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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: abuse of pardon power

Can Trump pardon himself? And other questions about misuse of the pardon power

15 Sunday Nov 2020

Posted by impeachableoffenses in Uncategorized

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abuse of pardon power, pardon, pardon power, Pardons and Fifth Amendment, self-pardon, Twenty-fifth Amendment

By Frank Bowman

In anticipation both that Mr. Trump would lose the recent election and that, on his way out the door, he would issue a spate of pardons, perhaps to himself, and certainly to others, I’ve been researching the issues presented by such a pardon spree. The results are now in an article: “Presidential Pardons and the Problem of Impunity,” which is available at this link.

In summary, I conclude that:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate. But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable. A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities. A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

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Celebrity pardons

06 Wednesday Jun 2018

Posted by impeachableoffenses in Uncategorized

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abuse of pardon power, abuse of pardon power as impeachable offense, Kim Kardashian, pardon power

By Frank Bowman

Today brings news that, at the behest of that well-known legal eagle and social justice crusader, Kim Kardashian, Mr. Trump has issued a presidential commutation of the life sentence imposed on a woman convicted of drug trafficking. While the issuance of a presidential commutation to this particular prisoner seems unobjectionable on the merits — she’s 63 and has already done 20 years — the process that produced it is profoundly dispiriting.  At the very same time that Trump’s Attorney General, Jeff Sessions, is rolling back Obama-era DOJ policies designed to reduce lengthy drug sentences for non-violent, first-time offenders, Trump picks one prisoner out of thousands … apparently because he got a personal plea from a buxom female celebrity.

One is reluctant to attribute too much cunning to any of Trump’s in-the-moment decisions, but starting to issue pardons to some folks who actually merit them by conventional standards would be a prudent precaution.  I’ve argued on this blog that Trump’s emerging pattern of employing pardons almost solely for political allies or for the purpose of signalling a willingness to pardon his own associates now under scrutiny by federal law enforcement could, if continued, form a plausible constitutional basis for impeachment.  Diluting the core of self-interested pardons with a stream of apparently disinterested displays of mercy would make the impeachment case much harder.

 

 

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The D’Souza pardon: Trump builds the case for his own impeachment

01 Friday Jun 2018

Posted by impeachableoffenses in Uncategorized

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abuse of pardon power, Arpaio pardon, D'Souza pardon, Libby pardon, Madison on pardon power, pardon power

By Frank Bowman

Mr. Trump just pardoned right-wing provocateur Dinesh D’Souza for federal campaign finance violations.  In isolation, this pardon is of little importance.  It is aggravating, of course, inasmuch as nothing about D’Souza’s case or personal history would seem to qualify him for such an extraordinary exercise of executive clemency.  To the contrary, he pled guilty to crimes he plainly committed, received a light sentence, and has been utterly unrepentant. Moreover, the pardon was issued completely outside of the normal painstaking review process which passes through the Justice Department’s Office of the Pardon Attorney.  It was just a Trumpian spasm.

A good many commentators have raged against the D’Souza pardon. Some contend that it is yet another indication of Trump’s contempt for the law. Others suggest that it may be a direct signal to Trump courtiers in the Special Counsel’s sights that they need not cooperate because pardons are freely available to friends of the man up top.  I agree with all these observations, but I take some solace in the realization that Mr. Trump’s gleeful deployment of a presidential power he imagines to be absolute is, in reality, adding to the case for his impeachment.

Mr. Trump is right that a president’s pardon power is nearly absolute.  Some academics have argued that a pardon can be reviewed and reversed by courts either on due process or separation of powers grounds.  Those arguments are almost certainly wrong. A president’s pardon of himself may be invalid as violating the fundamental common law principle that no man may be the judge of his own case, but even that is debatable.  However, to say that the pardon power is nearly absolute means only that a pardon, once issued, cannot be undone and the person pardoned cannot be unpardoned.  That does not mean that the pardoner — the president — is immune from consequences if he misuses his constitutional authority.

Indeed, it is absolutely clear that the Framers of the Constitution believed that a president could be impeached for misuse of the pardon power.

During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president.  He said:

Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison responded:

There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty….

In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment.

George Nicholas, another delegate to the Virginia convention, made a similar observation, suggesting that the American constitution was superior to British arrangements because the president was subject to impeachment for preemptive pardons of political allies.

