Supreme Court Poised to Limit Computer Fraud Statute

Suppose your employer prohibits using the company computer system for personal purposes. You’re aware of the policy but you’re also a little behind on your Christmas shopping, so while logged in at work you spend some time on Amazon buying gifts. If your boss found out you might expect to be reprimanded, maybe even fired. You probably wouldn’t think you were potentially subject to federal prosecution. But under a legal theory advanced by the government before the U.S. Supreme Court last week in Van Buren v. United States, your holiday shopping could indeed be a crime. Fortunately, the Court seems poised to reject the government’s approach.

computer hacker

The Computer Fraud and Abuse Act

The criminal law in question is called the Computer Fraud and Abuse Act, or CFAA, 18 U.S.C. §1030.  The CFAA is the primary federal statute used to prosecute computer-related crime. It’s a complicated statute with a number of different sections. But in general, the CFAA prohibits breaking into a computer to harm that computer or steal information, commonly known as hacking. It prohibits sending malicious code or viruses that damage a computer or that allow the sender to obtain information without authorization — including “phishing” schemes. The CFAA also prohibits trafficking in computer passwords and extortion by threats to harm a computer or the information it contains.

A high-profile recent case involving the CFAA was the July, 2018 indictment brought by special counsel Robert Mueller of twelve Russian intelligence officers for computer hacking related to the 2016 presidential election. The indictment charges that the Russian agents hacked into computers and email accounts used by scores of individuals and organizations associated with the Hillary Clinton campaign and other Democratic organizations. The lead charge in that indictment: conspiracy to violate various provisions of the CFAA.

Van Buren v. United States

The Van Buren case argued before the Court last week involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime whenever he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The issue in Van Buren is the proper interpretation of the term, “exceeds authorized access.”

The defendant, Nathan Van Buren, was a police officer in Cumming, Georgia.  As part of an FBI sting, he ended up accepting several thousand dollars from Andrew Albo, an informant cooperating with the FBI. In exchange, Van Buren agreed to search a police database for a vehicle license plate number Albo gave him. (Albo told Van Buren the car belonged to a woman he had met at a strip club and he wanted to be sure she was not an undercover police officer.) Van Buren performed the search for Albo in the Georgia Crime Information Center database. He had been trained on the use of that database and knew he was allowed to use it only for legitimate law enforcement purpose.

Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe. 

Image of US Supreme Court, which decided the Bob McDonnell case
United States Supreme Court

Van Buren’s Position

In their briefs to the Court, Van Buren and those amici who support him argued that Section 1030 is, at heart, a computer hacking statute. It is primarily aimed at conduct that is the electronic equivalent of breaking and entering. According to Van Buren, the prohibition against exceeding authorized access therefore criminalizes obtaining information only when a person has no right at all to access that information. An example would be a Pentagon employee who is authorized to use the Department of Defense computer system for limited purposes related to her job, but then uses a stolen password to gain access to a different part of that system she is not authorized to view.

Van Buren unquestionably had the right to enter the database and access license plate data. In this instance he did so for an improper reason: because he had been bribed. That might subject him to job discipline or some other legal sanction, but it does not, Van Buren argued, violate the CFAA.  “Exceeding authorized  access” does not apply to obtaining otherwise accessible information for an improper reason. It applies, he argued, only when the defendant had no right to access the information under any circumstances.

Van Buren cited a number of examples of the potential consequences of the government’s position. Suppose workplace policy prohibits an employee from using the company’s computer system for social media, but she uses that system to log onto Facebook. Or an employee has a work-provided Zoom account that is to be used only for business but uses it for a group family chat on the weekend. Or someone uses a dating website but, in violation of the site’s terms of services, lies in his profile about how tall he is or about his age and then obtains information about potential partners.

 In each of these examples, the person has the right to access the information that was obtained, but did it in ways or for reasons that were not authorized. That is Van Buren’s situation as well. If the government is correct, he argued, then all of the people in those examples are criminals: they exceeded their authorized access by violating workplace policies or website terms of service.

Computer law expert Professor Orin Kerr, who filed an amicus brief, agreed with Van Buren and framed it this way: the CFAA prohibits someone circumventing technological barriers, such as a password requirement, to obtain information the person is not otherwise authorized to obtain. It does not apply to someone who merely ignores verbal or written barriers, such as instructions from an employer or requirements in a website’s terms of service. Here Van Buren violated police department policy, but he did not breach any technological barriers to obtain the information. Accordingly, the CFAA should not apply.

