DoJ Probes 'Bribe for Pardon'; NYT Says Rudy Giuliani Discussed Clemency With Trump

By Jacob J
December 2, 2020 14:35 +08

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Court records unsealed on Tuesday showed the Department of Justice is investigating a potential bribe for pardon scheme under which unnamed individuals lobbied for presidential clemency in exchange of monetary reward.

The 20-page court document was reviewed and signed by Federal Judge Beryl Howell in August this year. The judge reviewed a government request to obtain communications related to a secret lobbying scheme for presidential pardon.

"The political strategy to obtain a presidential pardon was 'parallel' to and distinct from [redacted]'s role as an attorney-advocate for [redacted name]," the judge wrote in the order.

The names of all individuals mentioned in the court order are redacted. The Department of Justice also clarified that no government official was or is currently a subject or target of the investigation disclosed in this filing, according to CNN.

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No Proof of Money Exchanged

The prosecutors did not provide the judge proof of any money having been exchanged. However, they submitted evidence to prove that the subject sought presidential pardon in view of their past and future political contributions.

Though the expose has come at a time speculation is intense over who are in President Donald Trump's list of federal pardons in the final weeks of his presidency, the document does not reveal a timeline of the alleged scheme.

However, the expose happened on a day when the New York Times reported that President's lawyer Rudy Giuliani had sought the possibility of getting a presidential pardon.

While the White House declined comment on the development, President Trump tweeted it was 'fake news.'

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'Substantial Political Contribution Offered'

The scam unfolded when a filter team, tasked with ensuring prosecutors don't get tainted evidence, accessed as many as 50 digital devices including iPhones, iPads, laptops, thumb drives and computer drives. Further probe led the prosecutors to the belief that the devices contained emails that showed criminal activity. In the alleged plot, the conspirators offered a substantial political contribution in exchange for a presidential pardon or reprieve of sentence."

Though much of the focus is on President Trump in the waning days of his presidency as to who he will pardon next, the records show that Trump has been particularly frugal in awarding clemency. He has only given 29 pardons and 16 commutations so far. There's expectation that more pardons and commutations will happen before he exits office.

Here are 10 Key Facts About the Presidential Pardon in the United States:

1. Article 2 of Constitution
The presidential powers of pardon stem from the Article Two of the United States Constitution, Section 2, Clause 1. It says: The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment." George Washington, the first president, used this power when he pardoned the leaders of the Whiskey Rebellion.

2. Can be Granted on a Presumptive Basis
The precedent is that the presidential pardon can be made on a presumptive basis. The nearest example is that of Republican president Richard Nixon, who was pardoned by Gerald Ford. Nixon, who was impeached over the Watergate scandal and resigned from office, had not been charged with anything. Yet the pardon by his former vice-president made sure he was not troubled by any legal challenged arising out of his contentious days in office.

3. President Does not Have to Show a Reason
This makes the pardon a straightforward matter for the president's view point. He does not have to present an argument about the mitigating circumstances in which the convict was seen. Besides, a presidential pardon is not reviewable by other branches of the government.

4. Self-Pardon has no Precedence
The the ability of a president to pardon himself is untested in the history of the United States. So Trump might as well 'try' it. Such a move will open a whole new legal chapter in the history of the US. Constitutional expert Brian Kalt said: "When people ask me if a president can pardon himself, my answer is always, 'Well, he can try ... The Constitution does not provide a clear answer on this."

5. Pardon Overturns Conviction but Record of Conviction Stays
A presidential pardon erases the criminal conviction but it does not, crucially, wipe out or expunge the record of the conviction. For example, a person pardoned must still disclose that he was convicted of an offence. He can of course, also disclose that he was pardoned.

6. Only Federal Crimes can be Pardoned
A presidential pardon only applies to federal crimes. The US constitution has clearly said it applies only to crimes against the United States. The Prosecution under state laws will still go ahead even if someone has been given presidential clemency.

7. Trump can Pardon Family
Ivanka Trump
Republican presidential nominee Donald Trump and his daughter Ivanka Trump attend a campaign rall Reuters
It's legal and there is recent precedent. President Bill Clinton pardoned his brother Roger Clinton on the last day of his presidency in 2001.

8. DOJ Opposed Self-Pardon in 1974
When Richard Nixon considered self pardon, the Department of Justice had opposed. Instead, the DOJ said Nixon could use another route. He could temporarily step down, be pardoned by the vice-president and then take power again. This could be done under the provisions of 25th Amendment of the US Constitution, which allows a president to stand down from office temporarily on account of any sort of inability.

9. Subject's Acceptance is Must for Pardon
For a pardon to be effective, the subject should accept it. And there have been cases in which the subject has turned down the pardon. In 1833, George Wilson, who was as convicted of robbing the US Mail in Pennsylvania and sentenced to death, was pardoned by president Jackson but the convict rejected the pardon.

10. Accepting Pardon an Admission of Guilt?
If indeed President Trump pardons himself, the moral weight of the confusion regarding the guilt element involved in presidential clemency will come to rest on his shoulders. In 1915, Associate Justice Joseph McKenna ruled that a pardon "carries an imputation of guilt; acceptance a confession of it." He was pronouncing judgment in the Burdick v. United States case.