Pardoning Defendants in Mueller Investigation Expands President's Legal Exposure, ACS-CREW Report Finds

Date: May 10, 2018
Contact: Katherine Shek, kshek@acslaw.org

Washington, DC — President Trump will not be able to “pardon his way out” of the Department of Justice investigations, according to a newly released report by the American Constitution Society and the Citizens for Responsibility and Ethics in Washington (CREW). Trump has signaled his willingness to issue presidential pardons to targets of these investigations into potential cooperation between Russia and the Trump Campaign.

Authors of, “Why President Trump Can’t Pardon His Way Out of the Special Counsel and Cohen Investigations,” point out several reasons a pardon strategy is fatally flawed. Culpable individuals in the special counsel and Cohen investigations may not be able to escape state criminal liability even if they receive a presidential pardon. Some states have no prohibition on successive federal and state prosecution for the same crime. Even where states have provided greater double jeopardy protections, the laws may not serve as a complete bar to state prosecution. Then there is the possibility of civil liability and civil asset forfeiture — neither of which would be ameliorated by a presidential pardon.

The pardon strategy is also flawed because it increases the political and criminal peril that President Trump faces. Granting a pardon in exchange for a witness’s refusal to cooperate with federal or state prosecutors, or with other corrupt intent, could constitute federal crimes.

The key findings of the ACS/Crew report are:

• Presidential pardons do not cover state prosecution. A pardon can wipe away or preempt a federal criminal conviction (or set of convictions), but state authorities, not the president, have the power to pardon state offenses. For this reason, the fact that the targets in the special counsel and Cohen investigations are facing allegations that could lead to state prosecutions means that they may still face criminal liability even if they receive a presidential pardon.
• The federal protection against double jeopardy does not prohibit successive state and federal prosecutions for the same crime. The constitutional protection against double jeopardy applies only to each sovereign, and the individual states as well as the federal government are independent sovereigns.
• State protections against double jeopardy are sometimes more expansive than the federal protection; however, they cannot be relied upon to pose a bar to successive prosecutions. Some state double jeopardy provisions do prohibit successive state and federal prosecutions where the federal prosecution has either gone to trial or resulted in a guilty plea; however, state crimes that are sufficiently distinct from the federal offenses tried or admitted may still be brought.
• A presidential pardon would, moreover, not shield defendants from exposure to federal and state civil litigation, including civil asset forfeiture. While civil litigation is generally less worrisome than criminal prosecution, it brings no shortage of its own worries. Because a pardon would not impact civil litigation related to criminal offenses under investigation by the special counsel, property and other assets owned by defendants could be subject to civil asset forfeiture despite pardons for their criminal conduct. Individuals also could still face civil sanctions such as professional censure, and in some civil litigation settings courts have even found acceptance of a pardon to be evidence of guilt.
• An obstructive pardon would expose President Trump to additional liabilities. Such a pardon would potentially constitute an impeachable abuse of power for which there is clear precedent in the articles of impeachment drafted by the House Judiciary Committee against President Nixon; it would expose the president to criminal liability for bribery, gratuities, and obstruction of justice for which he could be indicted after he leaves office (and possibly also before); and it could constitute an admission of guilt that President Trump’s campaign, transition team, and/or White House engaged in criminal misconduct.

“No matter what the president says on Twitter – there is no guarantee that a presidential pardon will completely protect defendants from state criminal activity,” said Caroline Fredrickson, President of the American Constitution Society.

“Pardons of people being investigated by the Special Counsel and other prosecutors may seem like an easy way out for the president, but he needs to know that solution just won’t work and in fact will leave him in even worse trouble,” said Norman Eisen, CREW’s Chair and former chief White House ethics lawyer.

“If President Trump issues pardons to impede the investigations into him, he will increase his own legal problems, potentially including providing strong new evidence of obstruction of justice,” said Noah Bookbinder, CREW’s Executive Director.

This paper was prepared for the Presidential Investigation Education Project, a joint initiative by ACS and CREW to promote informed public evaluation of the investigations by Special Counsel Robert Mueller and others into Russian interference in the 2016 election and related matters. This effort includes developing and disseminating legal analysis of key issues that emerge as the inquiries unfold and connecting members of the media and public with ACS and CREW experts and other legal scholars who are writing on these matters. The authors of this paper are available for interviews.

The American Constitution Society (ACS), founded in 2001 and one of the nation's leading progressive legal organizations, is a rapidly growing network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.