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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a happy Friday after yet another eventful week. This week's column actually started as a sort of casual, did you ever think about kind of conversation with a former colleague who I really respected.
And then it got me thinking about writing this as a think piece. Could we see this issue from both ways? And I think by the end, I've probably gone over to the other side from where I started on, not by much, but just barely. So interested to hear what you think as always, please send me your thoughts, questions, or comments to letters at cafe.com. Thank you.
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, and he 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 the state or local government 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 the 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 especially 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 probationary sentence. Longo had donated to various Christie campaigns, but only relatively small peanuts totaling a bit over $1,500. $1,500.
He had his photo taken with Christie a few times, and he proudly posted those photos on his social media, 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. We don't know.
When the pardon hit, I didn't feel much, maybe a mild sense of surprise. Huh, that case? It didn't devastate me, nor did it strike me as a horrific injustice. We worked hard on the case, and we thought the resolution 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 did not consider at the time, but I do wonder about now,
Is it rightly the prosecutor's role to worry about pardons at all? Should prosecutors try to anticipate potential pardons or react to actual pardons to get around them or to blunt their impact? Do prosecutors have any business pardon-proofing their cases?
I'm sure you're already two steps ahead of me. I raised the question here, of course, because of the ongoing spate of prosecutions of Donald Trump. This week, Fulton County District Attorney Fannie Willis indicted Trump for interfering with the 2020 election in Georgia. Why, some wondered aloud, including me in this podcast and elsewhere, why 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 retakes the presidency, but he cannot 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-barreled 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 Mark 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 any of 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, Georgia has a pardon board.
Prosecutors serve within the same executive branches over which these 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 and arrogance of sorts even? And I can say that as a former prosecutor. 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 the governor? If the Constitution meant for prosecutors to have influence over pardons, it could and would have said so.
Now, relatedly, and I think more problematically, how exactly 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, for example, when New York state prosecutors charged Bannon after his federal pardon on fraud charges disclosure. I sure did.
On reflection, is it really fair to pick out one especially obnoxious fraudster for postpartum prosecution when other pardon recipients who've 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 overlap 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' state-level case and Bragg's New York hush money case untouched.
But what are we really left with then in that scenario? 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 simply 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 is still a healthy debate to be had, no doubt, 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 also shouldn't be thrown beneath it. Thanks for listening, everyone. Stay safe and stay informed.
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