StefanieKaufmann / Flickr prison...
StefanieKaufmann / Flickr

Many citizens and media commentators have expressed fear that the presidential power of pardon renders futile the ongoing investigations into Trump Campaign complicity into Russian interference into the 2016 Presidential Election.  They need not so fear as long as our state attorneys general do their jobs. 

There are two explicit constitutional limitations on the President’s power to pardon: first, it does not extend to impeachment proceedings; and second, it applies only to federal crimes.  The first is often-enough mentioned by our TV journalists.  The second is not.  

The sole source of the presidential power to pardon is the U. S. Constitution, at Article II, Sec. 2, Clause 1,…, which states that “. . . he [the President] shall have the Power to grant Reprieves and Pardons for Offences against the United States except in Cases of Impeachment.”  Criminal indictments or convictions under state law are not “Offences against the United States.”  

While generally a state governor has the power to pardon criminal act or indictment or conviction under the laws of her own state, the President of the United States does not.  For example, in New York State, the power to pardon is vested in the Governor under the state constitution at Article IV, § 4, see…  

If President Trump, or Paul Manafort, or Donald Trump Jr., or Jared Kushner, or Michael Flynn, or the President himself, or any other Trump campaign associate, committed state as well as federal crimes, Trump cannot pardon them from the state law consequences.  The public and media do not yet know what federal crimes will be charged, but many that can easily be imagined from what is now known have their state-criminal-law counterparts.

For example, if the investigation under Special Prosecutor Robert Mueller uncovers conspiracy to commit money laundering through Russian oligarchs by, for example, Jared Kushner or one or both of the two Donald Trumps, or Paul Manafort, and any act in furtherance of that conspiracy took place in New York state (let’s say at Trump Tower), the perpetrators may be prosecuted under the New York Penal Code, Article 470.00-47.20, as to money laundering see… and as to conspiracy see…  It does not take much imagination to see that much of the evidence made public under the Mueller investigation (even if President Trump pardons himself and all his associates) might be utilized by the New York Attorney General in a state felony prosecution.

If instead (or in addition) acts in furtherance of money laundering scheme were committed in Florida, the likely consequences — potentially decades in prison — would be similar.  See…  

As a further example, if that famous meeting arranged by Don Jr. at Trump Tower in New York, is shown to be in furtherance of a conspiracy to duplicate information from the computer of another (for example, Mr. Podesta or Secretary Clinton) and then disseminate it, the perpetrators may be charged with a felony under (among several other sections) the New York Penal Code at Article 156.35. If convicted, they could go away for a long time.  See… as to the computer crime and… as to the crime of conspiracy.

New York is the most likely state where the alleged conduct constituted state law crimes.  Not only was the Trump Campaign (alleged perpetrator) run out of Trump Tower, but the Clinton campaign (among the alleged victims) was directed out of Brooklyn NY (your faithful diarist’s birthplace).  

The weak link in all of this may be the vigor of the state attorneys general.  In New York, for example, Attorney General Schneiderman has been long on TV appearances and publicity but short on action (see Trump University case where the plaintiff class action lawyers in Judge Judge Curiel’s court did all the heavy lifting, see… and… and…).  Now I find myself nostalgic for Eliot Spitzer and even Andrew Cuomo in their pre-gubernatorial incarnations.  Perhaps public advocacy to take this matter seriously can light the needed fire under Mr. Schneiderman’s prosecutorial posterior.

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This is a Creative Commons article. The original version of this article appeared here.


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