Trump’s pardons could still leave lenient people on the hook

• President Trump’s pardons leave some of their matters open to further prosecution, experts say.
• His former campaign chairman, Paul Manafort, could still face prosecution for specific crimes for which he has not been pardoned.
• Even Michael Flynn, who received a wider pardon, could still get him tested in court.
• Visit the Business Insider homepage for more stories.

On stepping down, President Donald Trump granted more than 100 pardons, mostly to his personal friends and political allies.

A number of those pardons involved people convicted of federal crimes related to the Mueller investigation – including his former national security adviser Michael Flynn, campaign chairman Paul Manafort and advisers Roger Stone and George Papadopoulos.

Trump was sure to disparage Mueller’s investigation in his pardon notices. Manafort’s pardon press release, for example, said he was “prosecuted during Special Adviser Mueller’s investigation, which was based on the Russian collusion hoax.”

Although the president’s pardon powers are broad, a number of prosecutors and leniency law experts do not believe these people are off the hook just yet.

Trump pardoned Manafort for his specific convictions. This is much more narrowly fitted than the forgiveness Trump bestowed on Flynn, for “all offenses arising out of the facts and circumstances” introduced by Robert Mueller’s office.

It’s also narrower than the forgiveness President Gerald Ford bestowed on former President Richard Nixon, which spanned a wide period.

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

Seth Wenig / AP

Wehle, who worked under the direction of independent attorney Kenneth Starr at the Justice Department, said presidents must spell out the specific crimes that are pardoned.

Beyond that, prosecutors can always try to lay different charges using the same set of underlying facts, she said.

The same point was made 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 left “no room for Flynn to account for his past criminal conduct,” Manafort’s forgiveness was full of holes.

“Specifically, the pardon is only for convicting crimes … That leaves many crimes for which Manafort can still be prosecuted, as in Virginia there have been 10 counts,” Weissman wrote. “In Washington, the situation is even more open. In that district, Manafort argued for alternative information containing two conspiracy charges, while the underlying full indictment – containing numerous crimes ranging from money laundering to witness tampering , violation of Foreign Agents Registration Act – now remains open to prosecution as no convictions have been passed on these charges. “

Read more: Could Trump pardon en masse his supporters who revolted on Capitol Hill? Experts in constitutional law intervene.

There are other obstacles as well.

Prosecutors need to make sure they don’t go against the statue of limitations – although Manafort has waived some of those protections, Weissman said. And a judge could decide that prosecutors are simply repackaging the same actions for which a person has been pardoned into different crimes, which may violate the dual protection of the Constitution.

But Wehle said there was a lot of case law for judges to consider. While federal prosecutors have rarely attempted to circumvent presidential pardons, state-level prosecutors have often brought new criminal charges following pardons from state-level governors and have been successful.

“Let’s say there’s been a robbery and a murder, and you’re charged and prosecuted for the theft, and then later they come back and charge you and sue you for the murder,” Wehle said. “I don’t think there is a fairness issue there.”

Experts think Flynn may not be sure either

Some pardoning attorneys even believe federal prosecutors may still be able to lay new charges against Flynn.

Margaret Love, an attorney-in-law and an attorney-in-law for the U.S. Department of Justice between 1990 and 1997, believes that Flynn’s pardon may have asserted powers that Trump did not actually have.

Love told Insider that if Trump could grant Flynn mercy for the crimes for which he was being prosecuted, a judge could rule that the “all offenses arising from the facts and circumstances” part might not hold up.

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

Photo AP / Manuel Balce Ceneta

Even the broad forgiveness Ford gave Nixon, Love said, has never been tested. The Justice Department never took the matter to court to decide whether the radical nature of the pardon was valid.

Whether Flynn’s pardon would prevent future prosecutions now depends on the appetite of DOJ prosecutors, and it remains to be seen whether Biden’s selection for Attorney General Merrick Garland would choose to wear another case against him.

“Whoever is the prosecutor in the Flynn case will undoubtedly examine closely [the pardon] wording, just as Andrew Weissman watched closely [the] Manafort sorry, “said Love.” Then they will decide what to do. “

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