Recently president Trump pardoned Philip Esformes who was convicted of what is believed to be the largest Medicare fraud in history (estimated around $1 billion). (This is GQ so this is only to setup the question, please don’t comment on what you think of the people or the pardon.)
Apart from his prison sentence Esformes was ordered to pay $44 million to the Medicare program and the US government. Near as I can tell that was to pay back the money he gained in the fraud. Esformes also had to pay a $202,000 fine as part of his sentence.
So, with the pardon, does that mean the government has to return the $44 million and the $202,000 fine to Esformes (assuming it was paid)?
Esformes’ prison sentence was commuted by the president on Tuesday, but other aspects of his sentence, including supervised release and millions in restitution, remained intact
My question is the same. I assume a pardon does not get anyone out of civil liability either? So, if the person being pardoned had any assets of note, they could be sued for them?
What I am curious about though is if a criminal conviction of a person helps the plaintiff in a civil lawsuit against that person. Which is to say, in civil court, can the defendant still say, “I didn’t do it” or can the plaintiff just point to the criminal conviction and note that yeah…they did “it” so let’s skip ahead a bit?
And if that is the case then does a pardon reset it all and the defendant can say, “Nope, totally didn’t do it. President said so.”?
A little more digging comes up with a few partial answers:
A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution. A remission applies only to the part of the financial obligation that has not already been paid.
So it looks like commutation doesn’t allow for refunds. But the paragraph just below this one about pardons doesn’t mention fines. It specifically calls out civil disabilities (such as voting or firearms ownership) so I would imagine the same rules that apply to commutation apply to pardons with respect to fines.
No. A pardon may (but need not) include a “remission” of financial liability arising from the criminal case (fines, penalties, forfeitures, and even restitution), it does not extend to money already paid. And to know if a pardon includes a remission at all, you need to look at the pardon itself, since it will be a case-by-case question.
I think no. Traditional issue preclusion (collateral estoppel) requires a final judgment on the merits of the “issue.” A pardon, by definition, eliminates the final judgment (and I think that the line in Burdick about pardons being an acceptance of guilt is untested, almost certainly either wrong or misunderstood, and being misused for partisan reasons). And I would suspect a court would not allow evidence that there had been a conviction. That said, the evidence from the criminal case is, presumably, still available. And, most significantly, I would think that if you entered a guilty plea that fact would be powerful evidence regarding your liability and your statements in the plea colloquy certainly seem like they should be admissible.
A “pardon for innocence” is a long and well-established tradition. But it’s still fundamentally an act of executive grace – it doesn’t really make you more or less innocent, it just makes you pardoned and has certain collateral benefits.
I agree. The pardon power is in place, in part, for situations when the justice system simply failed through no particular fault of anyone or no violation of any legal rules. I mean, it’s for situations where, we followed the rules, but the guy was wrongly convicted. This one slipped through the cracks and instead of letting the guy do 20 more years in prison, we just pardon him. The dicta in Burdick should be expressly overruled, but this is GQ, so I won’t comment further.
To the OP, no. A pardon simply means go and sin no more (if you sinned in the first place). You and the government are square. You owe nothing, but the government owes you nothing either. The government will not bring the thing up for purposes of any future disabilities, but it’s not taking back anything either.
I think it was some congressperson complaining that some recent pardons were Trump setting the stage to make it harder to convict him of any alleged crimes by pardoning his fellow participants.
My understanding is the opposite - that having accepted a pardon, an (ex)perp now cannot plead the fifth to avoid testifying about the evidence involved. This would suggest that should some hypothetical president pardon people in hopes they gratefully not give testimony against him about some hypothetical crime, that would be a mistake. The pardonees(?) would have the choice of telling all the facts, or refusing to testify and receiving a post-pardon contempt sentence, or perjuring themselves post-pardon which would also lead to jail time.
Presumably the same applies to civil cases? AFAIK, IANAL there is no fifth amendment for civil testimony, you can only plead the fifth if it would put you in criminal peril? (“I refuse to answer on the grounds that it may cost me a lot of money, your honor.”) Once pardoned of the crime, are you obliged to answer fully and truthfully in civil court about your criminal actions?
Yes, that is indisputably correct. Suppose I punch a fellow poster. The governor may pardon me for that battery, but he or she cannot get me out of any civil tort damages for that. The governor would be saying, in effect, that I am square with the state on any criminal liability. He or she cannot and does not have the power to say that I am square with the harm I did to the fellow poster. That is still between me and the poster.
Consider Burdick: Mr. Burdick refused to testify in front of the grand jury (invoking the Fifth Amendment). He was offered a sweeping pre-emptive pardon for, essentially, any federal crime that he might have committed in connection with the matters being investigated or his conduct in front of the grand jury.1 The purpose of this pardon was to accomplish what you suggest. Burdick refused the pardon and the story goes on.
