Pardons and Plea Bargains: Q & A

President Trump’s former campaign manager Paul Manafort and former personal attorney Michael Cohen have pleaded guilty and are cooperating in the Mueller investigation. This has led to renewed debate over whether Trump might pardon them, what effect that would have, and whether there are ways for Mueller to circumvent a pardon.

Pardons aren't in the legal news all that often, but the special counsel investigation has raised a host of issues -- many of them untested -- concerning pardons and plea bargains and their effect on criminal investigations.

Update: After writing this post, I made a video for the Washington Post on this topic called Pardons 101: https://www.youtube.com/watch?v=i8Yl9UETxH0

 Where Does the Pardon Power Come From?

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.” Other than excluding impeachment, the Constitution contains no express limitations on the pardon power. (Some argue the president’s constitutional duty to “take care that the laws be faithfully executed” limits the ability to grant pardons for improper purposes, but that theory is untested.)

The Office of the Pardon Attorney in the Department of Justice is tasked with reviewing and investigating all applications for pardons and clemency and making recommendations to the president. It operates under a number of guidelines, including that a person should not file a petition requesting a pardon until at least five years after their conviction or release from prison.

In the Trump administration, however, this practice has not been followed. Trump has issued several controversial pardons, including those for Arizona Sheriff Joe Arpaio, former Bush White House official Scooter Libby, and conservative activist Dinesh D’Souza, without following the Pardon Attorney guidelines. Although this is irregular, there is little doubt the president has the power to do it. The DOJ regulations themselves state they are merely advisory and do not restrict the power of the president under Article II.

Paul Manafort was thought to be holding out for a pardon

What Does a Pardon Cover?

The president may only pardon witnesses for federal crimes. Exactly what crimes are covered depends on the language of the pardon itself. The crimes must be already completed; you can’t receive a prospective pardon that frees you to go out and commit future crimes with impunity. The president also can’t pardon someone for state crimes. Manafort and Cohen, even if they received a presidential pardon, might face prosecution in New York for state financial crimes. The issue then becomes whether a state prosecution would be barred by the double jeopardy clause.

The first thing to note is that a double jeopardy claim requires that you have already been placed in jeopardy once for same misconduct. Jeopardy usually attaches only when a jury is sworn in your criminal trial or a judge accepts your guilty plea. A pardon of someone who has not yet been prosecuted – for example, if Trump were to preemptively pardon members of his own family – would not prohibit a state prosecution based on double jeopardy. Those individuals may have been pardoned, but they were never placed in jeopardy on the federal crimes.

Manafort and Cohen have been placed in jeopardy as to at least some federal crimes. But those prosecuted for federal crimes generally are still subject to state prosecution for the same misconduct, assuming there is a corresponding state offense. The “dual sovereignty doctrine” holds that states and the federal government are free to prosecute the crimes over which they have jurisdiction, and that this does not violate double jeopardy. However, some states, including New York, have enacted more expansive double jeopardy protections that may prohibit a state prosecution for misconduct that has already been federally prosecuted.

Professor Jed Shugerman has argued that Mueller may be deliberately avoiding certain federal charges in order to leave the states free to prosecute the state version of those crimes in the event of a pardon. A case on the Supreme Court’s docket this year, Gamble v. United States, challenges the dual sovereignty doctrine and argues it should be overturned. If that happens, it could have implications for the ability of state prosecutors to pursue those who have been placed in jeopardy for federal crimes based on the same misconduct. (Update: in Gamble the Supreme Court upheld the dual sovereignty doctrine.)

Can Granting a Pardon Be a Crime?

If the president granted a pardon for corrupt reasons, the pardon itself might still be valid. But the president and others involved could be investigated for criminal misconduct in connection with granting the pardon. This would not be unprecedented; for example, President Clinton was criminally investigated after he left office for his pardon of financier Mark Rich, amid suspicions that the pardon was in exchange for hefty campaign contributions and donations to the Clinton library.

