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September 11, 2022

Should pardon enable pharmacist convicted of federal fraud to claw back restitution already paid?

A helpful reader made sure I did not miss this interesting news story from Georgia regarding the uncertain aftermath of a presidential pardon.  The piece is headlined, "Trump pardoned him; now Ga. man sues state, insurer for half-million," and here are in the details:

In his final days in the White House, then-President Donald Trump pardoned dozens of people, including former Augusta pharmacist John Duncan Fordham who was convicted of defrauding the state of Georgia and ordered to pay $1 million in restitution.

Fordham spent four years in prison after his 2005 health care fraud conviction, and his assets were seized and liquidated to help make whole the state and a private insurance company he had defrauded. At the time of his January 2021 pardon, Fordham had made good on $531,000 in restitution payments.

And while the pardon erased the nearly half million he and company still owed, that wasn’t good enough for Fordham. On Thursday, he took the unusual step of suing the state and the insurance company to pay him the hundreds of thousands he had already paid in restitution, claiming that Trump’s pardon had entitled him to recover the funds — plus interest.

“I’m not sure that I’ve heard of a case of reimbursement,” said Michigan State University law professor Brian Kalt, an expert on presidential pardons.

Fordham was convicted of taking part in a fraud scheme in which former state Rep. Robin Williams, R-Augusta, steered a lucrative contract with the East Georgia Community Mental Health Center to Fordham, in exchange for generous kick backs to the former lawmaker. Williams was also convicted and sentenced to federal prison....

In addition to the nearly $500,000 that were seized following his conviction, Fordham had continued to make monthly payments totaling $46,000 until Trump’s pardon, the complaint says. He paid roughly $259,000 to the Georgia Department of Administrative Services, an agency that provides financial services to state and local government entities and a defendant in Fordham’s suit. Fordham paid Great American Insurance Company, the other defendant in his suit, $272,000 in restitution, records show.

Kalt said that the presidential pardon cleared Fordham of responsibility to continue to pay restitution, but it seems unlikely that a federal court will agree that the pardon entitles him to claw back payments he had already made. “It’s unclear, but it seems doubtful to me that he’ll be able to get the money back,” Kalt said.

I understand Professor Kalt's first instinct that this pardoned individual should not be able to get back restitution already paid; after all, this individual cannot "get back" the four years he already served in prison.  But, of course, money can be returned whereas time cannot.  And, if one concludes that the pardon here serves to wipe out the remaining restitution owed that had not yet been paid, I am not sure why logic does not suggest that the pardon also serves to wipe out the already paid restitution.

Notably, Prez Trump's grant of clemency provided for a "full and unconditional pardon" for Fordham's conviction and it mentioned the entire full restitution amount that was part of the sentence imposed.  I find myself somewhat drawn to the notion that the law should aspire to give as much effect to a clemency grant as possible, including enabling Fordham to claw back even restitution already paid.  But perhaps we ought to view clemency as a classic example of equity over law, and so perhaps we best achieve equity by wiping out only future restitution still owed without returning restitution already paid.

September 11, 2022 at 04:49 PM | Permalink


"But perhaps we ought to view clemency as a classic example of equity over law..."

This strikes me as correct except in the case where the pardon is based on a finding of actual innocence.

Posted by: Bill Otis | Sep 11, 2022 7:34:51 PM

My understanding is that a Presidential Pardon wipes away the criminal conviction as though it had never happened, a waving of a kind of Magic Wand almost. This pharmacist's claim for the return of $541,000 of restitution already paid seems particularly strong because the Pardon itself mentions the entire restitution amount included in the conviction. Another place I have seen a perverse argument being made like this one concerns a D.C. attorney, William A. Borders, Jr., who had been disbarred based upon a felony conviction. He also received a Presidential Pardon, which led him to write the D.C. Bar Association and demand that they reinstate his law license, since the conviction had disappeared as though it never existed. But the D.C. Court of Appeals refused. See also, In re: Elliot Abrams, 662 A.2d 867 (D.C. 1995), rehearing En Banc granted, 674 A.2d 499 (D.C. 1996) (En Banc), No. 91-BG-1518 (D.C. Feb. 5, 1997)(imposing a Public Reprimand but refusing Disbarment). Abrams had been pardoned by President Georgia H. W. Bush.

Posted by: Jim Gormley | Sep 11, 2022 11:06:29 PM

Re: disbarment, my understanding is that lawyers are supposed to demonstrate fit character. I could easily see a state bar (or D.C. as the case may be), deciding that the facts underlying a criminal conviction are egregious enough to warrant disbarment even if no criminal taint remains. Or even if the trial produced a not guilty verdict in the first place (although in that case it would perhaps be easier to argue different standards of proof).

Posted by: Soronel Haetir | Sep 12, 2022 12:28:16 AM

Absolutely not, he’s not entitled to get all those days back he spent incarcerated, not the expenses he paid for his representation. He shouldn’t get any money back he paid towards the resting ion order. He should be thanking God he got the pardon and move on, not wasting his time trying to un-ring the bell.

Posted by: Paul Tallini | Sep 12, 2022 8:05:40 AM

Allowing recovery of monies already in the hands of third parties would be rather problematic from a due process perspective. How long after restitution was paid would the President have the power to functionally create an IOU to be paid by the victims?

Doctrinally, a Federal pardon after sentence does not disturb the validity of the underlying conviction and sentence -- it merely releases the recipient from criminal consequences insofar as that is possible for the sovereign to grant. So you don't have a claim for unjust imprisonment because the conviction and judgment are still valid (but no longer enforceable). Likewise, because the victims got the money under a judgment that has not become invalid, there's no basis for requiring them to return the money already received.

Posted by: Jason | Sep 12, 2022 9:12:37 PM

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