It certainly seems that President Trump believes that a number of his folks have been subjected to prosecutorial abuse. That raises the question of pardons. Like it or not, the President has an unlimited power to grant pardons for FEDERAL crimes – not, however, convictions in state or local courts.
Traditionally, if the federal prosecutors are pursuing a case, they are not pursued by the lower courts – but that is not a requirement. It is actually a loophole in the prohibition against “double jeopardy” – being tried for the same crime twice. State and local courts can press charges even if a person is acquitted by a federal court under what is called a “separate sovereign” doctrine.
There are two questions to be answered in terms of Trump issuing pardons of folks like Paul Manafort, General Michael Flynn and even his former attorney Michael Cohen. Can he pardon them? And the answer is “yes”. Should he pardon them? And that is where the issue gets more complicated.
It is obvious that Trump appreciates the power to pardon. He did so in the case of Alice Marie Johnson, who was serving a long term for cocaine distribution. Johnson’s most visible advocate was Kim Kardashian. He also pardoned Chief Petty Officer Edward Gallagher, who was convicted by military tribunal of the technical war crime of being photographed with a dead enemy soldier.
These two pardons frame the problem of pardons. The first was widely applauded as a humanitarian action. The second was highly criticized by the left and some military officials for meddling in military affairs – even though Trump is the Commander-on-Chief of the United States armed forces.
Should Trump pardon former aides and allies, it will undoubtedly put Democrats, the liberal media and left-wingers in a new rage – which is nothing new. On his way out of office, President Clinton issued very controversial pardons to 450 people (compared to 75 for George Bush) – including his pal Marc Rich, who was convicted for tax evasion and making oil deals with Iran during the hostage crisis; Sixteen members of a Puerto Rican terrorist group that set more than 120 bombs, mostly in New York City and Chicago; Edgar and Vonna Jo Gregory, friend of Hillary Clinton’s brother, who were convicted of bank fraud; Roger Clinton, the President’s brother convicted on drug charges; and Harvey Weinig, for facilitating an extortion-kidnapping scheme and helping launder at least $19 million for the Cali cocaine cartel. The pardons were so controversial that the entire affair was referred to as “Pardongate” at the time.
Despite the obsession of the #NeverTrump Resistance Movement, each potential pardon from Trump should be objectively reviewed on the merits of the unique cases.
The easiest case to justify would be that of General Flynn. Under prosecutorial pressure, he agreed to plead guilty to having lied to prosecutors – a crime that many believe is a bridge too far when there is not even an underlying crime to be prosecuted. Flynn is currently exploring the possibility of changing his plea based on the argument that he was entrapped by prosecutors and that he had not lied in any material way. Except for the unmovable anti-Trumpers, a Flynn pardon – if handled right — could elicit positive public reaction.
Manafort is a whole different story. Because of the political ballyhooing on the left, most people may not realize that Manafort was not convicted of any crimes associated with Trump or the campaign. He was convicted on a tax issue dealing with his private business and failure to register as representing a foreign nation.
Still, Manafort is 70 years of age and not in the best of health. He certainly was the subject of an extremely aggressive prosecutorial investigation by the team of Special Counsel Robert Mueller – and only because of his association with the President.
Michael Cohen is was also convicted of crimes relating to his private business and tax filings. In order to get a plea bargain break from prosecutors, Cohen also had to confess to a crime he may not have committed. He had to state that he was guilty of violating federal elections laws with those payments to porn performer Stormy Daniels and Playboy centerfold Karen McDougal.
Had Cohen plead not guilty to the election charge he would have lost his plea bargain and been sent up the river for a lot longer than the 3-year term he received. His private crimes – those not embroiling Trump – were the reason he faced big time in the slammer.
Of course, Cohen has one BIG disadvantage. He not only flipped on Trump, he tried to bring him down with testimony that was venomous more than it was evidential.
Pardons from Trump could come by the end of the year. If he is defeated, he can issue them before he leaves office. It is almost certain that he would since virtually all Presidents tend to issue pardons on their way out the door. And if he is re-elected, he could issue pardons between Election Day and his Inauguration. They would have little political impact since he would not have to stand for re-election again and any controversy would be old news by the time he left office.
It is not easy to predict what Trump will do, but if you are inclined to make a bet, you should place it in favor of pardons.
So, there ‘tis.