One criminal theory is that if Trump pardons witnesses against him he could be charged with obstruction of justice. Some academics, most notably Harvard Law School’s Alan Dershowitz, argue that official executive actions such as granting a pardon – or firing the FBI director – could never, standing alone, be charged as obstruction of justice. Dershowitz claims that the motivation behind such “constitutionally authorized acts” may never be questioned in a criminal prosecution. I think that’s wrong, for reasons I’ve discussed here and here. But even Dershowitz agrees that if the president commits a separate crime in connection with granting a pardon he would be subject to punishment for that offense.

For example, if the president took a bribe to grant a pardon, he could be investigated for bribery. As I explained here, Trump pardoning a witness against him could constitute the crime of bribing a witness. Similarly, a witness who agreed to keep quiet in exchange for a pardon could be charged with bribing the president (and the president with accepting that bribe). Pardoning a witness against him also could be considered an overt act by Trump as part of a broader conspiracy to obstruct justice, even if not charged as a separate crime.

Does Accepting a Pardon Mean You Acknowledge Guilt?

You frequently hear that if someone accepts a pardon, it means they admit they are guilty. This stems from language in a 1915 Supreme Court case, Burdick v. United States, where the Court said that accepting a pardon involves a “confession of guilt.” Recently on MSNBC, Ari Melber thought he had a “gotcha” moment with Arizona sheriff Joe Arpaio when he told Arpaio that accepting president Trump’s pardon for contempt of court meant he was admitting he was guilty.

But the reality is more complicated. The language in Burdick was dicta – not necessary to the holding – and is too sweeping. Pardons are granted for different reasons. For example, suppose DNA testing concludes a defendant was wrongly convicted and the president pardons him. Clearly by accepting that pardon the exonerated defendant is not admitting that he was in fact guilty. Writing last year in the Washington Post, Eugene Volokh reviewed Burdick and other old Supreme Court authorities and concluded: “I doubt that any judge today would genuinely view acceptance of pardons as always being an admission of guilt.”

Michael Cohen says he would refuse a pardon from Trump

Can You Refuse a Pardon?

Michael Cohen’s lawyer has been quoted saying Cohen would never accept a pardon from president Trump. Does he have that option? That same 1915 Supreme Court case, Burdick, also said a pardon is not effective unless it is accepted. That was based on an even older Supreme Court decision from 1833, United States v. Wilson. In Wilson the Court held that if a defendant chose not to put his pardon before the court, the court had no power to act on it.

In Burdick, the defendant was refusing to testify based on his right not to incriminate himself. The government obtained a pardon and then tried to compel Burdick to testify by arguing he no longer had any fear of prosecution and so could not take the Fifth. The Court disagreed, holding that Burdick did not have to accept the pardon.

But in a 1927 case, Biddle v. Perovich, the Court cast doubt on its holding in Burdick. Perovich had been convicted of murder and sentenced to death, but President Taft commuted his sentence to life in prison. A decade later, as part of a challenge to his conditions of imprisonment, Perovich argued his current detention was unlawful because he had never accepted the president's action. The Court held that the ability to commute a sentence is part of the president's executive power and does not depend on the defendant’s consent. The Court also noted the practical difficulties posed by Perovich's claim: “Supposing that Perovich did not accept [the commutation], he could not have got himself hanged against the executive order.” The Court concluded that the reasoning of Burdick “is not to be extended to the present case.”

These cases are old and send mixed signals on whether a defendant can really refuse a pardon. But in practical terms, it’s hard to see how doing so would have much more than a symbolic effect. If a defendant was in jail and the president pardoned him, he could say he refuses to accept. But he couldn’t force the government to continue to hold him, just as Perovich could not force his jailers to hang him. Presumably the Federal Bureau of Prisons, part of the Executive Branch, would release him. If pardoned while being investigated or prosecuted, a defendant might say he refuses to accept it. But the federal prosecutors and the FBI, who work for the president, presumably would drop the case.

In Burdick prosecutors were trying to use a pardon like a grant of immunity, to compel a witness to testify. I don’t know what the immunity laws were like in 1915. But under modern immunity statutes, if a defendant said he refused to accept a pardon because he wanted to continue to assert the Fifth, the government would just immunize him. You can’t defy court-ordered immunity, and it doesn't require you to accept it. You have to testify, on pain of contempt.

