Trump-era pardon recipients are increasingly back in legal jeopardy

Some experts connect the phenomenon to Trump's unorthodox approach to clemency.

December 22, 2022, 5:13 AM

In February, former newspaper executive Kenneth Kurson pleaded guilty to cyberstalking his ex-wife. Months later, rapper Kodak Black was arrested on felony drug charges in Florida before pleading not guilty. And in October, jurors found political operative Jesse Benton guilty of illegally funneling Russian money into a group aligned with former President Donald Trump.

The trio's circumstances may seem unrelated, but they share one notable link: All were previously granted clemency by Trump while he was in office.

And the list doesn't end there.

An ABC News analysis of the 238 people who were pardoned or had their sentences commuted during the Trump administration found at least ten who have since faced legal scrutiny -- either because they are under investigation, are charged with a crime, or are already convicted.

Legal experts call this recurring theme unprecedented -- but not entirely unexpected, given the former president's unorthodox approach to the pardon process.

"President Trump bypassed the formal and orderly Justice Department process in favor of an informal and fairly chaotic White House operation, relying in some cases on his personal views and in others on recommendations from people he knew or who gained access to him in various ways," said Margaret Love, a lawyer who represents clients seeking pardons and a former U.S. Pardon Attorney, a Justice Department appointee who helps advise presidents on grants of clemency.

"So it might have been predicted," said Love, "that some who made it through that lax gauntlet were going to get in trouble again."

PHOTO: FILE - U.S. President Donald Trump signs H.R. 3151, the Taxpayer First Act, during a ceremony in the Oval Office of the White House in Washington, D.C., July 1, 2019.
U.S. President Donald Trump signs H.R. 3151, the Taxpayer First Act, during a ceremony in the Oval Office of the White House in Washington, D.C., July 1, 2019.
Bloomberg via Getty Images, FILE

Friends and allies

Those pardoned by Trump during his term in office included dozens of friends and political allies. The list included celebrities, lawmakers and former aides who had been convicted of crimes ranging from fraud to murder -- including four private military contractors who were in prison for murdering 17 Iraqi citizens, including two children, in a 2007 attack in Baghdad.

An analysis by two Ivy League academics determined that just 25 of those 238 pardons went through the Office of the Pardon Attorney, a small enclave within the Justice Department that fields clemency applications and examines the merits of each case before deciding whether to recommend a convict for presidential action. The researchers said that figure represented "an historic low."

"The process is supposed to be fair, it's supposed to be careful, it's supposed to be accurate ... and it's also supposed to be a process that helps predict who is not going to recidivate," said Larry Kupers, who served as the Acting U.S. Pardon Attorney for 18 months at the beginning of the Trump administration.

Recidivism rates from previous administrations' clemencies is opaque, as federal agencies don't keep tabs on clemency grantees after their release. But in one study reviewing former President Barack Obama's 2014 clemency initiative, which led to sentence commutations for nearly 1,700 federal drug offenders, the independent and bipartisan U.S. Sentencing Commission found only three who had been rearrested by the end of 2017. A Texas woman was rearrested on theft charges less than a year after earning an Obama commutation on her life sentence in 2016, and another Texan pleaded guilty to drug charges less than two years after earning a life sentence commutation under Obama's 2014 clemency initiative.

Based on news accounts and other available evidence, the number of clemency grantees who have gone on to commit additional crimes remains "incredibly low," Kupers said.

For Trump-era pardons, however, experts said the numbers seem disproportionately high.

PHOTO: FILE - Former White House senior strategist Stephen Bannon leaves the Federal District Court House after being found guilty of being in contempt of Congress, July 22, 2022 in Washington, DC.
Former White House senior strategist Stephen Bannon leaves the Federal District Court House after being found guilty of being in contempt of Congress, July 22, 2022 in Washington, DC.
Tasos Katopodis/Getty Images, FILE

Trump's inner circle

Chief among those pardoned is Steve Bannon, a former senior White House aide and one of Trump's highest-profile political allies.

Bannon was found guilty in July of contempt of Congress for his refusal to testify before the House committee investigating the Jan. 6 Capitol attack, and was sentenced to four months in prison. He also faces charges in New York State for allegedly defrauding donors to the "We Build the Wall" fundraising campaign -- the same allegations for which he faced federal charges before Trump intervened with a presidential pardon. Bannon has pleaded not guilty to the state charges.