These founding era statements are most obviously applicable to any effort by Mr. Trump to pardon political or business associates or family members under investigation by the Justice Department.  Use of the pardon power either to shield Mr. Trump personally from liability or to shield him from the political repercussions of criminal prosecutions of his intimates or supporters is indisputably an impeachable offense.

But I would go further.  Alexander Hamilton suggested in The Federalist Papers, No. 74, that the presidential pardon power had a twofold purpose: to provide a means of tempering with executive clemency the sometimes harsh results of rigid application of the law and as a tool of statecraft.  Hamilton’s example of the second purpose was the use of a well-timed pardon to potential rebels or insurrectionaries to prevent open conflict.  Over the succeeding centuries, multiple presidents have employed pardons and amnesties for reasons of state, often after hostilities to reconcile a divided country or region.  Notable illustrations include George Washington’s pardons of participants in the Whiskey Rebellion, Madison’s amnesties to deserters in the War of 1812, Andrew Johnson’s pardons of Confederates after the Civil War, and the post-Vietnam War pardons of draft law offenders by Presidents Ford and Carter.

Neither the mercy nor statecraft rationale for pardons can be extended to the issuance of pardons for partisan political ends.  Of course, one must tread carefully here because one man’s exercise of mercy or statecraft is another man’s partisan political maneuver.  Thomas Jefferson pardoned violators of the Alien and Sedition Acts because he thought that the Act was probably unconstitutional and certainly contrary to American principles.  But Jefferson had opposed the Acts in the first place and the pardons pleased his political supporters.  Barack Obama pardoned or commuted the sentences of hundreds of drug law violators.  For many observers, this was a long-overdue and even insufficient reaction to over-criminalization of narcotics offenses.  For Obama’s harsher critics, it could be portrayed as a pander to his electoral coalition.

Likewise, there is plainly some constitutional room for pure whimsicality in presidential judgment about what offenses deserve executive clemency.

Nonetheless, there is no obvious precedent for what appears to be an emerging pattern with Trump — pardons issued almost exclusively (1) to Trump political allies or fellow travelers, (2) to friends or friends of friends, or (3) for the purpose of sending political messages.  D’Souza and former Arizona sheriff Joe Arpaio plainly fall in the ally and fellow traveler box. In the second category is the pardon of Scooter Libby whose case seems to have been brought to Trump’s attention by Victoria Toensing, who with her husband and law partner Joe diGenova, is an ardent public defender of Trump and was briefly set to represent him. In the third category is the pardon of Kristian Mark Saucier.  Saucier was a sailor convicted of the unauthorized retention of defense information and Trump explicitly compared his treatment to the supposed failure of the Justice Department to prosecute a top Clinton aide.  Some have intimated that the Libby pardon also falls in the signaling category inasmuch as Libby was convicted of the kinds of crimes, perjury and obstruction of justice, that figure so heavily in the ongoing Mueller investigation.

The common feature of all these pardons is that none was issued following the ordinary DOJ and White House review processes created to avoid the actuality or appearance of presidential arbitrariness or favoritism.  Likewise, none of them was accompanied by any principled explanation of why the defendant merited an exercise of clemency.

I have argued elsewhere that the Arpaio pardon is technically an impeachable offense (although I have never imagined that, standing alone, the Arpaio case would generate an article of impeachment). None of the other pardons discussed here, considered in isolation, reaches that level.  Nor do we yet have a sufficient number of cases to prove an incontestable pattern of misuse of the pardon power for partisan purposes.

That said, when I teach evidence to law students, I sometimes use the following analogy to illustrate how lawyers go about satisfying the burden of proof necessary to win a lawsuit: Imagine, I tell the students, that the amount of evidence necessary to meet the burden of proof is a brick wall, about so long, and so wide, and so high.  To be relevant — that is, helpful in the task of meeting the burden of proof — no single piece of evidence has to be the size of a complete wall.  Each piece of relevant evidence is just a brick in that wall.

As a careful student of the Constitution’s impeachment clauses, I believe that a pattern of using the pardon power for partisan ends is an impeachable offense.  Such a pattern is not yet established in Mr. Trump’s case.  But the D’Souza pardon is a solid brick in an emerging wall of proof.  If Mr. Trump persists on his current path of misusing the pardon authority for personal aggrandizement and political gain, the D’Souza affair could properly take its place among a bill of particulars in an entirely appropriate article of impeachment.

