Right-wing allies are encouraging President Donald Trump to issue pardons to anyone — including himself — implicated in the special counsel investigation, but legal experts say that won’t come without significant risk.
Some of the president’s top campaign aides have already either pleaded guilty to federal charges or have been indicted in the probe, and his son and son-in-law Jared Kushner also face potential legal jeopardy, but a former Defense Department attorney urged them all to think twice before accepting pardons.
Ryan Goodman — co-editor-in-chief of Just Security and former special counsel for the Department of Defense — pointed out that presidential pardons don’t cover state charges, but accepting one would make state prosecution more likely.
“The dilemma for these Trump campaign affiliates is not simply that a presidential pardon would fail to erase the risk of a state prosecution, but rather that their acceptance of such a pardon may significantly increase the prospect that state prosecutors will both pursue a case and secure a conviction,” Goodman said.
That’s because state attorneys general such as New York’s Eric Schneiderman could perceive their acceptance as an admission of guilt.
“What Trump campaign affiliates have to fear is that acceptance of a pardon could add booster rockets to the state prosecutors’ efforts for closely related state crimes,” Goodman said. “Officials like New York’s Schneiderman may feel they have an ace in hand if they can walk into a state courthouse with a defendant’s admission of guilt implied by having accepted a presidential pardon. This get-out-of-federal-jail card comes at a price.”
The 1915 U.S. Supreme Court decision in Burdick v. United States established that individuals may refuse pardons because acceptance carries a “confession of guilt,” and former President Gerald Ford ensured Richard Nixon understood the stakes when he offered a pardon for Watergate.
“The acceptance of a pardon, according to the legal authorities — and we have checked them out very carefully — does indicate that by the acceptance, the person who has accepted it does, in effect, admit guilt,” Ford testified before the House Judiciary Committee.
Some potential openings remain to be discovered or utilized, but Goodman warned those are still a risky bet given the stakes.
“Regardless of how lawyers may ultimately decide on the proper legal understanding of such an act, the American people may look to it as an implicit admission of wrongdoing— especially with this president and if his close family members are involved,” Goodman said. “If they find themselves in this situation, Kushner and others will need to consider their odds—fight the federal rap and potentially be exonerated or end up in a Manhattan courthouse with prosecutors holding a much stronger hand.”