THE TEXAS “PARDON” TWO-STEP, AND A SECOND TRUMP PRESIDENCY
By Joel Cohen
In July 2020, Garrett Foster, a white man and former mechanic in the U.S. Air Force, was involved in a Black Lives Matter protest in Austin Texas. Foster, notably, was carrying an AK-47-style rifle — after all, it’s Texas.
Daniel S. Perry, also white and, incidentally, an active-duty U.S. Army sergeant, was driving an Uber and drove towards the crowd of demonstrators that included Foster. The crowd approached Perry’s car. Perry opened fire, killing Foster.
A jury, having heard testimony about Perry’s racist online comments, and notwithstanding the claim of Perry’s lawyer that Foster, the shooting victim, had actually begun pointing his rifle potentially raising a claim of “self-defense” for Perry, nonetheless convicted the shooter, Perry. He was sentenced to 25 years in prison. (See “Texas D.A. Looks to Overturn Pardon of a Protester’s Killer,” Montgomery, D., NY Times, 6/5/24).
Last month, Governor Greg Abbott pardoned Perry. It was, yes, his undeniable and uncircumscribed right to issue that pardon — indeed, one that he, incidentally, made on the recommendation of the (purportedly) independent Texas Board of Pardons and Paroles.
Jose Garza, the Travis County district attorney who prosecuted Perry, however, now petitions a Texas state court to overturn the pardon. However terrible the injustice of the governor issuing the pardon for clearly political gain — the pleasing to conservatives “stand your ground” defense being the linchpin of Abbott’s action — the pardon power is constitutionally absolute. As is the pardon power in the federal system too!
There will be a similar terrible type of injustice too, one suspects, regarding unwarranted pardons if Trump is elected. There will likely be a boatload of pardons issued by him on behalf of some of his political cronies. And most troubling, he maintains that he will also pardon January 6 defendants whom he unabashedly calls “heroes” and “hostages”.
Moreover, Trump would be able to exercise the unbridled constitutional power to issue those pardons without a second thought. And as when he left office in January 2021, he will execute those pardons perhaps without the pardon applicants even having to go through the Justice Department procedure that institutionally makes clemency recommendations. It is, after all, simply a Justice Department “protocol” that he, as president, didn’t and won’t have to follow.
In total fairness though, lest it go unsaid, Bill Clinton also issued a whole series of truly questionable midnight pardons on his way out the White House door in January 2001. But then, again, both Trump and Clinton did have the “absolute” right to extend clemency — by way of pardons or sentence commutation — to literally any defendant, irrespective of the merits of such clemency grants.
The only possible exception might be if a president is bribed in exchange for a clemency — although that issue that has never been litigated. (Clinton, parenthetically, was actually under criminal investigation for having granted a pardon to Marc Rich, ostensibly in exchange for Rich’s former wife having contributed to the Clinton Library, although no corruption charges were brought). There is nothing to suggest corruption relating to the Perry pardon.
Now, in the case of a “presidential” pardon for a federal crime, the only thing that can be done in order for justice to ultimately prevail in the face of seemingly unjust pardon — as seems to have been the case in Perry — would be for a state prosecutor to bring a state charge against the defendant who has been pardoned for the same conduct.
However, the state where the crime occurred may have a double jeopardy statute or constitutional provision on the books that would outright preclude a “second bite at the apple.” So, for example, after President Trump pardoned his political advisor Paul Manafort for tax crimes and the New York County District Attorney indicted him for essentially the same offenses on state charges, the New York state courts held that its “double jeopardy” statute prevented such a prosecution (People v. Manafort, N.Y. Court of Appeals, 2/4/21). So, the same double jeopardy protection may occur when and if a President Trump issues some of his anticipated pardons, depending on the state where the offense occurred. Notably, it is unlikely that state prosecutors will be able to bring state prosecutions for most January 6th conduct if there are presidential pardons doe those defendants, inasmuch as virtually all of the conduct occurred in DC.
Returning to Perry, perhaps the only way for justice to prevail would be for the U.S. Justice Department to institute a “civil rights” statute prosecution against Perry based on the same conduct (Title 18 U.S.C., 242). The reason? Long ago, the Supreme Court held that double jeopardy protection under the Constitution does not lie for a defendant if a federal prosecution is subsequently brought for conduct that was initially prosecuted by a state and resulted in a dismissal, acquittal or pardon. United States v. Lanza, 260 U.S. 377 (1922).
Here, though, is the real problem in the Perry matter. Even if the Biden Justice Department were to indict Perry tomorrow (a circumstance that is actually unimaginable, given the exceptionally long review process implicated requiring approval of the Assistant Attorney General), the case simply won’t reach trial before Inauguration Day, January 20, 2025.
However, even if an indictment is brought before January 20, 2025, if Trump is elected the case will simply die. Trump will either outright pardon Perry (which is his absolute right), or he will insist that his Justice Department move to dismiss the case. That’s just the way it is. Indeed, Trump has made clear his eminent willingness to use both the president’s pardon power (viz., Manafort, Kushner, etc.) or U.S. Justice Department prosecutorial discretion (viz., Michael Flynn), or both, to pursue his political agenda. And making Republican Governor Abbot and his constituency pleased that Abbott’s wishes are carried out by a President Trump presidency fits very neatly into what Trump will likely try to accomplish as it relates to criminal justice if he is elected.
This article isn’t intended to suggest that the pardon power of the president or a governor should be circumscribed. Indeed, that might only occur anyway through a very hard-to-obtain constitutional amendment. It’s just intended to present reality. The ability to obtain a “second bite at the apple” through a federal prosecution of a defendant in the face of his state acquittal, dismissal or pardon is and should be rare. That is, as long as there was no “foul play” (for lack of a better word) resulting in the state case having come to an end).
But when a president or governor of whatever party or stripe uses the pardon power for blatantly political purposes the public in general needs to take a closer look at the precedent being set and call him or her out on it.
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Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law as senior counsel at Petrillo Klein & Boxer. He is the author of “Blindfolds Off: Judges on How They Decide” (ABA Publishing, 2014) and an adjunct professor at both Fordham and Cardozo Law Schools.
