The moment that Donald J. Trump’s presidency ended, a former prosecutor from the special counsel’s office in the Russia inquiry publicly unveiled an argument that Mr. Trump’s White House had erred in a wave of contentious pardons last month — leaving some recipients vulnerable to new prosecutions.
“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,” the former prosecutor, Andrew Weissmann, wrote in an essay posted on the legal website Just Security just after noon.
Mr. Weissmann argued on Wednesday that the wording of Mr. Trump’s pre-Christmas pardons was “oddly” drafted. The pardons narrowly covered the recipients’ convictions — rather than broadly relieving them of all potential liability for their actions.
Many of the recipients could be charged with more crimes than those for which they were convicted, he said.
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.
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.