Before President Trump even considers pardoning yet another political heavyweight like Rod Blagojevich, Eddie DeBartolo, or the just-sentenced Roger Stone, he should pardon people more deserving — including two people who, ironically enough, met at a dinner organized on Stone’s behalf two years ago.
To be clear, the 2018 dinner at Lynora’s restaurant in West Palm Beach wasn’t one for people without political connections. The whole point was to rally support within the pro-Trump community in southern Florida. But whereas Stone remains an apparently unrepentant scofflaw, one who has boasted about playing sleazy politics for decades, the two people with prior federal felonies who met there both have good cases for clemency. One has more than made up for a lack of administrative judgment, through a life marked before and after by tremendous philanthropy, while the other should never have faced federal prosecution on a gun charge that was arguably unconstitutional.
Their chance meeting at Lynora’s led Florida billionaire James Batmasian and one-time Alabama politician Stephen Nodine to help lead the successful campaign in Florida to reenfranchise ex-convicts, but that’s not why they merit pardons. (I think the Florida law is actually somewhat too lenient: There should be a predictable path for nonviolent felons to regain voting rights, but not without any intermediate demonstrations of good citizenship.) They, or people somewhat similarly situated, deserve a break based on the nonpolitical particulars of their cases.
Trump so far seems to issue pardons to send messages related to his own interest and image, but pardons instead should represent earned forgiveness and redemption.
I have Batmasian’s pardon application in my hands. It is a remarkable document. A self-made billionaire largely through real estate investment, Batmasian already was a philanthropic pillar of the community when he strayed into tax law violations. In addition to hundreds of full-time employees, Batmasian occasionally hired temporary help from carpenters, electricians, plumbers, and the like. Sometimes his employees, already having worked full work-weeks, also would join the temps. Administratively, it was less hassle to pay them all as contract employees — even the ones who already worked for him. They all signed independent contractor agreements acknowledging that they were responsible for income and FISA taxes for that work — even though, by law, he should have done the withholding himself for at least his regular employees.
“As an attorney and an experienced businessman,” he wrote, “I was not ignorant or confused about the tax laws governing employee payroll deductions … [But] I was managing a large portfolio of real properties, and I simply chose the most expedient path…. The United States relies on a voluntary tax system; it functions efficiently fairly only when tax payers act with honesty and integrity, which I manifestly failed to do … [and] was fully aware of what I was doing.”
Explaining that he was in no way a victim or otherwise meriting pity, he wrote: “Mine is a more ordinary story about a human being who failed to live up to his own ideals. And for that I am truly sorry.”
This would sound a bit too pat if Batmasian and wife Marta weren’t so well known for otherwise living out those ideals. One document lists at least 74 charitable organizations they support. Several organizations are ones they personally founded and oversee. Page after page of testimonials describe their personal, hands-on involvement with some of these charities — not just writing checks, and very large ones at that, but giving time through meaningful, human interaction.
Batmasian served eight months in prison a decade ago for his relatively minor tax fraud. His record is otherwise spotless. Now he wants a pardon. It looks like he has earned it.
As for Nodine, he grew up in southern Florida but became a prominent local officeholder, energetic and effective, in Mobile, Alabama. A womanizer and heavy user of prescription pain medication, his private life about a decade ago had spun out of control. Then his mistress Angel Downs died of a gunshot to the head after they had spent a day at the beach together.
Local prosecutors charged Nodine with murder. Through investigative reporting completely separate from each other, Mobile Press-Register reporter Brendan Kirby and I each determined that Downs almost certainly died by suicide. The evidence in that regard is now almost universally considered overwhelming. But Nodine was a loudmouth with plenty of enemies; federal prosecutors, clearly hoping to help pressure him as a way to help their state and local counterparts, slapped him with a truly outlandish gun charge.
Nodine had smoked a marijuana joint on the beach in western Florida on the day of the murder. He owned a gun, 90 minutes away, safely in Mobile. Prosecutors charged him with the crime of possessing a firearm while using a controlled substance — even though the gun was nowhere near him, and even though the gun was never even alleged to have been used in any crime.
The law against gun possession while using narcotics, 8 U.S.C. § 922(g)(3), is meant to stop major, violent drug runners. It is not meant to deny Second Amendment rights from misdemeanor-level marijuana users, especially when the gun isn’t even in the vicinity of the drug use. In 2012, the Fourth Circuit U.S. Court of Appeals threw out a similar conviction because the government had not shown “a ‘reasonable fit’ between the challenged regulation and a ‘substantial’ government objective.” Unless it does, the Fourth Circuit said the conviction would violate the defendant’s Second Amendment right to bear arms.
After my investigation and that of Kirby were published, embarrassed state prosecutors negotiated the false murder charge down to an “Alford plea” of domestic (nonviolent) harassment for earlier incidents. The Alford plea and punishment of two years behind bars seemed largely appropriate. The federal gun charge, for which Nodine served an additional year, was outrageous.
In addition to the Fourth Circuit ruling mentioned above, a growing number of legal experts identify problems with statutes making otherwise legal gun ownership illegal because of other alleged transgressions.
“It is insufficient to deprive persons of a constitutional right based on the intuition that they cannot be trusted with firearms—this contradicts Supreme Court instruction and treats the Second Amendment as a second-class right,” wrote Joseph Greenlee, a lawyer affiliated with several conservative think tanks, in a column published by the Federalist Society. The Supreme Court just last summer, with a 7-2 majority, threw out a gun possession conviction of a nonviolent immigrant whose student visa had lapsed, on the grounds that he did not know his lapsed status made him ineligible to handle a firearm.
The parallelism of that latter case with Nodine’s is inexact, but the key consideration involved the element of “scienter,” meaning a knowing violation. The court ruled that “the government must prove that the defendant knew … he belonged to the relevant category of persons barred from possessing a firearm.” Nodine clearly was not aware his on-the-beach weed use in Florida could make him a felon for a firearm in his closet in Alabama.
As Nodine’s mere ownership, in another state, of a firearm was completely unrelated to any crime and unrelated to his use of a tiny amount of marijuana (which I do not, by the way, condone), it is evident the government targeted him, out of all the millions of gun-owning pot smokers, only because they were playing the typical prosecutors’ game of tightening the screws on someone suspected of, but not yet proved to have committed, a larger crime.
For what amounted to sleazy living but not inherently felonious behavior, Nodine was incarcerated for three years. Ten years after his mistress’s suicide, Nodine is clean and sober, and a good citizen. His state harassment conviction will always be a millstone around his neck, but President Trump can wipe clean the federal gun charge with a pardon. In doing so, Trump would not merely remove the false and hugely damaging implication of violence from Nodine’s record, but also strike a blow against prosecutorial misuse of a vaguely worded statute — and a blow for Second Amendment rights.
Meanwhile, if pardons are meant as redemptive dispensations for sincere repentance of minor transgressions, James Batmasian’s case awaits. He’s certainly more deserving of mercy than the bribe-seeking Blagojevich or the flagrant perjurer Stone.