US Dept of Justice
U.S. Department of Justice

The Government’s  Response

The government responded that Van Buren’s argument ignores the plain text of the statute, and that the text is enough to decide this case. The statute prohibits exceeding authorized access and thereby obtaining information “that the accesser is not entitled so to obtain.” The key, the government argued, is the word  “so.” If Van Buren is right, that “so” is unnecessary. Congress would have just written “that the accesser is not entitled to obtain,” and Van Buren would be in the clear. But the word “so” in the phrase “so to obtain” means that the manner or circumstances of obtaining the information matters: “so” means that the defendant was not entitled to obtain the information under the circumstances in which he did, even if he could have properly obtained it under other circumstances. The statute therefore governs insiders who have some limited authority to access the relevant computer information but exceed those limits.

As for Van Buren’s hypotheticals about everyday computer users suddenly becoming criminals, the government argued those concerns are wildly exaggerated. Such cases are not being prosecuted, and Van Buren has not identified any such cases in the past that led to a sustained conviction. Potential cases involving people using Facebook at work are just a fantasy. They would never be brought in the real world.

The government also suggested that the hypothetical cases posed by Van Buren might not violate the statute because of other statutory terms. For example, the government argued that the term “authorization” means a user has been granted specific, affirmative, individualized permission to use the system. It might not apply to websites such as Facebook that simply take all comers who are willing to open an account.

The  Oral Argument – Reviewing the Parade of Horribles

During the oral arguments on November 30, several of the Justices appeared skeptical of the government’s arguments and concerned about the potential breadth of the statute.

The Court spent a good deal of time discussing Van Buren’s “parade of horribles,” the hypotheticals about all those who might be ensnared by the government’s interpretation. Justice Thomas wondered whether the parade was real, asking whether there were any real-world examples of the types of cases Van Buren was warning against. Jeffrey Fisher, counsel for Van Buren, admitted there were no recent examples. But he pointed out that the Court has repeatedly held it can’t approve a sweeping interpretation of a criminal statute based on the government’s promise that it will enforce it benevolently.

Chief Justice Roberts and others raised the idea of a different parade of horribles: bad actors who could NOT be prosecuted if Van Buren’s interpretation is adopted.  What about a bank employee, for example, who has legitimate access to computer files containing customer social security numbers but then accesses those files to steal the numbers and sell them? Fisher responded that other criminal laws would cover most such misconduct. Justices Gorsuch and Sotomayor appeared to agree that, given the number of federal and state criminal laws available, any such misconduct not covered by the CFAA could likely still be prosecuted.

Justice Sotomayor and others pressed the Assistant Solicitor General Eric Feigin on his suggestion that other terms, such as the definition of “authorization,” could control the sweep of the CFAA. She said the government was relying on narrower definitions that did not appear in the statute itself. Fisher also had noted in his briefs that there was no precedent for those narrower interpretations and that the government was merely raising them as hypotheticals, not committing to follow them.

Justice Kagan pressed both attorneys on the role of the word “so.”  She noted it requires an antecedent and asked each side what they thought “so” referred back to. Fisher replied that “so to obtain” merely refers to using a computer to obtain the information. That means it would not be a defense for an employee who hacked into a portion of the office computer to argue that he could have gotten the same information by some other means anyway. Even if that were true, he was not entitled “so” to obtain it – in other words, by hacking the computer.

Feigin argued that “so” referred back to the circumstances under which the defendant was obtaining the information. Van Buren was not authorized “so to obtain” the license information because the way he obtained it violated the workplace restrictions covering his use of the database.

Justice  Neil Gorsuch
Justice Neil Gorsuch

A Pattern of Government Overreach

I think the Court is likely to rule in Van Buren’s favor and reject the government’s sweeping interpretation of the CFAA. The battles over the significance of the word “so” are fascinating (at least to legal nerds), but in the end I don’t think they yield a clear winner. In light of that, the Court is likely to adopt the reading that avoids vastly increasing the scope of federal criminal law.

During his questioning of Feigin, Justice Gorsuch raised what I think is a key point. He noted there has been a string of cases in recent years where prosecutors have sought to expand the scope of federal criminal law in pretty sweeping ways. In each case, the Court has rejected the government’s position. I wrote about that trend in this post: White Collar Crime, Prosecutorial Discretion, and the Supreme Court. It stems both from the Court’s approach to federal criminal law in general and from a characteristic of white collar statutes like the CFAA in particular.

