Poke the Bear: Presidential pardons, commutations and his family business

Brief: The next in the Poke the Bear series of essays, this piece focuses on the outbound President and the many rumors swirling around the potential preemptive pardon of his three children, his son-in-law, and his personal attorney. I’ll also make an generous assumption that President Elect Joe Biden, acolyte of governmental norms, will follow President Gerald Ford’s actions in granting a pardon to Nixon by pardoning Donald Trump as a gesture similar to President Carter forgiving “certain persons who, during the Vietnam War era, violated the Military Selective Service Act by draft-evasion acts or omissions committed between August 4, 1964 and March 28, 1973”¹.

Given both heavily reported rumors and my assumption, I’ll explore possible commercial ramifications of those pardons, including their limited scope. Poking the bear a bit, I’ll also allude to what the DOJ prosecutors or state Attorney’s Generals offices could do to ensure some amount of accountability under the DJT nepotistic pardon scenario or, in the case of a PE Biden conciliatory pardon action of DJT, split the difference by still facilitating downstream karmic justice.

The essay

The headlines

It seems almost silly to cover it here given how much coverage DJT’s assumed presidential pardons have received elsewhere (NYT is even running a dedicated page for it, aggregating all the related coverage). That being said, for our readers that aren’t steeped obsessively in the Beltway stage play that is part Macbeth, part King Lear, and part…any other Shakespearean character driven by fear, narcissism, or madness²: Trump has discussed with advisors the possibility of preemptively pardoning his three children, his son-in-law, and his personal attorney.

(Go read “The Captain and the Glory” from last year!)

Trump’s anticipated pardons would be in the same vein as Ford’s for Nixon; it’d cover the actions for these characters while playing their part on the executive stage with their benefactor.

Fox News’ Sean Hannity, and many of his entertainment (to distinguish vs. their “news”) peers amongst others, are suggesting Trump should pardon himself preemptively as well. There is less precedence here, but for this sake of this discussion today, it’s a moot point. Let’s just assume it is possible for DJT to pardon himself or that PE Biden pardons Trump.

A presidential pardon

It’s natural to ask, in this context, what exactly a presidential pardon is and what it is not.

Firstly, let’s start with a direct excerpt of Presidential pardon powers from granted by Article II, Section 2, Clause 1 of the US Constitution:

The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Secondly, it’s worth noting what these pardons mean, if granted to and accepted by criminals, as decided by case law and interpretations by various executive agencies:

1. The pardon does not signify innocence, in a legal sense, of having committed the crime or crimes for which they are being pardoned. (I’m not going to dive into “amnesty” here, which the SCOTUS has also interpreted as being with the power of the POTUS.)
2. The pardon is only applicable to federal crimes, and is not applicable to crimes prosecuted in and convictions in state jurisdictions/courts. A pardon is applicable “for Offenses against the United States” not an offense against a single, particular state (as would be implied by pardon power for a state crime).
3. As noted in US vs. Wilson, a pardon is not complete in its full legal sense unless the defendant accepts the pardon. The Burdick case takes this rejection implication quite far:

Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.

4. Pardons have been used to prevent subsequent indictments, as in the case of Nixon, which a priori killed any DOJ investigations into other crimes (which isn’t to say Nixon got off scot-free in the court of public opinion!). This particular angle could, admittedly, ruin my entire argument hereafter.

5. A federal pardon does not immediately grant an individual rights conferred by the state, such as the right to vote, the right to run for state office (though, notably, the convicted can regain their right to bear arms. Not surprising!). Reinstating those rights require working with the various relevant state offices.

Pardon ramifications

Now, given everything we now know from the the previous section, it’s worth restating that granting a pardon and accepting a pardon— assuming Trump’s children, Kushner and Giuliani accepted said pardon—means all individual would still be admitting their guilt in a federal crime, the “infamy” alluded to by Burdick. These individuals would furthermore lose rights that are bestowed by the states within which they live and operate businesses as directors. And this coterie of DJT’s innermost circle would still be not be free of pursuit by state AG’s offices for criminal offenses in their states or private citizens or corporations from filing civil cases at a state level.

Part of of the Burdick verdict that I found particularly succinct at setting up the direction I was headed before even having read it: “A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment.”

A presidential pardon therefore doesn’t protect Ivanka, Eric, Donald Jr. or Jared from the following:

1. State AG’s offices pursuing this group for financial crimes, such as that being pursued by the NY state AG’s office related to fraudulently overvaluing assets in their tax filings or write-offices therein.
2. Not that they’d necessarily consider it, but the kids wouldn’t be running for office anytime soon in their home state of New York given they’d be prevented from public office jobs, including elected, appointed or hired. I don’t see the a Certificate of Good Conduct (CGC) being granted anytime for the family.
3. Sections (d) and (e) of Rule 506 of Regulation D under the Securities Act of 1933 calls out provisions for preventing “bad actors” from performing a number of actions related to buying and selling securities, or performing some actions and duties understood to be required of officers of a corporation. An SEC commission under the Biden administration could look to apply sections of this law vis-a-vis the Trump children with a hand tipped in a particular direction on the scales. This to me is a particularly interesting path of accountability or retribution (choose your semantic flavor here). This could prevent a challenge in raising capital via securities offerings if the children are general partners or directors of a commercial entity. Play that out in your mind in terms of ramifications for their roles in the Trump companies or even Jared’s participation in his family’s real estate businesses.

Unfortunately, Giuliani would likely still be able to practice law as the American Bar Association doesn’t disbar for being convicted of major crimes. If they haven’t disbarred him for conduct unbecoming a practitioner of law at this point, will they ever? Apparently making repeatedly false claims in the public courts of television, Twitter and newspapers isn’t sufficient, and his back-pedaling in court after court might be his saving grace there.

As this piece is somewhat a thought exercise on what could follow a pardon, and less so an explicit advocacy for subsequent actions, I’ll leave it to you, reader, and federal plus state authorities to draw their own conclusions around next steps.

Concluding semi-apropos thought

The above “conclusion” being said, I thought I’d end this particular essay with a quote from Princeton historian Kevin Kruse from Evan Osnos’s Biden bio³:

“…every time we mistake basic accountability for baseless vindictiveness, we invariably pay a price for it later on. When wrongdoers who should be held accountable skate, they often return to roles of public importance later on, and they’re emboldened because they know they got away with it once before.

…If you don’t hold people accountable, it only undermines faith in our institutions.”

Footnotes:

[1]—Vietnam War Pardon Instructions as hosted by the Department of Justice Office of the Pardon Attorney

[2]—I have too much podcast and book trivia floating in my head, but I’m pretty sure this idea was floated originally by scifi author Kim Stanley Robinson in his interview with Ezra Klein. If I got the wrong episode, let me know and I’ll update this footer!

[3]—Excerpted from p.150–151 of “Joe Biden: The Life, the Run, and What Matters Now” by Evan Osnos.