If President Donald Trump tries to pardon his former personal attorney Michael Cohen, would it make a legal difference if Cohen accepts?
“It’s complicated,” pardon scholar Daniel T. Kobil tells Bloomberg Law.
Trump recently said he wouldn’t take clemency off the table for Manafort, but Trump’s ex-lawyer Cohen might be a less likely target for pardon.
Cohen attempted to cooperate with authorities after implicating Trump in criminal activity in August in relation to his guilty plea for campaign finance crimes. The president publicly praised Manafort after he became a convicted felon.
Plus, Cohen’s lawyer previously said he wouldn’t accept one, saying Cohen “is not interested in being dirtied by a pardon from such a man.”
Still, Trump might seek to pardon Cohen, whether he thinks that might head off more legal exposure for the president or to send a broader message to others in his inner circle caught in Mueller’s crosshairs.
The complications in whether Cohen would have to accept a pardon for it to take effect stem from two old U.S. Supreme Court cases, Kobil said.
The 1915 case, Burdick v. United States, said a pardon must be accepted to be effective. In 1927’s Biddle v. Perovich, the court said commutations—which merely reduce sentences rather than forgive crimes like pardons do—don’t.
Most people think the “acceptance” part of Burdick has been displaced by Biddle, Kobil said. But “it is an open question whether a pardon can be rejected by the pardonee,” he said.
A former U.S. pardon attorney—the office that oversees clemency in the Department of Justice—likewise pointed to those two high court cases.
In Burdick, the court said a president can’t use the pardon power to force someone to give up his right against self-incrimination, there to compel a newspaper editor to give up his source, said attorney Margaret Love.
So that case “teaches that there are limits on the President’s pardon power when it is used to manipulate the outcome of a criminal case in violation of other laws or norms,” said Love, who was the pardon attorney from 1990-97 and now represents clients in clemency proceedings.
‘Road to Damascus’?
Of course it’s an open question whether Trump would attempt such a maneuver.
“Trump might pardon Cohen to limit the damage” and “to send a message to other henchmen and henchwomen,” said Kobil of Capital University Law School in Columbus, Ohio.
Then there are the practical questions of what good it would do Cohen at this point.
If he still thinks cooperation is the right thing to do, he could continue to do so even with a pardon.
“He would have to testify in the grand jury or in court if subpoeaned—even if he was not cooperating, he could be subpoenaed—and with a pardon, it would be tougher for him to lodge a Fifth Amendment objection,” said Harry Sandick, a former federal prosecutor now with Patterson Belknap Webb & Tyler LLP.
Kobil said he doesn’t see why Cohen wouldn’t accept a pardon’s benefits, “unless he truly has had a Road to Damascus experience and wants to be a good citizen and a lawyer again.”