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

02:05  24 january  2021
02:05  24 january  2021 Source:   businessinsider.com

Trump's sordid pardons cement his corrupt legacy (Opinion)

  Trump's sordid pardons cement his corrupt legacy (Opinion) John Avlon writes that President Donald Trump is serially abusing his pardon power. While the Founding Fathers enshrined a President's right to offer pardons in the Constitution, the use is limited -- at least in comparison to its modern use.The Founding Fathers would have been disgusted by President Donald Trump's serial abuse of the pardon power. Nearly 90% of his pardons to date have gone to friends or politically connected allies -- including corrupt politicians.

President Donald Trump on Wednesday evening announced 26 new pardons , including for longtime ally Roger Stone, former campaign chairman Paul Manafort and White House senior adviser Jared Kushner' s father, Charles.

Daniel R. Alonso writes that it is legally possible for Donald Trump ' s next wave of pardons to be issued in secret for friends and family before he leaves office. A secret pardon would enable them to keep clemency in their back pockets

Donald Trump wearing a suit and tie: 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 © Provided by Business Insider 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.
  • Visit Business Insider's homepage for more stories.

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

Trump prepares to offer clemency to more than 100 people in his final hours in office

  Trump prepares to offer clemency to more than 100 people in his final hours in office The president has been consumed with the question of whether to issued preemptive pardons to his children, top aides and himself, but it remains unclear whether he will do so. Trump met Sunday with his son-in-law, Jared Kushner, daughter Ivanka Trump and other aides for a significant amount of the day to review a long list of pardon requests and discuss lingering questions about their appeals, according to the multiple people briefed on the meeting. The president was personally engaged with the details of specific cases, one person said.

President Donald Trump is preparing to issue around 100 pardons and commutations on his final full day in office Tuesday, according to three people familiar with the matter, a major batch of clemency actions that includes white collar criminals

And since the election, Trump has been discussing with advisers preemptively pardoning several people close to him, including his children, son-in-law Trump has often bypassed the DOJ' s Office of Pardon Attorney in deciding who gets granted clemency, instead choosing to act on the appeals from

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.

Donald Trump may pardon 100 people in final days; allies warn against pardoning rioters

  Donald Trump may pardon 100 people in final days; allies warn against pardoning rioters The president is not expected to issue pardons for himself or members of his family, advisers said Monday.But Trump is not expected to pardon himself or issue preemptive pardons for members of his family, said advisers who were not authorized to comment publicly and refused to discuss who might be on the list that has been developed for weeks.

President Donald Trump ' s associates are making appeals to him in the hopes of obtaining pardons before he leaves office, a Since the election, Trump has been discussing with advisers preemptively pardoning several people The appeals come on the heels of Trump ' s decision to pardon Flynn.

Donald Trump is expected to issue a wave of pardons , including some related to the Russia investigation, in his final weeks in office. It raised the possibility that the US president may also attempt to pre-emptively pardon himself to avoid any potential future legal entanglements.

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.'"

Paul Manafort et al. posing for the camera: Paul Manafort, President Trump's former campaign manager, in 2019. Trump pardoned him in 2020. Seth Wenig/AP © Seth Wenig/AP 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.

Who Did Trump Pardon on His Last Night As President?

  Who Did Trump Pardon on His Last Night As President? Steve Bannon, Lil Wayne, Elliott Broidy, and Kodak Black are among the most notable figures reported in Trump’s final clemency spree.The eleventh-hour blitz comes in the wake of an already considerable clemency effort. Last month alone, he pardoned or commuted the sentences of more than four dozen people, a spree the White House reportedly intended to continue in batches before he left office — only to forgo that plan in the wake of the stunning attack that Trump incited at the U.S. Capitol on January 6. Instead, in the final hours of his term, Trump wielded his pardon power in one fell swoop.

Manafort was Trump ’ s former campaign chairman and was among the first people to be charged in Mueller’s investigation, which examined possible coordination between the Trump campaign and Russia in the 2016 election campaign.

Donald Trump ' s presidency is set to torment America up to and even beyond his final hours in power with Democrats moving inexorably towards making him the first President to be impeached twice after he incited a mob assault on Congress.

"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 statue 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.

Trump grants clemency to 143 people in late-night pardon blast

  Trump grants clemency to 143 people in late-night pardon blast In his last full day in office, President Trump pardoned former adviser Stephen K. Bannon, GOP donor Elliott Broidy and a raft of well-connected celebrities, politicians and nonviolent drug offenders, but he did not preemptively pardon himself or his family members. Among those who were pardoned or who had their sentences commuted on Trump’s final full day in office were the rapper Lil Wayne and former Detroit Mayor Kwame Kilpatrick, who has been serving a 28-year prison on corruption charges.

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."

Trump Grants Clemency to Fewer Petitioners Than Any Other President in the Past 120 Years

  Trump Grants Clemency to Fewer Petitioners Than Any Other President in the Past 120 Years When looking at the raw numbers of pardons and commutations, the president is low on the list compared to his predecessors as he granted clemency to only about 1.7 percent of the people who petitioned him for it. Since taking office, Trump has pardoned 116 people and commuted sentences for 89 others. That's 96 fewer pardons and 1,626 fewer commutations than his predecessor, President Barack Obama, granted in his time in office.The bulk of Obama's pardons and commutations came during the 2017 fiscal year, the end of his time in office.

a group of people posing for the camera: 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 © AP Photo/Manuel Balce Ceneta 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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