The Quality of Mercy is in Fact Very Strained (in the Epstein Case)
A Trump pardon for Maxwell may not be the end of her problems.
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There are a lot of things about Trump 2.0 that are very different from the first time around…but there are also other things that give me deja vu. One of those things is the possibility of Trump pardoning convicted sex trafficker Ghislaine Maxwell. We know that Trump is generally trigger happy when it comes to pardons. And although Trump hasn’t said he would pardon Maxwell, he hasn’t said he wouldn’t either, noting that “[he’s] allowed to give her a pardon.” Which means…he’s thinking about it. After all, Trump was initially noncommittal about pardoning Michael Flynn and Roger Stone, and then ultimately went on to pardon them, too. (To be fair, he was always very upfront that he would pardon everyone involved in January 6.) But the potential pardon for Maxwell is giving me flashbacks to someone very specific: Paul Manafort.
First, let me offer my quick behavioral profile regarding Trump and pardons. I know most people consider Trump “shameless” – and his behavior certainly seems that way – but I wonder if there is some deep, dark corner of his brain where he knows, even if he doesn’t feel it, that he is guilty of doing something wrong. The pardon power is a powerful psychological salve for Trump: Although he has not yet crossed the Rubicon of issuing himself a “self-pardon” (something he no longer needs to do for most things, after the Supreme Court’s immunity decision), the pardon power allows him to basically grant himself a “self pardon by proxy,” as I like to call it. As I have detailed in previous articles and in my Substack, in his first term, Trump typically pardoned people for crimes he was either accused of or actually committed himself: “process” crimes like obstruction of justice or false statements; financial crimes (like bank and tax fraud); and election related crimes, like illegal campaign contributions. Seriously, Google it.
Trump’s weird and changing excuses about the Epstein files suggests he has some worry, or even guilt (loosely speaking), about something related to Epstein’s activities – which means that pardoning Maxwell, and making her (and by extension, himself) into a “victim” would very much be in line with his typical modus operandi. And the way he has gone about teasing that possibility – from saying he’s “allowed” to do it to sending his former personal attorney/current Deputy Attorney General (not sure of the difference), Todd Blanche to interview Maxwell to expose the “real” culprits – is very familiar to a tactic from Trump 1.0, as well. Specifically, during the Mueller investigation, Trump was very fond of “dangling” pardons to people like Manafort, whom Mueller had already ensnared, to keep them from snitching. And it worked.
But the Paul Manafort example, in particular, has some other parallels that Trump may not have considered. If you need a recap, Manafort was charged and convicted in federal court in Virginia on two counts of bank fraud, five counts of tax fraud, and one count of failing to disclose an offshore bank account. Later, he pleaded guilty in D.C. to illegal lobbying and witness tampering, an agreement that included his willingness to cooperate with federal prosecutors. The prospect of Manafort cooperating appears to have triggered Trump, which led to the dangled pardons (acts later included among the ten counts of obstruction of justice that Mueller investigated against Trump himself).
The prospect of Trump pardoning Manafort led to discussions about whether the state of New York, where Manafort had committed many of his crimes, could prosecute him if Trump let him off the hook. This is permitted under the “dual sovereignty doctrine,” established by the Supreme Court in 1959, which considers states and the federal government as separate “sovereigns” vindicating different interests. As a result, prosecuting someone for both a state and federal crime arising out of the same conduct does not violate the double jeopardy clause of the Fifth Amendment. Mueller was reportedly sharing his information and evidence with the New York Attorney General’s office, which seemed like he was trying to put such a backstop in place.
At the time, though, there were two potential roadblocks. One was that the Supreme Court was poised to hear a case called Gamble v. United States, which squarely challenged the dual sovereignty doctrine. If the Supreme Court overturned its own precedent, it would cut a state prosecution off at the pass. More importantly, the state of New York had passed an additional protection, precisely to avoid dual federal and state prosecutions: New York law said that if someone was charged by the feds and either pleaded guilty or reached a point in the proceedings where a jury was sworn in, then double jeopardy attached and the state of New York could not prosecute that person. (Remember that the Constitution is a floor, not a ceiling, and states can always provide individuals with more protection than the Constitution provides, just not less). Presumably, the New York legislature had not considered the prospect of someone being pardoned for the federal crime, and the state then having its hands tied.
Here’s the good news, on both fronts. First, in 2019, the Supreme Court upheld 7-2 the dual sovereignty doctrine in Gamble. (You may be surprised to know that Justice Alito wrote the opinion, with Justice Thomas writing a concurrence; Justices Ginsberg and Gorsuch dissented.) More importantly, later that year Governor Andrew Cuomo signed a law closing New York’s “pardon” loophole. The law still prohibits the state from prosecuting someone for a crime arising out of the same conduct that has already been charged by the federal government, except when that person has received a presidential pardon for the same, or substantially similar, crimes. (New York is good about balancing defendants’ rights with closing unfair escape routes: In 2011, it also closed the “Helmsley” loophole, which Leona Helmsley had used to avoid being prosecuted on state tax evasion after being charged with federal tax evasion, by exempting tax crimes from the state’s double jeopardy law.)
Unfortunately, New York’s legal reform was too late to apply to Manafort. Because he had already been convicted and pleaded guilty, he benefited from the original “loophole” the state’s law provided, and so was able to walk free after Trump pardoned him. But Ghislaine Maxwell wasn’t tried until November 2021, well after New York closed the pardon loophole. That means she is totally fair game for the Manhattan DA’s office, which would have jurisdiction over these types of crimes. Her sex trafficking and other acts undoubtedly violate New York state law (just as Epstein’s violated Florida’s, in 2006). The federal government may be unwilling to share evidence or cooperate in this situation, but New York can still start with the survivors and go from there. The key here would be to remind Maxwell, and Trump, that the federal government isn’t the only game in town – states’ rights, amirite? Oh, and no sweetheart deals this time around.
Alvin Bragg, if you’re listening…
Asha,
I joined the bar in Jan 1985 ( I was the litigation department in a small firm with business clients).
Superb analysis. This tracks with me and more importantly tracks with the law, facts and circumstance.
My guess is that Mr. Bragg will hear whispers in his ears about your article.
Well done.
Proud to subscribe.
While a potential NY prosecution may no longer be limited by double jeopardy, might it not be limited by the statute of limitations? It’s been a while since Maxwell”s offenses were committed; I don’t know what the New York statute of limitations would be on those offenses or even if there is one, but that possibility should be addressed in considering the viability of a federal pardon.