No Free Pass: The Unintended Consequences of Presidential Pardons

The White House in Washington on Feb. 15, 2024. Madalina Vasiliu/The Epoch Times

Commentary 

A presidential pardon is not a get-out-jail-free card. Those who receive presidential pardons face two significant hurdles.

First, a presidential pardon only wipes the slate clean for federal crimes—it offers no shield against state or local charges. This gap in protection is precisely how Donald Trump found himself entangled in criminal cases across four jurisdictions: New York, Georgia, Florida, and the District of Columbia. Each of these jurisdictions operates independently beyond the reach of presidential clemency, underscoring the limits of federal immunity.

Secondly, presidential pardons leave the door open to civil penalties. Federal or state governments, as well as private parties, can pursue restitution or damages through civil courts, even in the absence of criminal penalties. Individuals who receive pardons may still face a range of lawsuits and financial claims, including those initiated by the federal government.

Ironically, receiving a pardon can heighten the risk of civil lawsuits and state or local prosecution. Pardons attract heightened scrutiny from the public and potential plaintiffs, including well-funded advocacy groups eager to pursue justice or restitution. Preemptive pardons, such as those issued by President Joe Biden, are especially prone to being viewed as implicit admissions of guilt, potentially intensifying the drive for civil litigation or state and local criminal prosecution.

Moreover, since federal crimes are adjudicated in Washington, D.C.—a jurisdiction famous for its Democratic leanings—the chances of securing a conviction would be considerably diminished. Paradoxically, President Biden’s pardons have opened the door for cases to be pursued in courts where political leanings and public sentiment might be less sympathetic to the accused.

But even if those pardoned avoid criminal charges, the U.S. government has robust mechanisms for recovering money or property obtained through illegal activities, such as bribery or fraud. These include civil remedies like claims of unjust enrichment, which allow the government or private parties to argue that an individual improperly benefited from unlawful actions and demand repayment.

For instance, under the legal doctrine of unjust enrichment, courts can compel individuals to repay funds acquired through unlawful means, ensuring that financial accountability can still be pursued despite the absence of criminal penalties.

Another potent tool at the government’s disposal is civil asset forfeiture. Unlike criminal forfeiture, which requires a criminal conviction, civil forfeiture targets the assets themselves rather than the individual. Moreover, unlike criminal law, where the government must prove its case “beyond a reasonable doubt,” civil forfeiture requires only a “preponderance of the evidence” to establish that the assets are connected to illegal activity. As a result, even individuals who have been pardoned can still have their assets seized if they are linked to the offences for which they were pardoned.

Civil forfeiture has been used extensively in cases involving bribery, fraud, and other financial crimes. For instance, if an individual received bribes to secure a government contract, the funds or property obtained through those bribes could be subject to forfeiture, even if the individual is no longer criminally liable.

The government’s arsenal also includes the False Claims Act (FCA) and the Racketeer Influenced and Corrupt Organizations Act (RICO), both of which can be applied in civil cases. The FCA, for example, allows the government to sue individuals or companies that defraud federal programs and to recover treble damages—three times the amount of the loss—plus additional penalties. Similarly, RICO enables civil lawsuits when illegal activities, such as bribery, are part of a broader pattern of corruption.

Individuals pardoned for offences involving government fraud or corruption may face these types of civil claims. The pardon does not shield them from such lawsuits, and the financial consequences can be devastating. In some cases, the government’s civil claims may dwarf the penalties the individual would have faced in a criminal court.

Another significant risk for those pardoned is the potential for restitution and disgorgement orders. Courts may require individuals to return any profits gained from illegal or unethical activities, even if they have been pardoned for those activities. For example, a business executive who paid bribes to secure a lucrative government contract could be forced to repay all profits earned from that contract, regardless of the pardon.

Numerous civil actions have been pursued against individuals who were previously pardoned. For instance, companies involved in international bribery under the Foreign Corrupt Practices Act often face both criminal and civil enforcement actions, including demands to repay illegal profits. Public officials who accept bribes may be sued by state or federal governments to recover the funds.

President Biden’s unprecedented use of the pardon power has placed those pardoned individuals under a legal microscope. State and local officials can pursue criminal charges, while the distinction between criminal and civil liability ensures the slate is never entirely wiped clean. Moreover, the lower standard of proof in civil cases makes it easier for plaintiffs to succeed. Unlike criminal trials, where guilt must be proven beyond a reasonable doubt, civil lawsuits only require proof by a balance of probabilities, making the pardoned individuals vulnerable to financial judgments.

A presidential pardon is powerful but far from a free pass. By granting these pardons, President Biden may have inadvertently drawn attention to the recipients, signaling to potential plaintiffs, advocacy groups, and government agencies that now is the time to act. For those pardoned, the legal battles might only be starting.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.