasidic Jew named Sholom Rubashkin, who had been convicted of a bank fraud that generally warrants a sentence of a few years and a fine. This case was tried in the Iowa federal court. The prosecution manipulated the sale of Rubashkin's company to lower the price, thereby increasing the loss to the bank. Under the federal sentencing guidelines, the greater the loss, the higher the sentence. The prosecutor recommended a sentence of 25 years, more than 10 times what this crime warranted. But even that was not enough for the judge, who -- remarkably -- increased the sentence over the one recommended by the overzealous prosecutor. The final sentence was 27 years -- more than sentences often imposed on murderers, rapists, armed robbers and mobsters. This was especially unjustified, as Rubashkin had a clean record and a large family. There is no explanation for this wildly excessive sentence other than bias.
Appeals failed, but those seeking justice would not give up. I received a call from a prominent business and religious leader, Isaac Schapira, who pleaded with me to look into the case. I did, and concluded that this was a perfect case for a presidential commutation of such an unjust sentence. I was not alone. Dozens of former prosecutors, judges and other law enforcement officials agreed, including former Attorney General Michael Mukasey, former Director of the FBI, Louis Freeh, Harvard Professor Phillip Heymann, former Justice Department official Larry Thomson, and many others. We were joined by elected officials, including Senator Orrin Hatch and Congresswoman Nancy Pelosi. The advocates for justice for Rubashkin included Republicans and Democrats, liberals and conservatives, prosecutors and defense attorneys, Jews and non-Jews, women and men. In this age of partisan division, we all united around this call for simple justice and compassion. We worked with Rubashkin's superb lawyer, Gary Apfel, and his earlier lawyers, including the legal icon, Nathan Lewin.
The joint effort was coordinated largely by an organization called The Aleph Institute. The moving force was an energetic rabbi, Zvi Boyarsky, who seemed never to sleep, and called others and me at all hours of the day and night. He solicited letters from prominent individuals from the day of the sentencing until the day of the commutation.
We had tried in vain to obtain a commutation from President Obama, who had pardoned or commuted the sentences of many small-time drug dealers who had received unjustly long sentences, but he did not act on the Rubashkin request.
When President Trump was elected, we renewed our effort. I played a small role in bringing the matter to President Trump's attention. I had been invited to the White House to discuss the Israeli-Palestinian conflict, because I have a long-term friendship with Israel's Prime Minister Benjamin Netanyahu. When that discussion was concluded, I raised the issue of Rubashkin, emphasizing the unfairness of the prosecution manipulating the sales price of his company and the loss to the bank in order to secure a higher sentence. As an experienced businessman, President Trump understood the unfairness of this tactic. He said he would look into the matter of commutation.
Several months later, he commuted Rubashkin's sentence to the 8 years he had already served He did not pardon him -- and did he not commute the large financial penalty and probationary aspects of the sentence. Rubashkin was immediately freed from prison on the last day of Chanukah and returned to his large family and community to celebrate a joyous Sabbath.
There are several important lessons to be gleaned from President Trump's act of justice and compassion. First, even in this age of hyper-partisanship, there are issues of simple justice that can unite diverse elements. Second, no one should ever give up on the quest for justice, even when all legal appeals have been exhausted. The Bible commands, "Justice, Justice you must run after". It requires active pursuit of justice -- not passive acceptance of injustice -- for the right result to be achieved As Martin Luther King Jr. put it: "The arc of the moral universe is long, but it bends toward justice." Thanks to all the justice-seekers who worked together, and thanks to President Trump, on the last day of Chanukah, that moral arc moved a little bit closer to justice.
(Image source: ILTV video screenshot)
Alan M. Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of "Trumped Up: How Criminalization of Political Differences endangers Democracy."