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Trump Condemns Arpaio to Guilt

20 Friday Oct 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Abuse of Power, Arpaio, Arpaio pardon, bolton, pardon

According to this article, U.S. District Judge Susan Ritchie Bolton has held that President Trump’s pardon of Sheriff Arpaio only functions to stop his sentencing, and not to remove his guilt. In fact she claims it “implies a confession of guilt.” As such, the pardon issued by President Trump will forestall Arpaio from contesting the validity of his conviction on appeal.

Professor Frank Bowman has discussed at length how the Arpaio pardon is an impeachable offense. That discussion can be found here. In addition to a summary of the facts, the link above includes Judge Bolton’s written decision.

la-na-arpaio-timeline-20170801.jpgJoshua Lott / Getty Images

 

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Mueller in League with the States

11 Monday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, elizabeth holtzman, House Judiciary Committee, Mueller, pardon, state attorney general

This interview with Elizabeth Holtzman, former Congresswoman and member of the House Judiciary Committee during the Watergate Scandal, contemplates Robert Mueller’s work with New York Attorney General Eric Schneiderman in the investigation of Paul Manafort. Holtzman theorizes that in so doing, Mueller could avoid President Trump’s pardon power, and pressure Manafort to cooperate with his investigation.

Muller-June2017-rt-img.jpgReuters / Joshua Roberts

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Apples & Oranges: The Arpaio Pardon and President Obama’s Drug Sentence Commutations

06 Wednesday Sep 2017

Posted by impeachableoffenses in Uncategorized

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abuse of pardon power, Arpaio pardon, Clemency Initiative, Marc Rich pardon, Obama clemency, pardon as impeachable offense, pardon power

In a series of posts over the past week, I argued that Mr. Trump’s pardon of former Arizona sheriff Joe Arpaio constituted an impeachable offense.  This suggestion has drawn a variety of responses, some of them printable on a family-oriented blog, and others not so much.

A common theme among those resistant to my thesis was to ask, “Well, what about President Clinton’s pardon of Marc Rich?”  Or, “What about President Obama’s pardon of all those drug dealers?”  The easy response to this sort of question is simply to ignore it as “what-about-ism” — the tendency on both sides of the political spectrum to deflect attention from the misdeeds of one’s own leaders by pointing to allegedly equal misconduct by the leaders of the other side.

Taking “What-about-ists” seriously

But in some cases, what-about-ism, though intellectually lazy, raises issues that deserve a serious response.  The best method of determining if there is a real argument lurking behind the laziness begins by turning the question back on the What-about-ist, and asking him, “Well, what about it?” In other words, what implication would you have me draw from the past event to which you are comparing the present event I’m analyzing?

If one can draw a What-about-ist this far into a dialogue, the response will customarily take one of two forms.

Either the What-about-ist will say that the past act by someone on your “side” (for example, a Clinton pardon or Obama sentence commutation) was no different in kind than the current act by someone on his “side” (Trump’s Arpaio pardon), and thus the fact nothing was done to the person on your “side” (Clinton and Obama were not impeached and removed from office) proves that what the person on his “side” did is perfectly fine. Or the What-about-ist will tacitly concede that, although the current act by someone on his “side” might have been questionable, the fact that someone on your “side” did something comparable in the past and you didn’t complain about it at the time makes you a hypocrite.

A sophisticated What-about-ist might go further and maintain that the lack of past complaints or concrete action against someone on your “side” creates what lawyers would call an “equitable estoppel” — that is, having failed to complain about fouls by someone on your team, you can’t complain about the same foul by someone on theirs.

Note that for any of these arguments to succeed, even as rhetorical weapons, the past act raised by the What-about-ist has to be genuinely comparable to the present sin under discussion.  If the past event raised by the What-about-ist turns out to be quite different than the present sin, then the What-about-ist’s argument collapses.

Of course, even where the present and past cases are comparable, most what-about-ist arguments are nothing more than diversions.  It obviously won’t do to say, “Since your guy committed murder and got away with it, my guy should be able to murder, too.”  But sometimes an apparently shallow what-about-ism raises authentically important questions. This is particularly true where the core of the dispute is about acceptable legal or political norms.

