The broad language in President Trump's pardons for dozens of allies who helped challenge his 2020 presidential election loss could hand unexpected beneficiaries a blank check.
The president granted unconditional pardons to more than 70 lawyers, aides and so-called "fake electors" for efforts to provide an alternate slate of Electoral College votes in his favor and other conduct focused on exposing purported voter fraud.
But the pardon's language itself is vague, promising the same clemency to "all U.S. citizens" who participated in "any conduct" aimed at exposing fraud or vulnerabilities in the 2020 race. Those pardoned are not limited to the names listed, it says.
It could prompt challenges from unexpected Trump backers who want a piece of the action after facing legal troubles for their defense of the president, from former Trump administration officials to the Oath Keepers and Proud Boys not pardoned alongside other Jan. 6 rioters.
Though presidential pardons are understood only to apply to federal offenses, allies convicted of state offenses might also try their luck.
Anthony Michael Kreis, a law professor at Georgia State University who has closely followed the 2020 election subversion case there, said it's his view that the pardon is both "wide-sweeping and open-ended."
"I cannot imagine any conduct that anyone engaged in related to the 2020 election on behalf of the Trump campaign that is already public, which might fall outside the ambit of the pardon," he said.
Trump's pardon Monday explicitly applies to dozens of high-profile allies, from former White House chief of staff Mark Meadows and longtime ally Rudy Giuliani to lawyers Sidney Powell, Kenneth Chesebro, Jeffrey Clark, John Eastman and Boris Epshteyn.
We've got some questions about who else it could cover.
Could White House adviser Peter Navarro or ex-adviser Steve Bannon contend that they're covered, because they evaded congressional subpoenas from the now-disbanded Jan. 6 committee, which was probing the riot that was the culmination of 2020 election subversion efforts?
In fact, could the few Jan. 6 defendants not pardoned by Trump — like Oath Keepers founder Stewart Rhodes and other extremist group leaders — make the case that their actions that day amounted to "efforts to expose voting fraud and vulnerabilities in the 2020 Presidential Election," as excused by the pardon?
Barbara McQuade, a former U.S. attorney, said it "could be read that way."
"The way this would play out would be that if anyone were charged with a crime relating to the fake electors scheme could claim that they were covered by this pardon language," she said. "Because of the broad language, they probably would prevail."
McQuade pointed to U.S. Pardon Attorney Ed Martin's post to X proclaiming "No MAGA left behind," that preceded the pardon announcement, contending it suggests "improper favoritism" for Trump supporters.
Kreis said he doesn't see a "meaningful limit" that would keep people from claiming they have been pardoned for their attempts to undermine the election results. But that doesn't mean they will succeed.
"The pardon surely does not cover activities that were violent criminal acts, but its ambit more squarely removes criminal liability for participating in a conspiracy to deprive rights or other similar voting rights crimes," he said, noting that the pardons are generally symbolic because the five-year statute of limitations for most federal laws has passed.
"The lack of clarity is not going to have many practical implications, if any," he added.
Still, Trump's open-ended pardons have been a slippery slope before.
When the president pardoned nearly all Jan. 6 defendants, several rioters made the case that other offenses should be covered by the clemency, sometimes with the backing of the Justice Department — and sometimes, with success.
However, judges and federal prosecutors drew a line in several instances, as well.
Prosecutors opposed at least three rioters' efforts to toss seemingly unrelated charges: Edward Kelley, later convicted of conspiring to kill the federal agents who investigated him; David Daniel, who faces child pornography charges; and Taylor Taranto, later convicted of illegally possessing two firearms and roughly 500 rounds of ammunition outside of President Obama's Washington home and making a hoax bomb threat to a government building.
So far, we've only considered the ramifications for federal defendants who challenged Trump's election loss. But it's not a stretch of the imagination to think that state defendants might try their hand at applying the pardon to their cases, as well.
Pause: Don't presidential pardons only apply to federal offenses? Well, yes.
Even the Office of the Pardon Attorney affirms on its website that presidents do not have authority to grant clemency for state convictions, answering the question on its FAQ page with a cut-and-dry "no" before explaining that "an offense that violates a state law is not an offense against the United States."
But efforts are already underway to portray the state cases against Trump's allies and "fake electors" in Georgia, Arizona, Michigan, Wisconsin and Nevada as underpinned by federal issues.
Cleta Mitchell, a Trump-aligned lawyer who assisted with efforts to overturn the 2020 election, claimed on X Monday that the patchwork battleground state prosecutions were orchestrated by the Biden administration, making them matters of federal law.
"The Biden Regime concocted a plan for partisan Dem AGs...to take over from the Biden DOJ to fabricate 'state' charges," she wrote. "MAKE NO MISTAKE! These 'state prosecutions' were all developed, orchestrated & controlled by the Biden Regime."
We're not aware of any evidence supporting such a claim. But that doesn't mean defendants in the cases moving forward won't make those arguments to a judge.
The attorneys general prosecuting the cases or their offices each told The Gavel this week that Trump's pardons won't affect their cases or decision-making, with some emphasizing that federal pardons do not apply to state charges alleging violations of state law.
Pete Skandalakis, executive director of the Prosecuting Attorneys' Council of Georgia (PAC), which was assigned to pick a new prosecutor after Fulton County District Attorney Fani Willis's (D) office was disqualified, also said the task before his office "remains unchanged."
A Georgia judge gave PAC until Friday to pick a new prosecutor or potentially see the case dismissed. Skandalakis said his staff have worked "diligently" since Willis got the boot — though a spokesperson said a prosecutor was not assigned to the case as of Monday.
Still, the Trump administration may already be planning to test the bounds of the president's pardon powers.
For months, conservatives including Rep. Marjorie Taylor Greene (R-Ga.) have called for a pardon for former Mesa County, Colo., clerk Tina Peters, who was the first local official convicted over 2020 election subversion efforts.
Peters's conviction was on state charges, meaning that only Colorado's Democratic governor has the power to grant her a pardon.
However, Martin, the pardon attorney, seems to be leaving the door open.
Late Sunday night, an X user asked him, "Where is Tina Peters?!?!?" on the list of those pardoned over 2020 election conduct.
"We are working on it!" Martin replied.
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