First published on Jan. 20, 2021. Updated on Jan. 24, 2021 with a postscript by the author on the pardon for Stephen Bannon.
Former President Donald Trump issued numerous pardons and commutations to friends, family and associates, as well as felons who engaged in heinous crimes involving war crimes, murder, political corruption, and civil rights violations. He seemed to revel in absolving corrupt politicians, corrupt law enforcement officers, and of course, anyone prosecuted by Robert Mueller’s Special Counsel Office. The latter served not just to reward those who refused to cooperate with this Special Counsel, but also undermined future Special Counsel investigations by setting a dangerous precedent for future efforts to conduct such independent investigations, and to hold a corrupt president to the rule of law.
In issuing his pardons, Trump, true to form, followed no process. He did not seek to identify those most worthy of the use of the clemency process. Instead, his abuse of this constitutional power has led many to deplore the expansive executive authority, although it can be a means of meting out justice when wielded impartially and even-handedly to the most deserving after due consideration of the interests of numerous parties.
But there is good news. If the Biden administration’s Department of Justice wants to rectify some of Trump’s abuse of the pardon power, there are now options at its disposal.
Some of the pardons Trump issued were exceedingly broad, such as that given his National Security Advisor Michael Flynn, who admitted in federal court when he pleaded guilty that he had lied to the government about his conversations with the Russian Ambassador to the United States, but then later claimed he had lied — this time to the court — when he swore that he was guilty. Flynn’s pardon (on Nov. 25, 2020) covers most any crime one can imagine, clearly seeking to leave no room for now holding Flynn to account for his past felonious conduct.
But, oddly, not all of Trump’s pardons followed the Flynn model. Indeed, many are narrowly drawn.
The pardon for Paul Manafort (on Dec. 23, 2020), is illustrative. By its own terms, the pardon covers only the crimes “for his conviction” on specific charges and not any other crimes (charged or uncharged). Specifically, the pardon is solely for the crimes of conviction — eight in the Eastern District of Virginia and two in the District of Columbia. That leaves numerous crimes as to which Manafort can still be prosecuted, as in Virginia there were 10 hung counts. 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.
What’s more, the trial on such charges would be unusually simple. First, as part of his plea agreement, Manafort admitted under oath the criminal conduct in Virginia as to which the jury hung (although he did not plead to those counts and thus they are not subject to the pardon). In addition, he admitted in writing the underlying criminal conduct in Washington. Thus, proving the case could largely consist of introducing Manafort’s sworn admission to the charges.
Second, all such charges could be brought in Washington, and not require two separate trials (in Virginia and D.C.), since Manafort waived venue in his plea agreement Third, Manafort waived the statute of limitations — the deadline by which a prosecution must be brought — and thus all these charges would not be time-barred.
Finally, because the Washington, D.C. district judge, the Honorable Amy Berman Jackson, ruled in February 2019 that Manafort breached his cooperation agreement by repeatedly lying to the government, the court found that the government is not bound by the provision in the cooperation agreement not to pursue these other charges. That cooperation agreement explicitly provides that Manafort’s admissions as part of his plea can be used against him in a future trial of such charges.
In Manafort’s case there are also equitable reasons to take such a step now; he served just two years of his 90-month sentence, and his release on home confinement (prior to the pardon) due to the COVID virus, did not comply with the Bureau of Prison rules as he had not served the requisite percentage of his prison sentence (i.e. before he received an undue pardon from Trump, he received a release from prison that others similarly situated did not receive). And the pardon itself rewarded not just decades of substantial criminal activity, but also rewarded Manafort for keeping his lips sealed and lying to the Special Counsel about important topics. These topics include why he passed internal Trump campaign polling data to a Russian spy and why he met with that spy both during the campaign and after Trump took office. Reimposing appropriate punishment — one imposed by two courts —is thus not only fair in a system wedded to the rule of law, but may increase the chance of finally learning the truth.
Manafort is not the only example of narrow Trump pardons that may be rectified by the incoming Attorney General. The same narrow pardons were provided to Special Counsel Office defendants Roger Stone (Dec. 23, 2020), George Papadopoulos (Dec. 22, 2020), and Alex van den Zwaan (Dec. 22, 2020), as well as the myriad other felons who received pardons or commutations on December 22 and 23, 2020. As noted, these defendants include murderers, corrupt politicians and law enforcement officers, and Philip Esformes, the single largest health care fraudster in history. These windows of opportunity are due in significant part to a practice followed by prosecutors’ offices across the country: permitting defendants to plead to some, but not all, of their crimes. That feature of these cases should now redound to the benefit of the government, as it may now permit the Department to see that justice is done.
A responsible Department of Justice should determine for each such defendant whether, like Manafort, there is sufficient evidence to support charges other than those for which the felon was convicted, and whether such charges are warranted under the circumstances. Such an examination is particularly appropriate given that there is reason to believe that the Department of Justice never had an opportunity to weigh in on these pardons before Trump issued them.
Many may wonder what the reason is for the striking difference between the sweeping Flynn pardon in November and the narrow pardons issued on December 22-23, 2020. Was it by design or an oversight? Is this an example of what some noted about the Trump administration: malevolence, fortunately matched by incompetence? Or did lawyers in the White House Counsel’s office seek to advance only the narrowest pardons possible, so as not to exacerbate Trump’s abuse of his office? Regardless of the answer, which may never be known, the narrow pardons leave the Biden administration ample room to stand for the rule of law.
POSTSCRIPT BY AUTHOR ON PARDON FOR STEPHEN BANNON
On the last day of his presidency, Trump issued a pardon to Steve Bannon, who was under indictment in federal court in New York, and was awaiting trial. The pardon has similar flaws as that noted above: it applies to the pending “offenses charged,” and not the underlying conduct, as it pardons Bannon for the specific counts charged. It also pardons crimes that could be charged for the underlying conduct under chapter 95 of title 18 of the United States Code (basically racketeering type charges). But that clearly leaves — unpardoned — numerous potential federal charges, such as mail and wire fraud. It is rare that a prosecutor charges all such counts that could be charged, as it would overwhelm a jury and is unnecessary to increasing a sentence upon conviction. (In Enron, for instance, we could have charged hundreds of such charges against certain participants, but we opted to charge representative examples.)
It is thus highly likely that local federal prosecutors will be scouring their evidence to determine what other charges can be brought. The decision about whether to charge these new counts, however, is relatively easy, if there is sufficient evidence, since the decision about whether this defendant should be charged with in connection with the conduct at issue had already been answered in the affirmative. Finally, whether or not the federal authorities take this step, the state prosecutors are free to charge this scheme under New York law, for which a pardon has no effect.
 Flynn’s pardon covers “any and all possible offenses arising from the facts” in his Criminal Information and Statement of Offense, “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel” and “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel.”