In general, the Court is reluctant to read federal criminal laws expansively, at least absent a clear sign of Congressional intent. In McNally v. United States in 1987, where the Court first rejected the theory of honest services fraud, part of its rationale was a concern that the government’s interpretation would dramatically increase the scope of federal criminal law. Just last year in Kelly v. United States, the Court reaffirmed that  principle when it unanimously rejected the government’s attempt to use federal fraud statutes to prosecute the defendants in the Bridgegate scandal. The Court noted that the defendants’ behavior was deplorable, but that not every instance of political misconduct amounts to a federal fraud.

White collar statutes in particular often raise concerns about their potential scope. They are written broadly to avoid loopholes that may be exploited by clever criminals. They deal not with clear crimes like assault or robbery but with fuzzier concepts such as fraud and corruption whose parameters are less well-defined. As a result, they often sweep within their terms conduct that most would agree does not merit  a federal prosecution.

For example, if I call in sick and lie to my employer so I can go to the ball game, that fits all the legal requirements for federal wire fraud. Fortunately, we don’t see cases of such truant employees clogging the federal courts. That’s because of prosecutorial discretion: prosecutors exercising good judgment about which cases are actually worth bringing and which should not be pursued even if they technically violate the statute.

But that discretion must be exercised wisely. In cases raising concerns about the scope of federal criminal statutes, the government’s response often has been, essentially: “Trust us. You should interpret the statute broadly, to allow us flexibility to pursue the appropriate cases. We’d never bring the trivial or outrageous cases that the defendant is claiming would result.”

That’s also what the government is saying in Van Buren: trust us, we’d never prosecute the employee who does holiday shopping at work. But in recent years the Court has been increasingly unwilling to take the government at its word. Instead, it has narrowed the statutes in question to limit prosecutors’ discretion.

Consider, for example, the Court’s 2016 decision in McDonnell v. United States, the corruption prosecution of the former governor of Virginia. McDonnell and his allies presented their own parade of horribles to the Court. They argued that if the government’s sweeping interpretation of “official act” in bribery law were adopted, federal officials would be at the mercy of prosecutors who might charge bribery based on politicians engaging in routine political courtesies. Part of the government’s response was, essentially, “we won’t bring those kinds of cases and never have.” That wasn’t enough for the Court: it unanimously rejected the government’s argument, threw out McDonnell’s conviction, and drastically narrowed the scope of bribery law.

To explain this Supreme Court trend, at least in part, the Justice Department need only look in the mirror. These are often self-inflicted wounds. The “trust us” argument becomes harder when the case that lands before the Court seems to involve a poor exercise of prosecutorial discretion.  This was true, for example, Yates v. United States, where prosecutors used an obstruction of justice statute with a twenty-year penalty to prosecute a captain who threw undersized fish overboard to avoid a civil fine. Or Bond v. United States, where a woman put Drano on the doorknob and mailbox of her romantic rival, causing a minor skin irritation, and was charged with a chemical weapons offense carrying up to life in prison.

When such cases make it to the Supreme Court, it becomes harder for the government to argue the Court should entrust prosecutors with criminal statutes that sweep as broadly as possible. That’s what led Justice Gorsuch to remark during the Van Buren argument that the Solicitor General’s office should not act as a mere “rubber stamp” when questionable cases stretching the boundaries of federal criminal law are brought by U.S. Attorneys.   

In this case Van Buren’s conduct does seem worthy of prosecution. But it also seems clear there were other ways  to punish him, either with other federal statutes (he was also charged with honest services fraud, but that charge may face a McDonnell issue) or with a Georgia state prosecution for bribery or other crimes. There is no need for the Court to stretch the boundaries of the CFAA based a concern that there is otherwise no way to punish someone like Van Buren.

In Van Buren’s case, the Court is likely to continue the trend identified by Justice Gorsuch. It will likely reject an expansive interpretation of the CFAA that turns almost all ordinary Americans into potential criminals. In this case, that’s the right result.

You may now return to your Amazon shopping.