A defendant might claim he will not accept a pardon because he does not want to admit he is guilty. But as noted above, it’s unlikely that accepting a pardon today would always be considered an admission of guilt (sorry, Ari), so a defendant could choose to accept a pardon while still maintaining his innocence.

In sum, a witness like Cohen might claim he will not accept a pardon from a tarnished president, but it seems to me this is largely symbolic. Refusing the pardon is not going to have any practical effect - the president has the power to pardon Cohen, whether Cohen likes it or not.

Do You Lose Your Fifth Amendment Right if Pardoned?

If you are pardoned for particular acts, you no longer have a well-founded fear of prosecution based on those acts. That means you could not assert a valid Fifth Amendment claim and a court could compel you to testify, at least assuming the pardon was broad enough to cover the activities you were testifying about. (As noted above, you could try saying you refuse to accept the pardon, but then the government could just immunize you and make you testify anyway.)

In connection with the Mueller investigation, you often hear that president Trump might hesitate to pardon witnesses because then they would lose their right to claim the Fifth if asked to testify against him. That’s true, but it’s never struck me as a very powerful point. If a close ally of Trump’s receives a pardon, you would expect that in the grand jury he would either lie or claim a lack of recollection in order to protect Trump, his benefactor. If that happened, and in the relatively unlikely event the witness actually ended up charged with perjury or obstruction of justice, the president could just pardon him again and keep pardoning him (as long as Trump remained in office, anyway).

I think those salivating at the prospect of pardoned witnesses being put in the grand jury and breaking the case wide open would end up disappointed. It’s possible that if a witness like Manafort were pardoned by Trump he could still take the Fifth based on his fear of state prosecution. That fear would have to be well-founded, and some of Manfort’s federal crimes, such as failing to register as a foreign agent, don’t really have a state criminal counterpart. And federal prosecutors could always ask a state to immunize a witness as well, if that became necessary.

Could You Make Refusing a Pardon Part of a Plea Deal?

In the wake of the Michael Cohen plea there was some debate over whether Mueller could make a promise to refuse a pardon part of a plea agreement. I guess he could – a plea agreement is basically a contract and could include such a condition – but I think it would be largely meaningless.

Suppose as part of his plea agreement Cohen had promised to reject any pardon from president Trump. After he pleads guilty, Trump goes ahead and pardons him. Cohen then says, “Okay, never mind, I do accept the pardon.” The remedy for this breach of the plea agreement normally would be to say the deal is off and the government is free to prosecute Cohen for all his crimes. But now the government can’t prosecute Cohen for those crimes, because he’s been pardoned.

So yes, you could include a promise to reject a pardon as part of a plea deal, but I think it’s unenforceable – there’s no remedy for the government if the defendant reneges on the promise. And as noted above, even if he tried to keep the promise and reject a pardon, practically speaking it's not clear how prosecutors and the FBI could continue to pursue the case against him.

Donald Trump's Tweet - June 4, 2018

Can the President Pardon Himself?

No one knows for certain, and it’s obviously never been tested. Although the president claims that “numerous legal scholars” believe he has the absolute right to pardon himself, most experts seem to disagree.

In 1974, during Watergate, president Nixon was advised by the Department of Justice that a president may not pardon himself. The argument against it stems from the common law – and common sense – notion that no one can be the judge and jury in his own case. It would put the president above the law and give him free reign to commit criminal acts and then pardon himself – although the prospect of state prosecution presumably would still act as a deterrent, at least in some cases. (If, in his famous hypothetical, Trump shot someone in the middle of Fifth Avenue, he could try to pardon himself for any applicable federal crimes but would still be subject to a New York state prosecution for homicide.)

If Trump were to pardon himself, that could lead to impeachment and removal from office. Once out of office, an impeached official is subject to prosecution. If Trump were then prosecuted, he could raise his self-pardon as a defense and a court would have to rule on the pardon’s validity. Who knows how that would come out? As with so much in the Trump presidency, we are in uncharted waters.