The decision by President Donald Trump to commute the sentence of his criminal cohort Roger Stone, just days before he was to begin a 40-month federal prison term, was described as an act of “historic, unprecedented of corruption” by Sen. Mitt Romney. The commutation has also unleashed a whirlwind of speculation about the President’s use of his Article II pardon powers. Many pundits have pondered whether the President will use his Article II powers to preemptively pardon himself, his family members, and his corrupt political allies, should he lose his bid for a second term.
There is ample justification for this speculation.
Throughout his presidency and his history as a cut-throat businessman, Donald Trump has boasted about his ability to commit and profit off acts most Americans would consider corruption. That will be the historic legacy of President Trump.
The constitutional question then is whether Article II’s presidential pardon powers can protect the President and his criminal cohorts from future criminal prosecution?
There are scores of federal criminal conspiracy statutes, but the one most utilized, 18 U.S.C. Sec. 371, is a statute that could be used to prosecute the President and his criminal cohorts post-presidency. This statute covers two types of criminal conduct: 1) conspiracy to commit a federal offense and 2) conspiracy to defraud the United States. Both crimes have two essential elements: 1) an agreement (2) between two or more persons to engage in the prohibited conduct. All parties in a criminal conspiracy are liable for any foreseeable crimes committed by any co-conspirator in furtherance of the conspiracy. Both offenses require that at least one of the co-conspirators commit an “overt act” in furtherance of the conspiracy—in other words, one act in support of the agreement to engage in the prohibited conduct.
Assuming arguendo that the President has the Article II pardon power to wipe out prosecution of any criminal conspiracy engaged in during his tenure in office, such conspiracies are considered “continuing offenses” for the purpose of the statute of limitations—in other words, the statute of limitations on prosecution begins with the last overt act in furtherance of the conspiracy.
Therein lies the problem for the President and his criminal cohorts—his Article II pardon powers can cover only those overt acts engaged in while he was in office. The pardon would not include any overt act committed post-presidency in furtherance of the original conspiracy.
That’s the inherent danger with a criminal conspiracy—a criminal conspiracy, by its very nature, typically entails a separate conspiracy to cover up the original crime. Thus, those involved in criminal conspiracies undertaken during the Trump presidency would almost certainly have to engage in “overt acts” to cover up or conceal the original conspiracy.
For example, in securing the commutation of his sentence by the President, Roger Stone strongly implied that he has information of criminal wrongdoing by Trump that he, Stone, refused to reveal to prosecutors. That is prima facie evidence of a criminal conspiracy which could result in Stone being the subject of a future Justice Department grand jury investigation or even a Congressional investigation. Even if Trump gives his corrupt political fixer a full pardon before he leaves office, Stone could still be subject to a federal grand jury or Congressional subpoena to determine whether he engaged in any overt acts post-presidency to conceal the original conspiracy.
Use of Pardon as an Act in Furtherance of Conspiracy
Writing in NewCo Shift in September 2017, political analyst Yonatan Zunger made these observations pertinent to our discussion here:
“… The President unquestionably has the power to pardon people, but a pardon used for a corrupt purpose can still be a crime …
“So let’s say — again, completely hypothetically — that you have a bunch of people engaged in a criminal conspiracy, one of whom has pardon power. As soon as any conspirator is charged with anything, including conspiracy, that person pardons them, and poof! The charges vanish.
“But if the pardon itself is done in order to further the goals of the conspiracy of which the pardoner was a member, then it’s also an act in furtherance of the conspiracy — which means that it activates a whole new conspiracy charge, even if it just quashed all the previous ones! And since conspiracy is a group charge, that means that all the conspirators are (once again) subject to it.”
That is the inescapable problem President Trump and his criminal cohorts face—they may well escape criminal liability for an original criminal conspiracy with an Article II pardon. Still, they may not avoid criminal liability for any ensuing criminal conspiracy to not only secure but cover up the conspiracy to obtain that pardon.
So, while Roger Stone may well have escaped an immediate trip to federal prison, the President’s commutation may have opened the door to future criminal liability that could ultimately land him before a criminal court.
In effect, while an Article II pardon may provide the President and his criminal cohorts from past criminal liability, it will not shield them from future criminal liability for overt acts taken necessary to conceal the original criminal liability.