The Pardon Boomerang: Why Trump Associates May Need to Decline Any Offer of a Pardon

[DonViejo]

by Ryan Goodman
February 21, 2018

With some conservatives urging the President to pardon Trump associates caught up in the Russia investigation, there’s a reason that option may simply fail the president. That’s because individuals like Jared Kushner, Donald Trump Jr., and Paul Manafort will need to think twice before accepting any offer of a pardon. Especially if their actions involved financial wrongdoing, these individuals must contemplate not only federal prosecutors coming after them, but also state attorneys-general like New York’s Eric Schneiderman. The dilemma for these Trump campaign affiliates is not simply that a presidential pardon would fail to erase the risk of a state prosecution, but rather that their acceptance of such a pardon may significantly increase the prospect that state prosecutors will both pursue a case and secure a conviction. Let me be more specific as to the reason why: individuals run a significant risk that acceptance of a pardon would be used by state prosecutors as an admission of guilt—bolstering the potential success of any prosecution for related crimes in New York and elsewhere.

This is one more area in which the Russia investigation can take a page of history from Watergate.

The framework in which Kushner and others must operate is fairly well set. A president’s pardon power applies only to federal crimes. Anyone pardoned for federal offenses would, accordingly, remain liable for state crimes that cover the same underlying conduct. Professor Jed Shugerman has led the way in describing the large set of potential state-level offenses that could apply to conduct related to the Russia investigation—including financial crimes and criminal invasion of privacy for abetting the distribution of stolen emails. Accept a pardon for money laundering under federal law? Look out for prosecutions under state money laundering statutes.

But this is not simply about the residual power of a state attorney-general to prosecute in the wake of a presidential pardon. What Trump campaign affiliates have to fear is that acceptance of a pardon could add booster rockets to the state prosecutors’ efforts for closely related state crimes. Officials like New York’s Schneiderman may feel they have an ace in hand if they can walk into a state courthouse with a defendant’s admission of guilt implied by having accepted a presidential pardon. This get-out-of-federal-jail card comes at a price.

more
https://www.justsecurity.org/52775/trump-associates-decline-offer-pardon/

[BigmanPigman]

1. I asked about pardoning of Manafort on DU

last night and basically he could do it but he shouldn't do it since it would cause the Moron and Manafort (and pals) more harm than good in many ways. It makes sense and is reasonable, but when have we ever seen the Moron do anything rational? Never.

[rickford66]

2. They couldn't take the 5th either.

[Jim Lane]

6. They could still take the Fifth in a state criminal prosecution.

The pardon would eliminate their Fifth Amendment rights only with regard to conduct that was exclusively an alleged federal crime. For example, the Foreign Agents Registration Act is a federal statute. Someone with a Trump pardon, shielded from FARA liability, couldn't plead the Fifth with regard to work for the Ukrainian government without having registered. Many states, however, have their own requirements about lobbying. Someone who lobbied state officials without the required registration or disclosure would still be entitled to plead the Fifth in those respects.

[BSdetect]

3. Can he pardon someone before they are convicted?

[sarah FAILIN]

5. Ford pardoned Nixon

But they violated state laws too. No pardons for that.

[tritsofme]

4. I understand the concept, but in the case of Nixon, if his acceptance of the pardon is an admission

of guilt, I’ve never understood what exactly he would have admitted to. Ford’s pardon below:

Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

Ford didn’t pardon him for specific crimes, and stipulated he may or may not have committed them, so I’ve never understood what exactly he would be admitting guilt by accepting the pardon. So those words from Ford always seemed more self-serving than meaningful to me.

If Trump issued a similar “general pardon” I don’t see how it would make them more vulnerable to state prosecution, or an admission of guilt to the state’s specific charges. Interesting article, Burdick has always been difficult for me to understand.