But consider the recent pardon for Ignacio Ramos (I picked one at random from the Pardon Attorney website) – that pardon is for “his conviction” in the district court “on an indictment” charging various violations of Title 18. This rather obviously extends only to the indictment and conviction and (most likely) to the legal theories that were presented to the jury. But, of course, the same conduct can violate numerous federal laws and I wouldn’t think that the pardon would necessarily extend to them. And, of course, it can’t extend to state law offenses, many of which overlap substantially with federal crimes (although Ramos was, I see, a federal officer who was convicted for crimes committed in the course of his employment, so he probably wouldn’t be at great risk for a state conviction – sovereign immunity – but that is unlikely to be true for most pardonees).
I don’t know if there’s been authority on this, but it would be very easy to imagine a sensible argument that someone who had received a federal pardon still had a real Fifth Amendment interest to protect. Especially for any sort of financial crime. (Subject, I think, to the standard double jeopardy analysis).
1Burdick itself is one reason that the dicta in Burdick can’t possibly mean what has been suggested in several threads here – are we really suggesting that, in accepting the pardon, Burdick would be admitting guilt to every federal crime he could have possibly committed (even those he clearly did not commit) in some legally-relevant way?
Going back to whether the government would refund fines and recompense paid to someone who has been pardoned - it certainly doesn’t “pay back” the time they spent in prison.
I do not know about the feds but some states will give money to a person wrongly imprisoned. Not sure if they write a check when someone is pardoned though (state governor in that case).
I would assume the same applies to a pardon and the state’s civil liability. Pardoning a person for a crime they did not commit obviously does not free the state from liability for wrongful imprisonment. The civil trial would consider the evidence all over again; whatever led to the pardon may or may not be relevant.
The opposite applies with OJ Simpson, for example - he was found not guilty of murder, but judged civily liable to the family of one murder victim. (So he moved to Florida; apparently moving to Florida is a good idea for anyone facing civil liability because no matter how expensive their primary dwelling, it is exempt from being seized by the other party or from bankruptcy - which often results from being found liable for a large amount.)
I heard an interview with Manafort prosecutor, Andrew Weissmann. He suggested that Manafort’s criminal forfeiture might be able to be overturned and added language making clear that the assets were seized on both a criminal and civil basis so as to dodge being undone by a pardon.
One of the things that we did anticipating that he might get a pardon is that when Paul Manafort pled guilty in the District of Columbia, we made sure that he agreed with respect to the forfeiture that it was going to be imposed criminally and civilly.
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With a pardon, that wipes away attributes of a criminal conviction. But you cannot be pardoned for civil liability, so that’s something that will stand. And there’s no ability for Paul Manafort now to go back and say, you know, I want my money back.
A pardon can mean that someone was wrongly imprisoned and that as the courts are done with the case, the only remedy left is executive clemency. A pardon could also mean that the executive believes the person is indeed guilty, but for whatever reason believes that the time he has served is sufficient.
Keeping it as GQ as possible, that’s why the dicta in Burdick should be overruled. If I am in a situation where newly discovered evidence has almost certainly proven me innocent, but court rules say that I am time barred from introducing the evidence, should I turn down my only chance for release? Should I refuse the governor’s pardon because Burdick says I am admitting guilt? Factually speaking, I am not admitting anything. I just want to get out of prison by the only way I can.
From a comparative law perspective: English common law distinguished between a “free pardon” and other pardons. A free pardon was an admission that in some way the justice system had screwed up and clemency was necessary for someone who had not truly committed an offence. Accepting a free pardon is the opposite of admitting guilt. That concept of a “free pardon” has been continued in other Commonwealth countries, like Canada.
Does US law not make this distinction? or is that what the Burdick dicta is about?
I have never heard of a “free pardon” or the other distinctions. The Burdick dicta states that for a pardon to be effective, the defendant must accept the pardon, and acceptance of a pardon is an admission of guilt and a confession to all of the elements of the crime.
The criticism of that dicta is that it is overly formalistic. If I am in jail for life, or even facing a lethal injection, of course I am going to accept a pardon. That acceptance is obviously in my best interests and it seems overly formulaic to say that I have therefore admitted guilt.
Not at the federal level, I don’t think. So states draw a distinctions (Virginia talks about “simple pardons” and “absolute pardons”; North Carolina talks about “pardons of forgiveness” and “pardons of innocence”). I don’t know if there is a legal distinction between the two, although North Carolina seems to make expungement of your criminal record easier if you get a pardon of innocence. And you may be eligible for compensation for unjust imprisonment (28 USC 2513 seems to contemplate a pardon of innocence-style pardon for purposes of making a claim against the United States – even though federal pardons don’t seem to make the distinction(?)).
I’m also note sure, as a practical matter, how you can make that distinction for a preemptive pardon (which Burdick involved), which has to be very broad in scope to be at all effective. My objection to the Burdickdicta is that it makes no sense in the context of Burdick (as I’ve said repeatedly). That leads me to think that it must be misunderstood.