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The Looming Presidential Pardons

Despite the frivolous lawsuits and cries that the election was “stolen,” president Trump will leave office on January 20, 2021. Almost as certain as his departure is that he will grant a flurry of pardons on his way out the door, perhaps including trying to pardon himself. Given the breadth of the pardon power, there is little that can be done about that. Such pardons, even if controversial, will almost certainly be valid – with the possible exception of a self-pardon. But despite his anticipated best efforts, Trump will not be able to completely shield his family and colleagues – or himself – from future legal liability.

Source and Scope of the Pardon Power

Article II, Section 2 of the U.S. Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This clause traces its roots to the power to grant clemency that English kings had for centuries. It’s an important part of our system of checks and balances, allowing the president to correct mistakes or perceived excesses in the justice system or simply to grant forgiveness in appropriate cases. Other than excluding impeachment, the Constitution contains no limits on this presidential power.

Although often referred to by the shorthand “pardon power,” this clause gives the president the ability to grant other forms of clemency as well, such as a commutation or reduction of sentence. For example, in the recent case of Roger Stone, president Trump commuted Stone’s 40-month sentence to keep him out of prison but did not grant him a full pardon. Similarly, president George W. Bush commuted the sentence of White House aide Scooter Libby for his role in the Valerie Plame/CIA leak case but refused to grant Libby a pardon, despite the vigorous objections of Libby’s boss, Dick Cheney.

A pardon represents presidential forgiveness for federal crimes that have been, or may have been, committed. It does not expunge any convictions or seal the recipient’s record, and the recipient still stands convicted. But a pardon removes collateral consequences that may flow from a conviction, such as restrictions on the right to own a firearm or the right to vote. A person whose sentence is commuted but who is not pardoned still bears those other consequences. That’s why someone who has merely had their sentence commuted might seek a full pardon later. Trump pardoned Scooter Libby a decade after Bush had refused to do so, and it seems likely Trump will pardon Stone now that the election is over.

Another difference is that a commutation or reduction of sentence can only come into play if the recipient has actually been convicted and sentenced to some form of punishment. A pardon, on the other hand, may be granted even if a person has not yet been convicted of anything – Gerald Ford’s pardon of Richard Nixon being the most famous example.

A presidential pardon may only cover crimes that have already been committed. A president cannot grant a sort of prospective immunity, authorizing someone to engage in future criminal acts by granting them a blanket pardon.

Most significantly for Trump, the president may only grant pardons for federal crimes. He cannot pardon anyone for state offenses.  If an individual receives a presidential pardon, a state generally is still free to prosecute that individual for the same acts if they also constitute state crimes.

Trump’s Use of the Pardon Power

Trump’s use of the pardon power has been controversial. For the most part, he has bypassed the system set up within the Department of Justice and the Office of the Pardon Attorney for reviewing petitions for clemency. He has been more likely to grant clemency based on appeals by a Fox News host, political ally, or other personal connection. His more controversial pardons include Libby, Arizona Sheriff Joe Arpaio, and conservative activist Dinesh D’Souza. He was roundly condemned, including by many in the military, for pardoning soldiers convicted of committing war crimes in Afghanistan, after their cause was promoted on Fox News. Trump also commuted the sentence of former Illinois Governor Rod Blagojevich, who was serving a fourteen-year sentence after being convicted of multiple counts of corruption.

Former president Bill Clinton
Former president Bill Clinton

Pardons as a President Leaves Office

It’s not unusual for presidents to grant a number pardons as they are getting ready to leave office. Some of those pardons have been controversial. Bill Clinton pardoned fugitive financier Mark Rich on his last day in office. The FBI later investigated that pardon based on allegations it may have been granted in exchange for large donations to Democrats and the Clinton presidential library by Rich and his wife, although no criminal charges were ever filed. Clinton also pardoned his own brother, Roger, for a minor drug offense.

As he was about to leave office, George H.W. Bush pardoned six defendants about to go to trial over the Iran-Contra affair, including former defense secretary Casper Weinberger. Independent counsel Lawrence Walsh was outraged, suggesting the pardons might constitute obstruction of justice and that Bush acted to prevent information about his own involvement in the scandal from being revealed. (In an interesting historical twist, Bush’s move was supported by then-attorney general William Barr.)

So Trump certainly would not be the first president to raise some eyebrows with his parting pardons. But no previous president has ever had the potential to pardon so many of his own family members or close associates, including many who could potentially implicate the president himself in criminal activity. And no president has tried to pardon himself – although Nixon reportedly considered it.

Michael Flynn
Michael Flynn

Who Might Receive a Pardon?

