With some conservatives urging the President to pardon Trump associates caught up in the Russia investigation, there’s a reason that option may simply fail the president. That’s because individuals like Jared Kushner, Donald Trump Jr., and Paul Manafort will need to think twice before accepting any offer of a pardon. Especially if their actions involved financial wrongdoing, these individuals must contemplate not only federal prosecutors coming after them, but also state attorneys-general like New York’s Eric Schneiderman. The dilemma for these Trump campaign affiliates is not simply that a presidential pardon would fail to erase the risk of a state prosecution, but rather that their acceptance of such a pardon may significantly increase the prospect that state prosecutors will both pursue a case and secure a conviction. Let me be more specific as to the reason why: individuals run a significant risk that acceptance of a pardon would be used by state prosecutors as an admission of guilt—bolstering the potential success of any prosecution for related crimes in New York and elsewhere.
This is one more area in which the Russia investigation can take a page of history from Watergate.
The framework in which Kushner and others must operate is fairly well set. A president’s pardon power applies only to federal crimes. Anyone pardoned for federal offenses would, accordingly, remain liable for state crimes that cover the same underlying conduct. Professor Jed Shugerman has led the way in describing the large set of potential state-level offenses that could apply to conduct related to the Russia investigation—including financial crimes and criminal invasion of privacy for abetting the distribution of stolen emails. Accept a pardon for money laundering under federal law? Look out for prosecutions under state money laundering statutes.
But this is not simply about the residual power of a state attorney-general to prosecute in the wake of a presidential pardon. What Trump campaign affiliates have to fear is that acceptance of a pardon could add booster rockets to the state prosecutors’ efforts for closely related state crimes. Officials like New York’s Schneiderman may feel they have an ace in hand if they can walk into a state courthouse with a defendant’s admission of guilt implied by having accepted a presidential pardon. This get-out-of-federal-jail card comes at a price.
In a landmark decision by the U.S. Supreme Court in 1915, Burdick v. United States, the Justices stated that individuals have a right to refuse a pardon because “acceptance” of one carries with it a “confession of guilt.” Over the years, many federal courts have relied on Burdick for this proposition, the most recent including the Arizona court in upholding President Trump’s pardon of former sheriff Joe Arpaio.
It’s here that Watergate has yet another lesson for our times. Ken Gormley, the author of “Archibald Cox: Conscience of a Nation,” explained in a lecture in 2014 for the Gerald Ford Presidential Foundation, that Ford’s personal emissary in negotiating the pardon with Richard Nixon shared with Ford and his closest advisers the “extremely important” case of Burdick due to its implications for Nixon’s acceptance of guilt. That emissary was Benton Becker, and he explained, “President Ford had made it very clear. He said ‘don’t just deliver this … I want you to sit down face-to-face with Richard Nixon and I want you to walk through Burdick, walk through the facts, walk through the history, and walk through the holding.’” When Becker flew to California to offer Nixon the pardon, he brought copies of the Burdick opinion with him. Testifying before the House Judiciary Committee a few weeks later about Nixon’s taking the pardon, President Ford stated, “The acceptance of a pardon, according to the legal authorities—and we have checked them out very carefully—does indicate that by the acceptance, the person who has accepted it does, in effect, admit guilt.” He made clear this applied to Nixon.
Now, don’t get me wrong. This is by no means a slam dunk. As conservative scholar Eugene Volokh recently put it, “Legal authorities, then, are split on the subject of how the law should understand pardons,” and that some pardons seem to be clearly based on a person’s factual innocence. But people like Kushner would then have to make a gamble. Those legal risks are not lost on others. Former federal prosecutor and now defense attorney, Renato Mariotti wrote, “Courts have held that a pardon implies admission of guilt, although some have argued that should be limited.” He cited to Burdick. With similar nuance, Becker also suggested that his research in preparation for speaking with President Ford and Nixon found that the implication of guilt may flow from specific kinds of pardons. Becker referred to “certain forms of pardons, pardons that were issued by Presidents in the best interests of the United States, not having to do with newly discovered evidence.”
Untested is how these considerations may play out in a state courthouse and among jurors. Embedded in Burdick is a deeper truth about the possible impressions created by acceptance of a pardon. Regardless of how lawyers may ultimately decide on the proper legal understanding of such an act, the American people may look to it as an implicit admission of wrongdoing— especially with this president and if his close family members are involved. If they find themselves in this situation, Kushner and others will need to consider their odds—fight the federal rap and potentially be exonerated or end up in a Manhattan courthouse with prosecutors holding a much stronger hand.