Dear Reader,

Back in 2016, when I was at the New Jersey Attorney General’s Office, I supervised a case against an electrical contractor named Joseph Longo. Longo ran a medium-sized company that did business with the State: bridge maintenance deals up north, a control panel out west, a sewer project in the hills. Nothing glamorous, but more than enough public work for a guy to make a nice living.

New Jersey law requires that any private company who contracts with state or local governments must pay its employees a certain amount known as the “prevailing wage”; the figure varies, but it’s substantially more than normal minimum wage. Longo, we found through our investigation, habitually falsified his records and paid his employees less than this statutorily-required prevailing wage, saving himself a bunch of money in the process.

After a months-long negotiation, we reached a deal: Longo pled guilty to tampering with public records, and he was sentenced to two years of probation and a $300,000 fine (but no jail time). The resolution was satisfactory, if not particularly satisfying, for both sides. We wrapped it up and moved along.

A year and change later, in late December 2017, as our then-Governor, Chris Christie, was preparing to leave office after completing his second term, he pardoned Longo. We never knew exactly why. Nobody ever meaningfully questioned Longo’s guilt, our plea deal, or the sentence. Longo had donated to various Christie campaigns, but only relatively small peanuts totaling a bit over $1,500. He had his photo taken a few times with Christie, but they weren’t close pals. Longo’s lawyer was Christie’s former right hand man, and a former state AG (who had hired me at the AG’s office, in fact). Maybe it was one of those things, or maybe all three, in some combination.

When the pardon hit, I didn’t feel much – maybe a mild sense of surprise. It didn’t devastate me, nor did it strike me as a horrific injustice. We worked hard on that case, and we thought the guilty plea was just and fair, and the Governor pardoned the guy. That’s how it goes. The line prosecutors who worked on the case directly, and far more intensely than I did as a supervisor, understandably took it harder.

After the pardon, we had cursory internal talks about whether we should try to send the case over to our federal counterparts at the U.S. Attorney’s Office. We decided instead to let it go; we weren’t sure the feds would take it, and we weren’t convinced it was worth another round of legal wrangling. The pardon stood, and the case went away.

One thing we didn’t consider at the time, but I wonder about now: is it rightly the prosecutor’s role to worry about pardons at all? Should prosecutors anticipate potential pardons, or react to actual pardons, to get around them or blunt their impact? Do prosecutors have any business pardon-proofing their cases?

I’m sure you’re already two steps ahead of me; I raise the question here, of course, because of the ongoing spate of prosecutions of Donald Trump. This week, Fulton County District Attorney Fani Willis indicted Trump for interfering with the 2020 election in Georgia. Why, some wondered aloud (including me, here) would such a charge be necessary when DOJ Special Counsel Jack Smith had already lodged federal charges against Trump for his nationwide effort to steal the 2020 election in seven states, including Georgia? Wouldn’t Willis’s case be duplicative, an unnecessary pile-on that could fuel Trump’s mostly-bogus claims of political victimization?

Well, the reply came, Trump might try to pardon himself from the federal cases if he re-takes the presidency – but he can’t pardon himself in Georgia. Willis’s case is necessary, the argument goes, to pardon-proof the federal prosecution.

The argument in favor of this double-barrelled approach is straightforward: pardons sometimes result in unjust outcomes, and that should be avoided. Recall, for example, the rogues gallery sprung by Trump during his final days in office: Roger Stone and Paul Manafort, Steve Bannon and Michael Flynn, Bernie Kerik and Charles Kushner. Who wants to see those guys get a free pass? Or think back to Marc Rich and Roger Clinton, who received final-day-in-office clemency from Roger’s half-brother, if you want examples on the other political side. Why should these greedy presidential cronies get a walk?

The argument against pardon-proofing is less visceral and more institutional. First, the pardon power is specifically reserved, by our federal and state constitutions, to the chief executive – the president in the federal system and the governor in the states (though some states, including Georgia, issue pardons through other administrative channels). Prosecutors serve within the same executive branches over which those chief executives preside. So how is it the prosecutor’s proper function, within our constitutional structure, to foil the will of the chief executive? Doesn’t pardon-proofing, in this sense, constitute an inflated exercise of prosecutorial power – an arrogance of sorts, even? Prosecutors wield unimaginable authority over individual liberty as is. Do they need, or benefit from, a power grab at the expense of a function specifically granted to the president or governor? If the Constitution meant for prosecutors to have influence over pardons, it could and would have said so.

Relatedly, and more problematically, how should prosecutors decide which cases should or should not be pardon-proofed? The feds can’t send every case over to the state as pardon insurance, and vice-versa. So, in choosing which cases to protect against pardons, don’t prosecutors necessarily single out certain defendants for harsher treatment than others? Some might have applauded when, for example, New York state prosecutors charged Bannon after his federal pardon on fraud charges. (Disclosure: I sure did.) But, on reflection, is it fair to pick one particularly obnoxious fraudster for post-pardon prosecution when other pardon recipients who have committed more serious offenses don’t have to endure another round of prosecution? And why does Bannon get singled out? Because he’s horribly offensive (which he is), or because he’s a Trump crony (which he is)? Is that a principled basis on which to decide who gets prosecuted again and whose reprieve will remain intact?

And pardon-proofing doesn’t work so well, on the whole. Take the aforementioned Manafort, for example. After he sustained various federal convictions, Manafort served about two of his seven-plus year sentence before Trump came to the rescue with a Christmas Eve pardon in 2020. Enter the Manhattan District Attorney (then Cy Vance, before Alvin Bragg took over). Plainly seeking to re-inflict the damage that Trump had undone, Vance filed new fraud charges that substantially overlapped with the prior federal cases. But a New York state appellate court eventually tossed out the DA’s charges, finding that they violated Manafort’s right against Double Jeopardy.

I’m not sure an effort to pardon-proof Jack Smith’s cases will amount to much either. The concern is that Trump will pardon himself if he wins the election, nullifying the federal cases – but leaving Willis’s state-level case (and Bragg’s New York hush money case) untouched. But what are we really left with, then? A couple trials – maybe, if the cases survive constitutional challenge – in 2029, of an 83 year-old, term-limited former president, for conduct that happened a decade (or more) prior? Maybe that’s better than nothing, but not by much. (And please: don’t try to argue that these county-level prosecutors will be permitted to try and potentially imprison a sitting president. That’s not happening.)

This is another of those situations where a course of action might feel just and necessary in Trump’s case because he so richly deserves to face meaningful accountability. But taken out of the Trump context, pardon-proofing presents genuine practical and philosophical dilemmas. There’s still a healthy debate to be had about the necessity, fairness, and constitutional viability of the Fulton County DA’s charges. But the “pardon-proofing” point falls flat.

It’s become a common refrain that Trump cannot be above the law. That’s true, of course. But he shouldn’t be thrown beneath it.

Stay Informed,

Elie

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