The Mueller Defendants

The first likely recipients of a Trump pardon are those convicted as a result of the Mueller investigation. Trump, of course, has repeatedly attacked that investigation. His attorney general, William Barr, misled the public about Mueller’s report and has worked to undermine prosecutions that resulted, including by seeking to dismiss the Michael Flynn case and intervening in the sentencing of Roger Stone. It would be easy for Trump to justify these pardons by claiming they were all the result of the illegitimate Mueller “witch hunt.” Such pardons would have the added benefit for Trump of rewarding those who could potentially implicate him in wrongdoing and ensuring their continued loyalty.

Flynn seems like a prime candidate for such a pardon. Barr’s DOJ has tried to drop the charges against him after he pleaded guilty to lying to the FBI. The case remains mired in litigation over whether the trial judge must grant the government’s flawed motion to dismiss. By moving to drop the charges, Barr tried to free Flynn while allowing Trump to avoid taking the political heat of granting a pardon prior to the election. Now that the election is over, those political concerns are gone. Given the history, it frankly would be shocking if Trump did not pardon Flynn.

Roger Stone is another likely candidate. Trump commuted his sentence as he was about to report to jail, but now that the election is over look for Trump to bump that commutation up to a full pardon. Stone remained loyal by lying to Congress to protect Trump and refusing to cooperate even when prosecuted for those lies. Expect him to be further rewarded with a full pardon.

The outlook for other Mueller defendants is more cloudy. At times Trump has expressed sympathy for his former campaign manager Paul Manafort, who was convicted of money laundering and related financial crimes based on his work in Ukraine. Manafort pleaded guilty in a second case and agreed to cooperate with Mueller, but ended up lying to Mueller’s investigators. Trump and Manafort were reportedly never that close, but Trump might still pardon him just to take a shot at Mueller. The same is true for deputy campaign manager Rick Gates. Other lesser Russiagate players such as George Papadopoulos might be pardoned as well, again if for no other reason than to try to erase any results of the Mueller probe.

Other Former Insiders

Trump’s former personal attorney Michael Cohen almost certainly does not expect a pardon. Cohen was convicted of fraud and other charges in New York in a case that was spun off from the Mueller probe. His plea notably included a campaign finance charge for the payoff to Stormy Daniels that Cohen says was made at Trump’s direction. He potentially has a great deal of information that could implicate the president. But Cohen has completely turned against Trump, writing a harshly critical book and regularly criticizing him on cable news. He has said he doesn’t want a pardon, and he’s almost certainly going to get his wish.

Other former insiders have legal troubles of their own, but have also fallen out of Trump’s favor. For example, former presidential advisor Steve Bannon is now facing a federal fraud indictment for his involvement in a bogus fundraising scheme related to building Trump’s border wall. Bannon was once the consummate insider, but has also been critical of Trump since leaving the White House. Don’t expect him to receive any presidential clemency.

Donald Trump Jr.
Donald Trump Jr.

Trump Family Members

Up to this point we’ve been considering those who have already been charged or convicted. But Trump could also pardon individuals who have not yet been charged with anything, including members of his own family. For example, he could issue pardons for his son Don Jr. and son-in-law Jared Kushner for any crimes committed in connection with the 2016 presidential campaign and possible cooperation with Russia in its efforts to influence that campaign, or for any cover-up crimes related to the later investigations by Mueller and by Congress.

It’s not clear Don Jr. or Kushner want or need any such pardons; Mueller did not find that they had any criminal liability. But Mueller was not able to obtain all the information that he sought, and other facts could come to light under a new administration. Trump might be interested in issuing a sort of prophylactic pardon for any criminal acts related to Russia, the campaign, or the subsequent investigations, just as a precaution. On the other hand, he might conclude that issuing such pardons could make it sound like there was something to the “Russia hoax” after all.

Those who have not been charged or convicted could be reluctant to accept a pardon because they might think it would mean admitting they had done something  wrong. But as I discussed in this earlier post, the view that accepting a pardon means you are admitting  guilt is now generally discredited. For example, if a president were to pardon someone convicted of murder and then exonerated by DNA evidence, we clearly wouldn’t say that defendant is admitting he is guilty if he accepts the pardon. Trump family members and associates could easily claim they have done nothing wrong but will accept the pardons just to prevent a future, vindictive Democratic administration from pursuing baseless allegations.

