In comments, NYCMT wrote the following: “You know what might survive a presidential pardon? A civil asset forfeiture claim.” I have now talked to him in depth about what this meant.
The federal government has a lot of power to seize property involved in the commission of a crime. 18 USC 981 (a)(1)(A) states “The following property is subject to forfeiture to the United States: any property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property.” Sections 1956 and 1957 deal with money-laundering, tax fraud, and dealing in assets that are the result of crimes.
The key is that civil forfeiture is undertaken against property, not an individual! You can pardon a person from a criminal act but you cannot pardon their property against a civil judgment. Moreover, forfeitures are undertaken under a preponderance-of-the-evidence standard. Since a pardon would essentially admit as true all of the facts of the criminal charges involving the property, a civil asset forfeiture proceeding would be a slam dunk for a federal prosecutor.
NYMCT laid out the following hypothetical. On the last day of the Trump presidency, right before the Senate takes its vote on the articles of impeachment reported out of the House, Donald Trump signs several hundred pardons, not least for himself, but also for his associates in the Trump Organization, his counterparties in a number of different transactions, and the principles of all financial firms whom may have been involved in any of his financial transactions. The pardons cover not only any financial crimes but all violations of the various sedition, conspiracy, and obstruction of justice statutes.
Well, if the pardons specify all illegal conduct against the United States then they become open ended gateways to factual stipulations in later court proceedings. If one single transaction involves the Trump Organization, even as an intermediary, then you have trouble. I dunno, imagine a purchaser of first resort for a condominium in Trump Tower funded through a secured credit facility that relies on underlying assets like Trump Tower or Trump Village in Coney Island. If that credit facility was repaid with money traceable directly to the proceeds of crime, then it satisfies the materiality requirements under 18 USC 981(a)(1) and the feds can seize the securing assets.
This does not mean that President Trump is going to lose his stuff! I have no idea what crimes, if any, have been committed. What it does mean is that if Mueller uncovers financial chicanery, then President Trump cannot pardon himself out of trouble. (Assuming, that is, that the courts interpret the pardon power as allowing the president to pardon himself.) In addition to potential state prosecutions, he would run the risk of losing many of the things that really matter to him.
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