On August 21, 2018, former Donald Trump attorney Michael Cohen pleaded guilty to multiple criminal counts, including campaign finance fraud. During his plea hearing, Cohen implicated the President in the crime, saying that Cohen had paid Stormy Daniels (a) at Trump’s direction, and (b) with the purpose to influence the presidential election.
Speculation immediately ran wild about the possibility of President Trump pardoning Cohen. On the one hand, it seemed possible because Cohen may know much more than he’s already disclosed to prosecutors during the investigation and because the plea deal did not contain an explicit cooperation deal. (As I’ve written here and here, it seems awfully likely that Cohen is cooperating and getting a deal.)
On the other hand, it seemed unlikely that Trump would pardon Cohen if Cohen had decided to cooperate with the government against him. He’s not exactly the forgiving type. See, e.g., the “failing New York Times,” “Crooked Hillary.”
On August 22, 2018, Cohen’s lawyer, Lanny Davis, was quoted by NPR as saying:
I know that Mr. Cohen would never accept a pardon from a man that he considers to be both corrupt and a dangerous person in the oval office. And [Cohen] has flatly authorized me to say under no circumstances would he accept a pardon from Mr. Trump, who uses the pardon power in a way that no president in American history has ever used a pardon — to relieve people of guilt who committed crimes, who are political cronies of his.
I was talking with a fellow white-collar lawyer the day Davis’ quotes were publicized. Neither of us had ever heard of a situation where someone would reject a pardon.
Could that happen? More important, would it happen?
First things first, yes, you can refuse to accept a pardon.
Why? Because The Supreme Court Says So
In United States v. Wilson, 32 U.S. 150, 160-61 (1833), the defendant pleaded guilty to robbing the mail. It was punishable by death because he’d placed the mail carrier at risk of death. However, President Andrew Jackson pardoned him. At a court hearing, Wilson said he didn’t want to avail himself of the pardon.
What was the court to do?
Chief Justice Marshall wrote:
A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.
But, Justice Marshall reasoned, a pardon is “the private, though official, act of the executive magistrate” and it is “not communicated officially to the court.”
The judge does not know about the private act until it is offered to him. And it would “subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages,” if the court could act upon events that were not part of the judicial proceeding.
In the end, then
This court is of opinion, that the pardon in the proceedings mentioned, not having been brought judicially before the court, by plea, motion or otherwise, cannot be noticed by the judges.
So, the answer is yes, Michael Cohen can refuse to offer the pardon to the district court judge who will eventually sentence him. If he chooses not to do so, then the district court judge has no choice but to sentence Cohen as she would any other defendant.
But Will Cohen Refuse a Pardon?
This, I think, is a tougher question.
No matter how I feel about President Trump (and I feel many things, trust me), I cannot imagine a situation where I’d advise a client to reject a pardon.
A pardon is the ultimate get-out-of-jail-free card. It’s the ultimate victory. You don’t need the prosecutor to agree or the Department of Justice to grant immunity. Your client is, quite simply free. That’s the goal of every defense counsel.
I can imagine a situation where a client is certain that the ultimate sentence will not be very long and where the professional ramifications of accepting a pardon (from, say, a politically toxic president) are not worth avoiding that sentence. That would be the client’s choice. My legal advice may still be to accept the pardon and nullify the conviction and avoid jail time—but, like so much of my advice, it may be ignored.
A Pardon Doesn’t Fix Everything
It’s worth noting that a pardon doesn’t clear a person of every ramification. In fact, as a lawyer, Cohen may still face sanctions from the bar.
In In re Abrams, 689 A.2d 6, 6 (D.C. 1997), the D.C. Court of Appeals considered the case of Elliott Abrams. Abrams was the former Assistant Secretary of State for Inter-American Affairs. He was accused of “dishonesty, deceit or misrepresentation” by giving false but unsworn testimony to three Congressional committees in the Iran-Contra Affair.
President Bush (the first) pardoned Abrams. He then argued that his suspension from the bar for one year should be reversed because the underlying misconduct had been pardoned.
The Court of Appeals disagreed. It concluded:
[W]e now hold, in conformity with the virtually unanimous weight of authority, that although the presidential pardon set aside Abrams’ convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did. “Whatever the theory of the law may be as to the effect of a pardon, it cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.” State v. Hawkins, 44 Ohio St. 98, 5 N.E. 228, 237 (1886). Specifically, the pardon “did not efface the … want of professional honesty involved in the crime.” People v. Gilmore, 214 Ill. 569, 73 N.E. 737, 737 (1905).
In the end, the Court of Appeals decided that Abrams should be publicly censured and not suspended. The pardon had some effect—just not the complete abrogation of sanction that Abrams desired.
Even if Michael Cohen were to accept the pardon (and the political and professional ramifications that could go along with it), he may still lose his bar card—or he may simply be censured.
Either way, that’s a better outcome than going to jail.