Posted On Wednesday, November 25, 2015
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The President’s annual tradition of pardoning a turkey dates back to the 1870’s when turkeys became a regular gift to the White House for a holiday meal. While some sources erroneously trace the origin of turkey pardoning to President Truman, his presidential library denies the claim and the White House Historical Association instead reports that, in 1989, President George H. W. Bush was the first President to “officially” pardon a turkey. With the impending Thanksgiving holiday, and the final year of the Obama presidency approaching, we thought it would be appropriate to briefly examine Presidential pardon powers, albeit separate from turkeys per se.
Presidential pardon authority originates directly from the U.S. Constitution in Article II, Section 2: “The President…shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Beyond this broad power, there are federal rules and regulations governing presidential pardons as found in 28 CFR §§ 1.1 et seq., 28 C.F.R. §§ 0.35-0.36, and the Rules Governing Petitions for Executive Clemency. Federal regulations also empower the DOJ’s Office of the Pardon Attorney to assist the President in the exercise of executive clemency, a general phrase which includes pardon, commutation of sentence, remission of fine, remission of restitution, or reprieve. Requests for executive clemency begin with an application detailing the basis for the request which are submitted to the Office of Pardon Attorney. The office investigates the request and prepares a report and recommendation for the President’s consideration and final approval.
Contrary to popular belief, though, a pardon does not “undo” a conviction. As the Office of Pardon Attorney explains, a pardon is “an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.” The Office of Pardon Attorney notes that a pardon “does not signify innocence” but it does “remove civil disabilities” resulting from a conviction.
Additionally, there are several procedural hurdles to obtaining a presidential pardon or clemency. For example, naturally the President does not have authority to grant a pardon or clemency for a state conviction because the U.S. Constitution limits pardon power to “offenses against the United States.” Further, 28 C.F.R. §1.2 states that defendants are not eligible to file a petition for pardon until at least five years after release from prison or five years after the date of conviction if imprisonment is not imposed. Defendants seeking to have a sentence commuted must also exhaust all judicial or administrative remedies before filing a petition for commutation of sentence.
Posted On Tuesday, November 24, 2015
On October 22, 2015, the Securities and Exchange Commission (“SEC”) announced its enforcement results for Fiscal Year (“FY”) 2015. The agency filed 807 enforcement actions, including a record 507 independent actions for violations of federal securities law, and recovered approximately $4.18 billion in disgorgement and penalties. The number of independent enforcement actions represents a 22% increase over the number of such actions filed in FY 2014 (413) and a 49% increase over those filed in FY 2013 (341).
The agency has yet to release its Select SEC and Market Data, the report that will breakdown the quantity and types of enforcement actions pursued. However, the overview contained in the October 22 announcement provides some insight into the agency’s foci for the past year, and likely going forward.
Taking action against individuals – A theme throughout the overview is the SEC’s enforcement efforts against alleged individual wrongdoers. It touts its aggressive pursuit of insider traders and its actions against attorneys, accountants, and other “gatekeepers” for failing to comply with professional standards in advising clients. Indeed, in each category of enforcement action it highlights, the SEC notes actions brought against – and, in many instances, recovery from – individuals.
The overview’s focus on enforcement against individuals aligns with recent public statements from SEC officials. In May 2015 remarks, for example, Director of Enforcement, Andrew Ceresney, emphasized that companies attempting to cooperate with an SEC investigation were expected to share facts implicating individual wrongdoers, if such facts exist. Accordingly, it is clear that the SEC has joined the Department of Justice in shifting its investigative focus and enforcement efforts to hold individual – and not just corporate – wrongdoers responsible, and to require corporations seeking resolution to cooperate in those efforts.
Using data and analytics innovatively – Although it does not get into specifics, the SEC touts its cutting-edge use of data and analytics to spot suspicious practices and “crack” complex insider trading rings. The reference to data and analytics no doubt serves a signaling function to would-be insider traders: the agency is technologically fluent and equipped to investigate in the modern world.
Combating foreign corrupt practices – The SEC highlights its enforcement of the Foreign Corrupt Practices Act (“FCPA”), 15 U.S.C. § 78dd-1 et seq. In particular, it notes filing a “first-ever” FCPA action against a financial institution, which is also the “first-ever” case to allege hiring practices in violation of the statute. The SEC’s efforts to emphasize the innovative nature of its FCPA actions indicates that it will wield the statute aggressively, a message that the agency has also sent in its public statements throughout FY 2015.
Rewarding whistleblowers – The SEC awarded approximately $38 million through its whistleblower program in FY 2015. Eight whistleblowers received awards, with one earning $30 million, the largest payment made by the program to date. Because of that enormous award, the program paid far more to whistleblowers in FY 2015 than it has in any year since its inception in August 2011. The SEC’s report to Congress on the whistleblower program can be found here.