Other Possible Pardons

There are other investigations that Trump could potentially try to head off by granting pardons. Not all of them are public, so it’s hard to know the full scope of what he could do here. For example, an investigation into financial misconduct related to the 2016 Trump inauguration may still be pending in the U.S. Attorney’s Office for the Southern District of New York. There could be other investigations pending within that office related to potential financial crimes by the Trump Organization. Presidential attorney Rudy Giuliani is reportedly still under investigation for some of his overseas business activities. To the extent there are such investigation still ongoing, Trump could short-circuit them by simply pardoning everyone who is under scrutiny.

Could Granting the Pardons Be a Crime?

It’s legally possible for granting a pardon to be a criminal act;  for example, if a president granted a pardon in exchange for a bribe. During the Mueller investigation there were allegations that Trump attorneys had dangled the possibility of pardons in front of witnesses to encourage them not to cooperate. As I wrote here, had that been established I think it could constitute bribery. Similarly, granting a pardon to head off an investigation into the president himself could potentially constitute obstruction of justice. But at this late stage, proving the requisite corrupt intent to make any of Trump’s parting pardons a potential crime would be extremely difficult.

Can Trump Pardon Himself?

The great unanswered question is whether Trump can pardon himself. Trump has claimed he has that right, but most legal experts disagree. The Office of Legal Counsel in Nixon’s Department of Justice opined that a president could not self-pardon. But no court has ever ruled on the question, and that OLC opinion is not binding on Trump. He could be the first president to test this legal proposition.  

For example, Trump could pardon himself for any obstruction of justice he may have committed during the Mueller investigation – probably his most clear-cut criminal exposure. If a Biden Department of Justice then tried to indict him for that obstruction – a big “if” — Trump would raise the pardon as a defense and move to dismiss. That would seem like a legal question destined to be decided by the Supreme Court.

Again, Trump may be reluctant to grant himself a pardon if he thinks it makes him look guilty. But he could easily rationalize it by saying he has done nothing wrong but needs to protect him from future unjustified “witch hunts.”

Trump and Pence
Mike Pence with President Trump

The Possible Pence Gambit

Trump could also engage in some more complicated gymnastics to seek to ensure that he receives a valid pardon. For example, he could resign the presidency prior to Biden’s inauguration. Mike Pence would then become president, with the power to pardon Trump.

Imagine this scenario: Over the next few weeks, Trump pardons his family members, associates, and anyone else who needs it, perhaps including Pence himself. Trump then resigns on the morning  of January 20, a few hours before Biden is inaugurated. Pence is sworn in and becomes president for the morning, and issues the pardon to Trump. It sounds crazy, but a lot of crazy things have happened over the past four years.

Trump could also act under the 25th Amendment to declare himself temporarily unable to perform the duties of president. That would make Pence the acting president until Trump declares himself fit again, and Pence could grant the pardon.  Of course, if Trump’s declaration was found to be a fabrication, that could call any such pardon into question.

It’s unclear whether Trump is interested in pardoning himself, or whether he would be willing to take the more dramatic step of resigning early to allow Pence to pardon him. It’s also unclear whether Pence, who has to think about his own political future, would agree to go along.

State Charges and Civil Cases

The most ominous aspect of all this for Trump is his inability to grant pardons for state charges. New York District Attorney Cyrus Vance has been conducting a grand jury investigation of Trump and the Trump Organization for the past couple of years and has been fighting to obtain Trump’s tax returns. The Supreme Court ruled in his favor last spring; the matter is now back before the Court and he is likely to prevail once again.  Vance has indicated that possible charges include not just the Stormy Daniels hush money payments but also bank fraud, insurance fraud, or tax fraud.

These potential state charges pose a real risk to Trump, and as president he can’t really do anything about them. If he does end up facing any criminal charges after he leaves office, New York state is the most likely source.

Trump also can’t pardon his way out of the many civil cases against him that may be pending or may be brought in the future, such as the defamation case by E. Jean Carroll, a woman who claims Trump sexually assaulted her. These can’t result in criminal convictions, of course, but could require Trump to pay damages or face other civil sanctions.

It will be very interesting to see what Trump does in the next couple of months. The expected flurry of pardons may turn out to be maddening and even shocking – another entry in the catalogue of outrages from this administration. But despite the awesome power of the presidency, Trump will be unable to shield himself and those around him from all potential legal consequences after he leaves office.

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