On Friday of last week, we received a press released regarding a report co-authored by the American for Constitution Society (ACS) and by Citizens for Responsibility and Ethics (CORE). The focus of that report dealt with the pardon issue.
On Monday, Stephen Sabludowsky, Publisher of Bayoubuzz.com interviewed the President of ACS about the reports findings. Below is part one of the interview. Watch the video below to see the entire recorded interview. Also below is the PRESS RELEASE associated with that report.
What prompted y'all to come up with this particular report?
Well you know one of the the goals of this project that we have with CREW is to explain to the public what's going on and what are the legal issues in play behind the Moller investigation. You know it seemed to us that you know that special counsel and prosecutors generally can't go out and hold press conferences and and talk about their work they really need to just figure out whether a law has been broken and whether charges needs to be filed so we thought it would be a good idea because there's such important questions here we do need to know-- did a foreign power interfere in our elections, were laws broken and so we wanted to explain a little bit about what were some of the questions that Mr. Mueller is trying to answer. And so in this context it's you know, the president obviously has a very broad hardened power--how would it work to affect the investigation?
Could he actually cut it off, could he protect himself by using the pardon power? So what we've done is explained for small what the partner power is and then what it does and doesn't cover and how by using the pardon power itself it might actually expose the president to even further a legal liability if it was used in such a way as to obstruct justice. So that's what the report has done and you know I'm happy to elaborate on each of those pieces but again the main the main focus was to really try and explain to to the public you know what's going on and what is he looking at.
So here's some sort of one basic element, the president's pardon power is expensive as it is, cannot, he cannot pardon something that's a crime at the state level. The president's power is only a commensurate with federal and criminal liability and so the states could continue if they were legal violations under state law could continue to prosecute. There is something called double jeopardy in our law which means it can't be prosecuted twice for the same crime. But double jeopardy doesn't mean that the state even if the state has a similar type of criminal law doesn't mean that once if if if the president were to pardon somebody for a violation under federal law it doesn't prohibit even for the same type of claim, most states will believe that that claim can be prosecuted under state law even if it's very similar to the federal law.
So you know so there's two levels of this--one is you know you can't pardon for state crime and double jeopardy doesn't prohibit state prosecution even if the pardon was for a federal crime of a very similar nature.
ACS PRESS RELEASE
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.