Trump's pardons may be poorly worded enough to leave some people on the hook

Jacob Shamsian
·5 min read
Trump turkey pardon 2019
President Donald Trump gives a presidential 'pardon' to the National Thanksgiving Turkey Butter in the Rose Garden of the White House November 26, 2019 in Washington, DC. While Butter may be safe, Paul Manafort still faces risks, experts say. Chip Somodevilla/Getty Images
  • President Trump's pardons leave some of their subjects open to additional prosecution, experts say.

  • His former campaign chair Paul Manafort could still be prosecuted for specific crimes he wasn't pardoned for.

  • Even Michael Flynn, who received a wider-ranging pardon, could still have it tested by courts.

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On his way out of office, President Donald Trump issued more than 100 pardons, mostly to his personal friends and political allies.

A number of those pardons were for people convicted of federal crimes linked to the Mueller investigation - including his former National Security Adviser Michael Flynn, campaign chairman Paul Manafort, and advisors Roger Stone and George Papadopoulos.

Trump was sure to malign Mueller's investigation in his pardon notices. The press release for Manafort's pardon, for example, said he was "prosecuted in the course of Special Counsel Mueller's investigation, which was premised on the Russian collusion hoax."

Though the president's pardon powers are broad, a number of prosecutors and experts on clemency laws don't believe those people are off the hook just yet.

Trump pardoned Manafort for his specific convictions. It's much more narrowly tailored than the pardon Trump gave to Flynn, for "any and all offenses arising out of the facts and circumstances" brought by Robert Mueller's office.

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It's also narrower than the pardon President Gerald Ford gave to former President Richard Nixon, which covered a broad timeframe.

"It says 'for his conviction' and that's it. It's just for the crimes for which he was convicted," Kimberly Wehle, a University of Baltimore law professor, told Insider. "That is a different wording than Richard Nixon received under his pardon, which is for 'all conceivable crimes.'"

Manafort
Paul Manafort, President Trump's former campaign manager, in 2019. Trump pardoned him in 2020. Seth Wenig/AP

Wehle, who worked under Independent Counsel Kenneth Starr in the Justice Department, said presidents must specify the specific crimes being pardoned.

Beyond that, prosecutors can always try to bring different charges using the same set of underlying facts, she said.

The same point was brought up by Andrew Weissman, Mueller's second-in-command, in an article for the blog Just Security on Wednesday. Weissman argued that while Flynn's pardon left "no room for now holding Flynn to account for his past felonious conduct," the pardon for Manafort was full of holes.

"Specifically, the pardon is solely for the crimes of conviction ... That leaves numerous crimes as to which Manafort can still be prosecuted, as in Virginia there were 10 hung counts," Weissman wrote. "In Washington, the situation is even more wide open. In that district, Manafort pleaded to a superseding information containing two conspiracy charges, while the entire underlying indictment - containing numerous crimes from money laundering, to witness tampering, to violation of the Foreign Agents Registration Act - now remains open to prosecution as there was no conviction for those charges."

Read more: Could Trump mass-pardon his supporters who rioted at the Capitol? Constitutional-law experts weigh in.

There are other obstacles, too.

Prosecutors need to make sure they don't run afoul of the statute of limitations - though Manafort waived some of those protections, Weissman said. And a judge might decide that prosecutors are simply repackaging the same actions for which a person was pardoned into different crimes, which may run afoul of the Constitution's double jeopardy protection.

But Wehle said there's plenty of case law for judges to review. While federal prosecutors have rarely tried to go around presidential pardons, state-level prosecutors have often brought new criminal charges following governors' state-level pardons and succeeded.

"Say there was a robbery and a murder, and you're indicted and prosecuted for the robbery, and then later they come back and indict you and prosecute you for the murder," Wehle said. "I don't think there's this a problem with fairness in there."

Experts think Flynn may not be safe either

Some pardon attorneys even believe that federal prosecutors may still be able to bring new charges against Flynn.

Margaret Love, a clemency attorney and US Department of Justice pardon attorney between 1990 and 1997, believes the pardon for Flynn may have asserted powers that Trump didn't actually have.

Love told Insider that while Trump could grant Flynn clemency for the crimes he was prosecuted for, a judge might decide that the "any and all offenses arising out of the facts and circumstances" part of it might not hold water.

"The president can assert whatever power he has, but at issue is whether he has the power," Love said, adding: "I believe there is a strong argument that the constitutional pardon power requires a degree of specificity as to what crime it is pardoning."

sidney powell michael flynn
Michael Flynn, President Donald Trump's former national security adviser, leaves the federal court with his lawyer Sidney Powell, in September 2019. AP Photo/Manuel Balce Ceneta

Even the broad pardon Ford gave to Nixon, Love said, has never been tested. The Justice Department never brought the issue before a court to decide whether the sweeping nature of the pardon was valid.

The question of whether Flynn's pardon would prevent future prosecutions now depends on the appetite of Justice Department prosecutors, and it's an open question whether Biden's selection for attorney general, Merrick Garland, would choose to bring another case against him.

"Whoever is the prosecutor in the Flynn case will undoubtedly be looking closely at [the pardon] wording, just like Andrew Weissman was looking closely at [the] Manafort pardon," Love said. "Then they will decide what to do."

Attorneys for Manafort and Flynn didn't immediately respond to Insider's request for comment.

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