Two other notable members of Trump's inner circle, veteran political operative Roger Stone and Trump's first national security adviser, Michael Flynn, are also involved in ongoing investigations. Both were prosecuted by former special counsel Robert Mueller -- Stone for lying to Congress, Flynn for lying to federal investigators -- and were later pardoned by Trump.

A federal appellate judge recently ordered that Flynn must provide testimony to an Atlanta-area district attorney who called Flynn a "necessary and material witness" to Trump's efforts to overturn the 2020 presidential election, and Justice Department prosecutors investigating the events of Jan. 6 are reportedly examining Stone's alleged ties to violent extremists who attacked the Capitol.

Mark Osler, a professor at St. Thomas University Law School and an expert on presidential clemency, said many of the Trump-era clemency recipients -- particularly those who were prosecuted for crimes they committed while working for Trump, like Stone, Bannon, and Flynn -- "were people who thought they were above the law already."

"And Trump, by giving them a pardon after they'd been charged or convicted of a crime, only enhanced that sense of entitlement," Osler said.

U.S. presidents have, in the past, go to lengths to avoid the appearance of political patronage tainting the clemency process. George W. Bush went so far as to revoke a pardon one day after granting it, after it came to light that the grantee's father had donated almost $30,000 to the Republican Party just months earlier.

Some experts ABC News spoke with noted the irony of Trump's clemency practices, considering his repeated claims to support law and order. "If the Democratic Party wants to stand with anarchists, agitators, rioters, looters, and flag-burners, that is up to them, but I, as your president, will not be a part of it," Trump told attendees at the 2020 Republic National Convention. "We must always have law and order."

Trump has also suggested that he would look "favorably" at pardons for those convicted for their participation in the Jan. 6 attack on the U.S. Capitol, if reelected to the White House in 2024.

'A slapdash approach'

Another notable Trump-era clemency recipient who has since fallen back into legal jeopardy is former Detroit Mayor Kwame Kilpatrick, whose fraud sentence was cut 20 years short by a commutation -- but who reportedly remains under federal investigation for unpaid restitution tied to the public corruption charges that in 2013 landed him in prison. A lawyer who has represented Kilpatrick said that outstanding restitution payments for ex-convicts are common, but acknowledged that failure to repay them could leave Kilpatrick in legal jeopardy.

And Jonathan Braun, whose ten-year drug smuggling sentence was cut nine years short by a Trump commutation, is facing lawsuits from the Federal Trade Commission and the New York attorney general's office for allegedly running a predatory loan scheme targeting small businesses.

Braun "harassed, insulted, swore at, and threatened" his debtors, according to a June 2020 petition filed by the New York attorney general. He allegedly told one small business owner, "I will take your daughters from you," and told another: "I am going to make you bleed." In court, Braun has denied these claims and requested a trial.

The lawsuits predate Braun's sentence commutation, but that he still managed to secure a commutation from Trump in spite of the active suits "shows what happens when you ignore the formal process in favor of a slapdash approach," said Osler, the presidential clemency expert.

"A trained staff of analysts who specialize in sniffing out facts like this was sidelined, with predictable results," Osler said.

Some who have faced legal scrutiny since securing clemency have accused prosecutors of pursuing vendettas against Trump. After learning of the charges filed against him by New York state prosecutors, Bannon said, "This is nothing more than a partisan political weaponization of the criminal justice system."

And in August, after federal prosecutors suggested they would seek to re-try Philip Esformes, a Florida-based nursing home business owner, on six hung counts from his 2019 trial after his 20-year fraud sentence was commuted by Trump, a member of Esformes' legal team said the Justice Department's "flagrant disregard of President Trump's clemency order is motivated by acrimony towards him."

Prosecutors in Manhattan also attempted to target former Trump campaign chief Paul Manafort on state mortgage fraud charges after he was convicted in 2019 on similar federal charges -- a move widely seen as a means to ensure Manafort would face justice even in the event that Trump pardoned him for the federal offenses. Manafort was indeed pardoned by Trump in December 2020 -- and in 2021 a New York appeals court ruled that the state charges should be tossed, citing the state's double jeopardy rule.

Meanwhile, the U.S. Pardon Attorney's office says more than 17,000 applicants for clemency remain pending. And while experts agree that the clemency process is in desperate need of an overhaul -- many suggest removing it from the Justice Department's bureaucracy and into its own office -- there remains widespread support for the institution and its principles.

Osler said he's concerned that Trump's approach to clemency and the subsequent legal travails for some beneficiaries could cause lasting harm to the process.

"It could sour clemency for people who really, deeply, richly deserve it," Osler said.

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