Impeachment is a classic example.  Other than treason and bribery, the constitution does not list the particular behaviors that constitute an impeachable offense.  Article II, Section 4 speaks of “high crimes and misdemeanors,” but the meaning of those terms has been debated for over two centuries.  Therefore, when considering what should count as an impeachable offense for a president, it is reasonable to examine past presidential behavior of the same general type to determine: (a) if it really is comparable to the current supposedly impeachable behavior, and (b) whether the past and current behavior conforms to law and constitutional norms of presidential action.

So let’s examine President Obama’s use of the pardon power.

Obama’s sentence commutations for drug offenders

President Obama granted some form of executive clemency to 1927 federal defendants.  Of these, only 212 were outright pardons, which effectively wipe out the criminal conviction and all its civil and criminal consequences.  The remainder were not full pardons, but sentence reductions called “commutations” that also come within the president’s Article II, Section 2 authority to grant “reprieves and pardons.”  Virtually all the commutations were issued as part of an official U.S. Justice Department “Clemency Initiative” directed at non-violent drug offenders at low risk of recidivism who would have received lower sentences today than when they were originally sentenced because of later changes in harsh drug laws.  Priority was given to inmates who had already served at least ten years in prison.  The task of identifying candidates for clemency was shared by two units of the Justice Department, the Office of the Pardon Attorney and the U.S. Bureau of Prisons, aided by volunteer lawyers coordinated by the Clemency Project 2014, which was a joint undertaking of the American Bar Association, the National Association of Criminal Defense Lawyers, the Federal Defenders, the American Civil Liberties Union, and Families Against Mandatory Minimums.  In total, more than 24,000 offenders petitioned for relief under the program, and President Obama commuted the sentences of 1,696.

Although the federal judiciary maintained official silence, the DOJ Clemency Initiative enjoyed broad support among judges, many of whom have long been critical of lengthy quantity-based mandatory drug sentences.  Likewise, the U.S. Sentencing Commission, which has always opposed lengthy mandatory sentences and has in recent years passed a series of guidelines amendments reducing guidelines sentences for many drug offenses, recently issued a report on the effect of the Obama commutations that remains studiously neutral on its face, but exudes disappointment that the Clemency Initiative did not produce more commutations.  The Clemency Initiative drew sharp criticism from some House Republicans, but enjoyed nearly universal approval among Democrats and widespread tacit approval from many Republicans as one stop-gap method of ameliorating overlong mandatory sentences in the interim until Congress could agree on comprehensive statutory reform.

Consider the differences between the Obama clemency initiative and the Arpaio pardon:

First, the Obama clemency grants were not full pardons.  Their recipients did not have their convictions voided and they remain subject to all the civil disabilities (like loss of voting rights or eligibility for aid programs) that dog ex-offenders in many states.  Moreover, those receiving clemency had already served some portion of their sentences, often many years.  By contrast, Mr. Trump gave Arpaio a full pardon, and did so in advance of sentencing.  Hence, Arpaio will never suffer any incarcerative punishment and will never lose any civil rights for having a felony conviction.

Second, the Obama clemency grants were the product of an official Justice Department program, sanctioned by the Attorney General and operated through regular administrative channels pursuant to internal rules and procedures and subject to multiple layers of review.  Moreover, the clemency process was facilitated with the active and enthusiastic participation of the organized American bar.  By contrast, the Arpaio pardon was not awarded as part of any program, and was not vetted by the Justice Department or recommended by the U.S. Pardon Attorney.  It was instead a personal whim of the President undertaken, according to published reports, only after Mr. Trump was told by Attorney General Sessions that trying to short-circuit Arpaio’s sentencing by ordering DOJ to drop the case would be inappropriate.

Third, the Obama clemency grants were part of a broad bipartisan shift in criminal justice policy toward de-emphasis of lengthy incarceration, particularly for non-violent drug offenders.  By the time of the DOJ Clemency Initiative, this shift had already manifested itself in congressional enactment of new statutes and U.S. Sentencing Commission amendments to sentencing guidelines lowering sentences of many federal drug defendants.  A primary objective of the clemency program was to afford relief to defendants sentenced before the effective dates of these ameliorative amendments who would otherwise receive no benefit from them.  By contrast, the Arpaio pardon was not part of any policy initiative.  It was a reward to a political supporter.

