Trump’s pardons could still leave people with mercy on the hook

• President Trump’s pardons leave some of his subjects open to further prosecution, experts say.
• His former campaign president, Paul Manafort, can still be prosecuted for specific crimes for which he was not forgiven.
• Even Michael Flynn, who received a broader pardon, could still send him to court.
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Upon leaving office, President Donald Trump issued more than 100 pardons, mostly to his personal friends and political allies.

Several of these pardons went to people convicted of federal crimes linked to the Mueller investigation – including his former National Security adviser Michael Flynn, campaign president Paul Manafort and advisers Roger Stone and George Papadopoulos.

Trump certainly defamed Mueller’s investigation in his pardon notices. The press release for Manafort’s forgiveness, for example, said that he was “prosecuted in the course of the investigation by Special Lawyer Mueller, whose premise was the Russian collusion hoax”.

While the president’s forgiving powers are broad, several prosecutors and clemency law experts still do not believe these people are out of danger.

Trump forgave Manafort for his specific beliefs. It is much more closely adapted than the forgiveness that Trump gave Flynn, for “any and all offenses arising from facts and circumstances” brought by Robert Mueller’s office.

It is also more restricted than the forgiveness that President Gerald Ford gave former President Richard Nixon, which spanned a wide period of time.

“He says ‘for his conviction’ and that’s it. It’s just for the crimes for which he was convicted,” Kimberly Wehle, a law professor at the University of Baltimore, told Insider. “This is a different formulation than that which Richard Nixon received under his pardon, which is for ‘every conceivable crime’.”

Seth Wenig / AP

Wehle, who worked for Independent Counsel Kenneth Starr at the Justice Department, said that presidents should specify the specific crimes that are being forgiven.

In addition, prosecutors can always try to make different charges using the same set of underlying facts, she said.

The same point was raised by Andrew Weissman, Mueller’s second-in-command, in an article for the Just Security blog on Wednesday. Weissman argued that while Flynn’s forgiveness “did not leave space for the time being to hold Flynn accountable for his past criminal conduct,” Manafort’s forgiveness was full of holes.

“Specifically, the pardon is only for conviction crimes … This leaves numerous crimes against which Manafort can still be prosecuted, since in Virginia there were 10 charges pending,” Weissman wrote. “In Washington, the situation is even more open. In that district, Manafort has pleaded for a replacement of information containing two charges of conspiracy, while the entire underlying charge – containing numerous crimes of money laundering, the tampering of witnesses, the violation of Foreign Agents. Registration act – now remains open to prosecution, as there was no conviction for these charges. “

Read More: Could Trump massively forgive his supporters who protested on Capitol Hill? Constitutional law experts have an opinion.

There are other obstacles as well.

Prosecutors need to be sure that they will not conflict with the statue of limitations – although Manafort has waived some of these protections, Weissman said. And a judge may decide that prosecutors are simply repackaging the same actions for which a person has been pardoned for different crimes, which may conflict with the constitution’s double risk protection.

But Wehle said there is a lot of jurisprudence for judges to review. While federal prosecutors have rarely tried to circumvent presidential pardons, state prosecutors often file new criminal charges after state pardons from governors and have been successful.

“Let’s say there has been a theft and a murder, and you are indicted and prosecuted for the theft, and then they come back and indict you and sue you for the murder,” Wehle said. “I don’t think this is a problem of justice here.”

Experts think Flynn may also be unsafe

Some pardon lawyers even believe that federal prosecutors may still file new charges against Flynn.

Margaret Love, a clemency lawyer and a pardon attorney with the U.S. Department of Justice between 1990 and 1997, believes that forgiveness for Flynn may have enforced powers that Trump didn’t really have.

Love told Insider that while Trump could grant Flynn clemency for the crimes for which he was prosecuted, a judge may rule that “any and all offenses arising from facts and circumstances” may not be valid.

“The president can assert whatever power he has, but the question is whether he has the power,” said Love, adding: “I believe there is a strong argument that the power of constitutional pardon requires a degree of specificity as to what crime is. forgiveness. “

AP Photo / Manuel Balce Ceneta

Even the broad forgiveness Ford gave Nixon, Love said, was never tested. The Justice Department never took the matter to court to decide whether the comprehensive 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 is an open question whether Biden’s choice of attorney general, Merrick Garland, would choose to open another case against him.

“Whoever the prosecutor in the Flynn case is, no doubt, will be looking closely [the pardon] newsroom just as Andrew Weissman was looking closely [the] Manafort’s forgiveness, “said Love.” Then they will decide what to do. “

Manafort and Flynn’s lawyers did not immediately respond to Insider’s request for comment.