Pardons Might Put Trump Cronies At Increased Legal Risk

While the claims of Donald Trump working along with Vladimir Putin to alter the 2016 election results is looking increasingly unlikely after over a year of investigations, people close to Donald Trump are at risk of prosecution related to both financial crimes including money laundering and obstruction of justice.  This could include Donald Trump himself, and CNN reported earlier this week that Mueller is interested in Jared Kushner.

Republicans, who have been utilizing multiple strategies to attempt to undermine the investigations, are recommending that Trump use pardons to presumably eliminate the risk of individuals providing testimony as part of deals to protect themselves. As I noted last summer, Robert Mueller has already been working to eliminate this risk by working with state prosecutors as presidential pardons only apply to federal charges. Ryan Goodman at Just Security argues that accepting pardons would also increase the risk of conviction on state charges:

In a landmark decision by the U.S. Supreme Court in 1915, Burdick v. United States, the Justices stated that individuals have a right to refuse a pardon because “acceptance” of one carries with it a “confession of guilt.” Over the years, many federal courts have relied on Burdick for this proposition, the most recent including the Arizona court in upholding President Trump’s pardon of former sheriff Joe Arpaio.

While I have objected to Gerald Ford’s pardon of Richard Nixon, Goodman also helps with this:

It’s here that Watergate has yet another lesson for our times. Ken Gormley, the author of “Archibald Cox: Conscience of a Nation,” explained in a lecture in 2014 for the Gerald Ford Presidential Foundation, that Ford’s personal emissary in negotiating the pardon with Richard Nixon shared with Ford and his closest advisers the “extremely important” case of Burdick due to its implications for Nixon’s acceptance of guilt. That emissary was Benton Becker, and he explained, “President Ford had made it very clear. He said ‘don’t just deliver this … I want you to sit down face-to-face with Richard Nixon and I want you to walk through Burdick, walk through the facts, walk through the history, and walk through the holding.’” When Becker flew to California to offer Nixon the pardon, he brought copies of the Burdick opinion with him. Testifying before the House Judiciary Committee a few weeks later about Nixon’s taking the pardon, President Ford stated, “The acceptance of a pardon, according to the legal authorities—and we have checked them out very carefully—does indicate that by the acceptance, the person who has accepted it does, in effect, admit guilt.” He made clear this applied to Nixon.

While I still wish that Nixon had faced prosecution, I am happy to see that the pardon was considered an admission of guilt. The possibility of state prosecutions increase the chances that those close to Donald Trump will not get off as easily as Richard Nixon.

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