Fourth, the Obama clemency grants did not undermine the authority of the judges who originally imposed the sentences Obama commuted, or the authority of the judiciary generally.  The clemency grants did not void the judgments of conviction entered by those judges or restore to the clemency beneficiaries any rights or privileges forfeited due to the conviction.  All Obama did was to reduce the sentences of beneficiaries to levels consistent with current law.  In many cases, indeed, the clemency grants had the effect of imposing sentences commensurate with what judges would have done had their discretion not been limited by mandatory sentences.  By contrast, the Arpaio pardon undermined the authority both of the judge who was about to sentence Arpaio and of judges generally.  Not only did Arpaio escape any punishment for his repeated, flagrant, and notorious violations of federal court orders, but the pardon sent the message that those who support Mr. Trump politically can ignore the lawful orders of the federal judiciary.

This is not to say that no one objected to President Obama’s clemency program.  Some Republican congressmen did.  But mere disapproval of a presidential pardon by some officeholders in another branch neither voids the pardon nor renders it an abuse of authority meriting impeachment.  The most credible argument advanced by Republican critics was that the Obama clemency program encroached on legislative prerogatives by lowering sentences below levels that Congress had previously mandated by statute, not just for one or two offenders, but for a large number of persons.  This was not a wholly frivolous complaint.  But its force was greatly diminished by the fact that Congress itself had recently passed statutes, and the Sentencing Commission had adopted with congressional approval guidelines amendments, the effect of which was to grant the same type of relief to thousands of defendants who happened to have committed their crimes more recently.  Congress could kvetch that Obama should have waited for additional legislation giving retroactive relief to older cases or additional relief to more defendants, but it could hardly claim that the clemency initiative was fundamentally at odds with the direction of its own recent actions.

Moreover, historically, the scale of Obama’s use of his clemency authority was not that impressive.  Since 1900, Obama ranks only fifth among presidents for total pardons and commutations.  As for outright pardons, he issued fewer (212) than any president other than the two Presidents Bush.  And these rankings don’t even count the thousands of Vietnam-era draft law violators given a blanket pardon by President Carter.

In short, President Obama’s commutations of drug sentences bear no resemblance to Mr. Trump’s pardon of Arpaio.  Mr. Obama acted deliberately and in collaboration with criminal justice authorities and experts in and outside of the executive branch to award carefully calibrated sentence reductions to a subset of persons otherwise unable to obtain sentence relief under recent changes of the law.  Mr. Trump ignored all advice from inside and outside the criminal justice organs of the executive branch, and acted both precipitously and alone to protect a political ally and consciously undercut the authority of the federal judiciary to protect the civil liberties of disadvantaged minorities.

Clinton’s pardon of March Rich

I covered President Clinton’s pardon of fugitive financier Marc Rich in an earlier post.  I agreed that the Rich pardon was reprehensible and, quite plausibly, an impeachable offense (albeit one rendered moot by the fact that it was issued on the last day of Mr. Clinton’s term).  In short, the fact that Mr. Clinton behaved disgracefully, but got away with it by waiting to the last minute to place one last smudge on his deservedly tarnished legacy, provides no reason to excuse Mr. Trump.

Bottom line

In the end, what-about-ist responses to the Arpaio pardon have no heft. Indeed, comparing the Arpaio pardon to the supposedly outrageous examples of yore serves primarily to illustrate how greatly Mr. Trump deviated from acceptable historical norms.

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Johnson-Trump Parallels

04 Monday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Congress, constitutional crisis, johnson

This article, referenced in yesterday’s post, from the Journal of the Civial War Era, examines the parellels between President Trump and President Johnson, with a special consideration for abuse of pardon power.

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People are Talking Arpaio

03 Sunday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Arpaio, impeachableoffenses.net, new york times, pardon, slate

News sources and blogs alike have been discussing Prof. Frank Bowman’s analysis of President Trump’s pardon of Arpaio, which can be found both here and on slate.com. Notably, the New York Times highlighted Professor Bowman and the work he has done on impeachableoffenses.net for its centrist perspective. Additionally, Professor Bowman’s argument was referenced and summarized in this article published by the Independent. Many others cited the argument as well including Metro, the Journal of the Civil War Era, NJ Today, Outside the Beltway, and BillMoyers.com. We here on impeachableoffenses.net look forward to more lively commentary in the near future!

636274475421162300-PNILaVoz-08-01-2014-LaVoz-1-A004--2014-07-31-IMG-VOZ0801-Arpaio.jpg-1-1-K08487AU-L460306135-IMG-VOZ0801-Arpai.jpgDavid Wallace/The Republic

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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