What Pardons Can (and Can't) Do for Trump's Defense: QuickTake
(Bloomberg) -- President Donald Trump’s recent focus on pardons has spurred speculation that he’s sending a signal to allies who are under scrutiny by Robert Mueller, the special counsel probing Russian interference in the 2016 election. The possible message: Stay quiet, don’t cooperate with prosecutors, and Trump will use the president’s unilateral pardon powers to absolve you of wrongdoing and keep you out of jail. Trump could, if he chooses, use pardons to frustrate many elements of the legal investigations of him and his associates. But pardons alone won’t relieve all the pressure.
1. Who could Trump pardon?
The U.S. Constitution vests the president with power to pardon anyone convicted or accused of a federal crime. A president even could issue a preemptive pardon to someone not yet charged, for actions already committed, such as the one granted to Richard Nixon by his successor as president, Gerald Ford. In Trump’s case, he could, in theory, pardon any of his current or former aides who might otherwise feel pressure to turn on him and cooperate with federal prosecutors. That list includes people who have been charged by Mueller -- like Trump’s onetime campaign chairman, Paul Manafort, and first national security adviser, Michael Flynn -- or are under federal investigation, such as his longtime legal trouble-shooter, Michael Cohen.
2. What suggests Trump is considering using pardons this way?
It’s mostly speculative at this point. But Trump in the past has at least broached the idea of using pardons to short-circuit an investigation he considers unfair, and his lawyers have asserted the president’s right "to pardon any person before, during or after an investigation and/or conviction." Trump said he could even pardon himself, though he doesn’t expect to need to. Then there’s Trump’s recent use and mentions of pardons, which could be read as laying the foundation for pardons to come.
3. How so?
He’s pardoned conservative author Dinesh D’Sousa, who pleaded guilty in 2014 to using straw donors to evade campaign finance limits; Scooter Libby, the former chief of staff to Vice President Dick Cheney who was convicted in 2007 of obstruction of justice and perjury, and Joe Arapio, the former Maricopa County, Arizona, sheriff who was found guilty of criminal contempt of court in 2016. Trump also volunteered that he may pardon Martha Stewart (convicted in 2004 of lying to federal investigators about a stock sale) and former Illinois Governor Rod Blagojevich (serving a 14-year prison sentence on corruption charges). The crimes involved -- corruption, lying to investigators, obstructing justice, disobeying court orders, violating election law -- are, coincidentally or not, akin to some potential crimes being investigated by Mueller. Former U.S. Attorney Preet Bharara, for one, said he believes Trump’s allies are receiving a message from the president: "He’s making it very clear he is prepared to pardon anyone for any reason without any review," Bharara said June 3 on CNN’s "State of the Union."
4. So why couldn’t Trump pardon these probes away?
Because state and local prosecutors, particularly those in New York, may be able to bring state charges against some of the same people Mueller is probing, and the president’s pardon power doesn’t extend to state crimes. Trump associates seen as most vulnerable to state charges include Manafort, who was reportedly a subject of investigation by the New York attorney general, and Cohen, who lives in New York and is the subject of a criminal probe by Manhattan federal prosecutors. (He hasn’t been charged with wrongdoing.) Trump’s campaign, which Manafort led, was headquartered at Trump Tower in New York, and Manafort owned New York real estate. Cohen faces almost $300,000 in state and city tax warrants on taxicab medallions he owns and had a business associate, "Taxi King" Evgeny Freidman, who’s pleaded guilty to failing to pay taxes. Even if federal charges are dropped, the prospect of state charges could provide an incentive to cooperate.
5. What determines if state charges are allowed?
The Constitution’s Fifth Amendment provides that no one will “be subject for the same offence to be twice put in jeopardy of life or limb.” That means a person who’s accused of a federal crime can’t be charged again for the same misconduct -- at least not by federal authorities. Double jeopardy generally doesn’t apply between states, or between state and federal governments, which are considered “separate sovereigns" with independent interests in pursuing violations of their own laws. But about half of U.S. states -- including New York -- provide enhanced double-jeopardy protections under their laws.
6. What makes them enhanced?
New York prosecutors can’t bring a case against someone who’s been charged elsewhere if the new charges are “based upon the same act or criminal transaction." But there are about a dozen exceptions. One allows for state prosecutions for evading New York income tax. New York also has strong anti-fraud laws. Although certain types of misconduct are exclusively federal, the state has authority to go after fraud and other crimes.
7. What would a federal pardon mean under New York law?
In April, New York’s then-attorney general, Eric Schneiderman, called attention to the issue by saying that a "loophole" in New York law might mean that "a strategically timed pardon could prevent individuals who may have violated our state’s laws from standing trial in our courts as well." He called on state legislators to amend the law to make clear that prosecution in New York is permitted after a presidential pardon. Schneiderman’s successor, Barbara Underwood, has also endorsed such a law. Whether the state legislature will act is unclear.
8. Are New York authorities investigating Trump associates?
Prosecutors from the office of Manhattan District Attorney Cyrus Vance Jr. are known to have investigated real estate deals by Manafort. Schneiderman, when he was state attorney general, reportedly probed Manafort’s financial dealings, including real estate deals and money moved between U.S. and offshore bank accounts. Those offices haven’t said whether their work continues.
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